Poli-judicial Dept.docx

G.R. No. 180771

April 21, 2015

RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPE TAÑON STRAIT, e.g., TOOTHED WHALES, DOLPHINS, PORPOISES, AND OTHER CETACEAN SPECIES, Joined in and Represented herein by Human Beings Gloria Estenzo Ramos and Rose-Liza Eisma-Osorio, In Their Capacity as Legal Guardians of the Lesser Life-Forms and as Responsible Stewards of God's Creations, Petitioners, vs. SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy (DOE), SECRETARY JOSE L. ATIENZA, in his capacity as Secretary of the Department of Environment and Natural Resources (DENR), LEONARDO R. SIBBALUCA, DENR Regional Director-Region VII and in his capacity as Chairperson of the Tañon Strait Protected Seascape Management Board, Bureau of Fisheries and Aquatic Resources (BFAR), DIRECTOR MALCOLM J. SARMIENTO, JR., BFAR Regional Director for Region VII ANDRES M. BOJOS, JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), as represented by its Philippine Agent, SUPPLY OILFIELD SERVICES, INC. Respondents. x-----------------------x G.R. No. 181527 CENTRAL VISAYAS FISHERFOLK DEVELOPMENT CENTER (FIDEC), CERILO D. ENGARCIAL, RAMON YANONG, FRANCISCO LABID, in their personal capacity and as representatives of the SUBSISTENCE FISHERFOLKS OF THE MUNICIPALITIES OF ALOGUINSAN AND PINAMUNGAJAN, CEBU, AND THEIR FAMILIES, AND THE PRESENT AND FUTURE GENERATIONS OF FILIPINOS WHOSE RIGHTS ARE SIMILARLY AFFECTED, Petitioners, vs. SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy (DOE), JOSE L. ATIENZA, in his capacity as Secretary of the Department of Environment and Natural Resources (DENR), LEONARDO R. SIBBALUCA, in his capacity as DENR Regional Director-Region VII and as Chairperson of the Tañon Strait Protected Seascape Management Board, ALAN ARRANGUEZ, in his capacity as Director - Environmental Management Bureau-Region VII, DOE Regional Director for Region VIII1 ANTONIO LABIOS, JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), as represented by its Philippine Agent, SUPPLY OILFIELD SERVICES, INC., Respondents. DECISION LEONARDO-DE CASTRO, J.: Before Us are two consolidated Petitions filed under Rule 65 of the 1997 Rules of Court, concerning Service Contract No. 46 (SC-46), which allowed the exploration, development, and exploitation of petroleum resources within Tañon Strait, a narrow passage of water situated between the islands of Negros and Cebu. 2 The Petition docketed as G.R. No. 180771 is an original Petition for Certiorari, Mandamus, and Injunction, which seeks to enjoin respondents from implementing SC-46 and to have it nullified for willful and gross violation of the 1987 Constitution and certain international and municipal laws.3 Likewise, the Petition docketed as G.R. No. 181527 is an original Petition for Certiorari, Prohibition, and Mandamus, which seeks to nullify the Environmental Compliance Certificate (ECC) issued by the Environmental Management Bureau (EMB) of the Department of Environment and Natural Resources (DENR), Region VII in connection with SC-46; to prohibit respondents from implementing SC-46; and to compel public respondents to provide petitioners access to the pertinent documents involving the Tañon Strait Oil Exploration Project. 4 ANTECEDENT FACTS AND PROCEEDINGS Petitioners in G.R. No. 180771, collectively referred to as the "Resident Marine Mammals" in the petition, are the toothed whales, dolphins, porpoises, and other cetacean species, which inhabit the waters in and around the Tañon Strait. They are joined by Gloria Estenzo Ramos (Ramos) and Rose-Liza Eisma-Osorio (Eisma-Osorio) as their legal guardians and as friends (to be collectively known as "the Stewards") who allegedly empathize with,

and seek the protection of, the aforementioned marine species. Also impleaded as an unwilling co-petitioner is former President Gloria Macapagal-Arroyo, for her express declaration and undertaking in the ASEAN Charter to protect the Tañon Strait, among others.5 Petitioners in G.R. No. 181527 are the Central Visayas Fisherfolk Development Center (FIDEC), a non-stock, non-profit, non-governmental organization, established for the welfare of the marginal fisherfolk in Region VII; and Cerilo D. Engarcial (Engarcial), Ramon Yanong (Yanong) and Francisco Labid (Labid), in their personal capacities and as representatives of the subsistence fisherfolk of the municipalities of Aloguinsan and Pinamungajan, Cebu. Named as respondents in both petitions are the late Angelo T. Reyes, as then Secretary of the Department of Energy (DOE); Jose L. Atienza, as then Secretary of the DENR; Leonardo R. Sibbaluca, as then DENRRegional Director for Region VII and Chairman of the Tañon Strait Protected Seascape Management Board; Japan Petroleum Exploration Co., Ltd. (JAPEX), a company organized and existing under the laws of Japan with a Philippine branch office; and Supply Oilfield Services, Inc. (SOS), as the alleged Philippine agent of JAPEX. In G.R. No. 181527, the following were impleaded as additional public respondents: Alan C. Arranguez (Arranguez) and Antonio Labios (Labios), in their capacities as then Director of the EMB, Region VII and then Regional Director of the DOE, Region VII, respectively. 6 On June 13, 2002, the Government of the Philippines, acting through the DOE, entered into a Geophysical Survey and Exploration Contract-I 02 (GSEC-102) with JAPEX. This contract involved geological and geophysical studies of the Tañon Strait. The studies included surface geology, sample analysis, and reprocessing of seismic and magnetic data. JAPEX, assisted by DOE, also conducted geophysical and satellite surveys, as well as oil and gas sampling in Tañon Strait.7 On December 21, 2004, DOE and JAPEX formally converted GSEC-102 into SC-46 for the exploration, development, and production of petroleum resources in a block covering approximately 2,850 square kilometers offshore the Tañon Strait.8 From May 9 to 18, 2005, JAPEX conducted seismic surveys in and around the Tañon Strait. A multi-channel subbottom profiling covering approximately 751 kilometers was also done to determine the area's underwater composition.9 JAPEX committed to drill one exploration well during the second sub-phase of the project. Since the well was to be drilled in the marine waters of Aloguinsan and Pinamungajan, where the Tañon Strait was declared a protected seascape in 1988,10 JAPEX agreed to comply with the Environmental Impact Assessment requirements pursuant to Presidential Decree No. 1586, entitled "Establishing An Environmental Impact Statement System, Including Other Environmental Management Related Measures And For Other Purposes."11 On January 31, 2007, the Protected Area Management Board12 of the Tañon Strait (PAMB-Tañon Strait) issued Resolution No. 2007-001,13 wherein it adopted the Initial Environmental Examination (IEE) commissioned by JAPEX, and favorably recommended the approval of JAPEX's application for an ECC. On March 6, 2007, the EMB of DENR Region VII granted an ECC to the DOE and JAPEX for the offshore oil and gas exploration project in Tañon Strait.14 Months later, on November 16, 2007, JAPEX began to drill an exploratory well, with a depth of 3,150 meters, near Pinamungajan town in the western Cebu Province. 15 This drilling lasted until February 8, 2008.16 It was in view of the foregoing state of affairs that petitioners applied to this Court for redress, via two separate original petitions both dated December 1 7, 2007, wherein they commonly seek that respondents be enjoined from implementing SC-46 for, among others, violation of the 1987 Constitution. On March 31, 2008, SOS filed a Motion to Strike17 its name as a respondent on the ground that it is not the Philippine agent of JAPEX. In support of its motion, it submitted the branch office application of JAPEX, 18 wherein the latter's resident agent was clearly identified. SOS claimed that it had acted as a mere logistics contractor for JAPEX in its oil and gas exploration activities in the Philippines.

Petitioners Resident Marine Mammals and Stewards opposed SOS' s motion on the ground that it was premature, it was pro-forma, and it was patently dilatory. They claimed that SOS admitted that "it is in law a (sic) privy to JAPEX" since it did the drilling and other exploration activities in Tañon Strait under the instructions of its principal, JAPEX. They argued that it would be premature to drop SOS as a party as JAPEX had not yet been joined in the case; and that it was "convenient" for SOS to ask the Court to simply drop its name from the parties when what it should have done was to either notify or ask JAPEX to join it in its motion to enable proper substitution. At this juncture, petitioners Resident Marine Mammals and Stewards also asked the Court to" implead JAPEX Philippines as a corespondent or as a substitute for its parent company, JAPEX. 19 On April 8, 2008, the Court resolved to consolidate G.R. No. 180771 and G.R. No. 181527. On May 26, 2008, the FIDEC manifested20 that they were adopting in toto the Opposition to Strike with Motion to Implead filed by petitioners Resident Marine Mammals and Stewards in G.R. No. 180771. On June 19, 2008, public respondents filed their Manifestation21 that they were not objecting to SOS's Motion to Strike as it was not JAPEX's resident agent. JAPEX during all this time, did not file any comment at all. Thus, on February 7, 2012, this Court, in an effort to ensure that all the parties were given ample chance and opportunity to answer the issues herein, issued a Resolution directing the Court's process servicing unit to again serve the parties with a copy of the September 23, 2008 Resolution of the Court, which gave due course to the petitions in G.R. Nos. 180771 and 181527, and which required the parties to submit their respective memoranda. The February 7, 2012 Resolution22 reads as follows: G.R. No. 180771 (Resident Marine Mammals of the Protected Seascape Tañon Strait, e.g., Toothed Whales, Dolphins, Porpoises and Other Cetacean Species, et al. vs. Hon. Angelo Reyes, in his capacity as Secretary of the Department of Energy, et al.) and G.R. No. 181527 (Central Visayas Fisherfolk Development Center, et al. vs. Hon. Angelo Reyes, et al.). - The Court Resolved to direct the Process Servicing Unit to RE-SEND the resolution dated September 23, 2008 to the following parties and counsel, together with this resolution: Atty. Aristeo O. Carino Counsel for Respondent Supply Oilfield Services, Inc.

20th Floor Pearlbank Centre 146 Valero Street Salcedo Village, Makati City

JAPEX Philippines Ltd.

20th Floor Pearlbank Centre 146 Valero Street Salcedo Village, Makati City

JAPEX Philippines Ltd. c/o Atty. Maria Farah Z.G. Nicolas-Suchianco

19th Floor Pearlbank Centre 146 Valero Street Salcedo Village, Makati City

Atty. Maria Farah Z.G. Nicolas-Suchianco Resident Agent of JAPEX Philippines Ltd.

Suite 2404 Discovery Centre 25 ADB Avenue Ortigas Center, Pasig City

This Resolution was personally served to the above parties, at the above addresses on February 23, 2012. On March 20, 2012, JAPEX Philippines, Ltd. (JAPEX PH), by way of special appearance, filed a Motion to Admit 23 its Motion for Clarification,24 wherein JAPEX PH requested to be clarified as to whether or not it should deem the February 7, 2012 Resolution as this Court's Order of its inclusion in the case, as it has not been impleaded. It also alleged that JAPEX PH had already stopped exploration activities in the Taft. on Strait way back in 2008, rendering this case moot. On March 22, 2012, JAPEX PH, also by special appearance, filed a Motion for Extension of Time 25 to file its Memorandum. It stated that since it received the February 7, 2012 Resolution on February 23, 2012, it had until March 22, 2012 to file its Memorandum. JAPEX PH then asked for an additional thirty days, supposedly to give this Court some time to consider its Motion for Clarification.

On April 24, 2012, this Court issued a Resolution26 granting JAPEX PH's Motion to Admit its Motion for Clarification. This Court, addressing JAPEX PH's Motion for Clarification, held: With regard to its Motion for Clarification (By Special Appearance) dated March 19, 2012, this Court considers JAPEX Philippines, Ltd. as a real party-in-interest in these cases. Under Section 2, Rule 3 of the 1997 Rules of Court, a real party-in-interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Contrary to JAPEX Philippines, Ltd. 's allegation that it is a completely distinct corporation, which should not be confused with JAPEX Company, Ltd., JAPEX Philippines, Ltd. is a mere branch office, established by JAPEX Company, Ltd. for the purpose of carrying out the latter's business transactions here in the Philippines. Thus, JAPEX Philippines, Ltd., has no separate personality from its mother foreign corporation, the party impleaded in this case. Moreover, Section 128 of the Corporation Code provides for the responsibilities and duties of a resident agent of a foreign corporation: SECTION 128. Resident agent; service of process. - The Securities and Exchange Commission shall require as a condition precedent to the issuance of the license to transact business in the Philippines by any foreign corporation that such corporation file with the Securities and Exchange Commission a written power of attorney designating some person who must be a resident of the Philippines, on whom any summons and other legal processes may be served in all actions or other legal proceedings against such corporation, and consenting that service upon such resident agent shall be admitted and held as valid as if served upon the duly authorized officers of the foreign corporation at its home office. Any such foreign corporation shall likewise execute and file with the Securities and Exchange Commission an agreement or stipulation, executed by the proper authorities of said corporation, in form and substance as follows: "The (name of foreign corporation) does hereby stipulate and agree, in consideration of its being granted by the Securities and Exchange Commission a license to transact business in the Philippines, that if at any time said corporation shall cease to transact business in the Philippines, or shall be without any resident agent in the Philippines on whom any summons or other legal processes may be served, then in any action or proceeding arising out of any business or transaction which occurred in the Philippines, service of any summons or other legal process may be made upon the Securities and Exchange Commission and that such service shall have the same force and effect as if made upon the duly-authorized officers of the corporation at its home office." Whenever such service of summons or other process shall be made upon the Securities and Exchange Commission, the Commission shall, within ten (10) days thereafter, transmit by mail a copy of such summons or other legal process to the corporation at its home or principal office. The sending of such copy by the Commission shall be a necessary part of and shall complete such service. All expenses incurred by the Commission for such service shall be paid in advance by the party at whose instance the service is made. In case of a change of address of the resident agent, it shall be his or its duty to immediately notify in writing the Securities and Exchange Commission of the new address. It is clear from the foregoing provision that the function of a resident agent is to receive summons or legal processes that may be served in all actions or other legal proceedings against the foreign corporation. These cases have been prosecuted in the name of JAPEX Company, Ltd., and JAPEX Philippines Ltd., as its branch office and resident agent, had been receiving the various resolutions from this Court, as evidenced by Registry Return Cards signed by its representatives. And in the interest of justice, this Court resolved to grant JAPEX PH's motion for extension of time to file its memorandum, and was given until April 21, 2012, as prayed for, within which to comply with the submission.27 Without filing its Memorandum, JAPEX PH, on May 14, 2012, filed a motion, asking this Court for an additional thirty days to file its Memorandum, to be counted from May 8, 2012. It justified its request by claiming that this Court's April 24, 2012 Resolution was issued past its requested deadline for filing, which was on April 21, 2012. 28 On June 19, 2012, this Court denied JAPEX PH's second request for additional time to file its Memorandum and dispensed with such filing.

Since petitioners had already filed their respective memoranda,29 and public respondents had earlier filed a Manifestation30 that they were adopting their Comment dated March 31, 2008 as their memorandum, this Court submitted the case for decision. Petitioners.' Allegations Protesting the adverse ecological impact of JAPEX's oil exploration activities in the Tañon Strait, petitioners Resident Marine Mammals and Stewards aver that a study made after the seismic survey showed that the fish catch was reduced drastically by 50 to 70 percent. They claim that before the seismic survey, the average harvest per day would be from 15 to 20 kilos; but after the activity, the fisherfolk could only catch an average of 1 to 2 kilos a day. They attribute this "reduced fish catch" to the destruction of the ''payao," also known as the "fish aggregating device" or "artificial reef."31 Petitioners Resident Marine Mammals and Stewards also impute the incidences of "fish kill"32observed by some of the local fisherfolk to the seismic survey. And they further allege that the ECC obtained by private respondent JAPEX is invalid because public consultations and discussions with the affected stakeholders, a pre-requisite to the issuance of the ECC, were not held prior to the ECC's issuance. In its separate petition, petitioner FIDEC confirms petitioners Resident Marine Mammals and Stewards' allegations of reduced fish catch and lack of public consultations or discussions with the fisherfolk and other stakeholders prior to the issuance of the ECC. Moreover, it alleges that during the seismic surveys and drilling, it was barred from entering and fishing within a 7-kilometer radius from the point where the oilrig was located, an area greater than the 1.5-kilometer radius "exclusion zone" stated in the IEE. 33 It also agrees in the allegation that public respondents DENR and EMB abused their discretion when they issued an ECC to public respondent DOE and private respondent JAPEX without ensuring the strict compliance with the procedural and substantive requirements under the Environmental Impact Assessment system, the Fisheries Code, and their implementing rules and regulations.34It further claims that despite several requests for copies of all the documents pertaining to the project in Tañon Strait, only copies of the P AMB-Tañon Strait Resolution and the ECC were given to the fisherfolk.35 Public Respondents' Counter-Allegations Public respondents, through the Solicitor General, contend that petitioners Resident Marine Mammals and Stewards have no legal standing to file the present petition; that SC-46 does not violate the 1987 Constitution and the various laws cited in the petitions; that the ECC was issued in accordance with existing laws and regulations; that public respondents may not be compelled by mandamus to furnish petitioners copies of all documents relating to SC-46; and that all the petitioners failed to show that they are entitled to injunctive relief. They further contend that the issues raised in these petitions have been rendered moot and academic by the fact that SC-46 had been mutually terminated by the parties thereto effective June 21, 2008.36 ISSUES The following are the issues posited by petitioners Resident Marine Mammals and Stewards in G.R. No. 180771: I. WHETHER OR NOT PETITIONERS HAVE LOCUS STAND! TO FILE THE INSTANT PETITION; II. WHETHER OR NOT SERVICE CONTRACT NO. 46 IS VIOLA T[IVE] OF THE 1987 PHILIPPINE CONSTITUTION AND STATUTES; III. WHETHER OR NOT THE ON-GOING EXPLORATION AND PROPOSED EXPLOITATION FOR OIL AND NATURAL GAS AT, AROUND, AND UNDERNEATH THE MARINE WATERS OF THE TAÑON STRAIT PROTECTED SEASCAPE IS INCONSISTENT WITH THE PHILIPPINE COMMITMENTS TO INTERNATIONAL ENVIRONMENTAL LAWS AND INSTRUMENTS; AND IV. WHETHER OR NOT THE ISSUANCE OF THE ENVIRONMENTAL COMPLIANCE CERTIFICATE (ECC) IN ENVIRONMENTALLY CRITICAL AREAS AND HABITATS OF MARINE WILDLIFE AND ENDANGERED SPECIES IS LEGAL AND PROPER.37

Meanwhile, in G.R. No. 181527, petitioner FIDEC presented the following issues for our consideration: I. WHETHER OR NOT SERVICE CONTRACT NO. 46 EXECUTED BETWEEN RESPONDENTS DOE AND JAPEX SHOULD BE NULLIFIED AND SET ASIDE FOR BEING IN DIRECT VIOLATION OF SPECIFIC PROVISIONS OF THE 1987 PHILIPPINE CONSTITUTION AND APPLICABLE LAWS; II. WHETHER OR NOT THE OFF-SHORE OIL EXPLORAT[I]ON CONTEMPLATED UNDER SERVICE CONTRACT NO. 46 ·IS LEGALLY PERMISSIBLE WITHOUT A LAW BEING DULY PASSED EXPRESSLY FOR THE PURPOSE; III. WHETHER OR NOT THE OIL EXPLORATION BEING CONDUCTED WITHIN THE TAÑON STRAIT PROTECTED SEASCAPE VIOLATES THE RIGHTS AND LEGAL PROTECTION GRANTED TO PETITIONERS UNDER THE CONSTITUTION AND APPLICABLE LAWS. IV. WHETHER OR NOT THE ISSUANCE OF THE ENVIRONMENTAL COMPLIANCE CERTIFICATE (ECC) FOR SUCH AN ENVIRONMENTALLY CRITICAL PROJECT INSIDE AN ENVIRONMENTALLY CRITICAL AREA SUCH AS THE TAÑON STRAIT PROTECTED SEASCAPE CONFORMED TO LAW AND EXISTING RULES AND REGULATIONS ON THE MATTER. V. WHETHER OR NOT THE RESPONDENTS MAY BE COMPELLED BY MANDAMUS TO FURNISH PETITIONERS WITH COPIES OF THE DOCUMENTS PERTAINING TO THE TAÑON STRAIT OIL EXPLORATION PROJECT.38 In these consolidated petitions, this Court has determined that the various issues raised by the petitioners may be condensed into two primary issues: I. Procedural Issue: Locus Standi of the Resident Marine Mammals and Stewards, petitioners in G.R. No. 180771; and II. Main Issue: Legality of Service Contract No. 46. DISCUSSION At the outset, this Court makes clear that the "'moot and academic principle' is not a magical formula that can automatically dissuade the courts in resolving a case." Courts have decided cases otherwise moot and academic under the following exceptions: 1) There is a grave violation of the Constitution; 2) The exceptional character of the situation and the paramount public interest is involved; 3) The constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and 4) The case is capable of repetition yet evading review.39 In this case, despite the termination of SC-46, this Court deems it necessary to resolve these consolidated petitions as almost all of the foregoing exceptions are present in this case. Both petitioners allege that SC-46 is violative of the Constitution, the environmental and livelihood issues raised undoubtedly affect the public's interest, and the respondents' contested actions are capable of repetition. Procedural Issues Locus Standi of Petitioners Resident Marine Mammals and Stewards

The Resident Marine Mammals, through the Stewards, "claim" that they have the legal standing to file this action since they stand to be benefited or injured by the judgment in this suit. 40 Citing Oposa v. Factoran, Jr.,41 they also assert their right to sue for the faithful performance of international and municipal environmental laws created in their favor and for their benefit. In this regard, they propound that they have the right to demand that they be accorded the benefits granted to them in multilateral international instruments that the Philippine Government had signed, under the concept of stipulation pour autrui.42 For their part, the Stewards contend that there should be no question of their right to represent the Resident Marine Mammals as they have stakes in the case as forerunners of a campaign to build awareness among the affected residents of Tañon Strait and as stewards of the environment since the primary steward, the Government, had failed in its duty to protect the environment pursuant to the public trust doctrine. 43 Petitioners Resident Marine Mammals and Stewards also aver that this Court may lower the benchmark in locus standi as an exercise of epistolary jurisdiction.44 In opposition, public respondents argue that the Resident Marine Mammals have no standing because Section 1, Rule 3 of the Rules of Court requires parties to an action to be either natural or juridical persons, viz.: Section 1. Who may be parties, plaintiff and defendant. - Only natural or juridical persons, or entities authorized by law may be parties in a civil action. The term "plaintiff' may refer to the claiming party, the counter-claimant, the cross-claimant, or the third (fourth, etc.)-party plaintiff. The term "defendant" may refer to the original defending party, the defendant in a counterclaim, the cross-defendant, or the third (fourth, etc.)-party defendant. The public respondents also contest the applicability of Oposa, pointing out that the petitioners therein were all natural persons, albeit some of them were still unborn.45 As regards the Stewards, the public respondents likewise challenge their claim of legal standing on the ground that they are representing animals, which cannot be parties to an action. Moreover, the public respondents argue that the Stewards are not the real parties-in-interest for their failure to show how they stand to be benefited or injured by the decision in this case.46 Invoking the alter ego principle in political law, the public respondents claim that absent any proof that former President Arroyo had disapproved of their acts in entering into and implementing SC-46, such acts remain to be her own.47 The public respondents contend that since petitioners Resident Marine Mammals and Stewards' petition was not brought in the name of a real party-in-interest, it should be dismissed for failure to state a cause of action.48 The issue of whether or not animals or even inanimate objects should be given legal standing in actions before courts of law is not new in the field o f animal rights and environmental law. Petitioners Resident Marine Mammals and Stewards cited the 1972 United States case Sierra Club v. Rogers C.B. Morton,49 wherein Justice William 0. Douglas, dissenting to the conventional thought on legal standing, opined: The critical question of "standing" would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage. x x x. Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. The corporation sole - a creature of ecclesiastical law - is an acceptable adversary and large fortunes ride on its cases. The ordinary corporation is a "person" for purposes of the adjudicatory processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes. So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modem technology and modem life. The river, for example, is the living symbol of all the life it sustains or nourishes-fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water-whether it be a fisherman, a canoeist, a zoologist, or a logger-must be able to speak for the values which the river represents and which are threatened with destruction.50 (Citations omitted.)

The primary reason animal rights advocates and environmentalists seek to give animals and inanimate objects standing is due to the need to comply with the strict requirements in bringing a suit to court. Our own 1997 Rules of Court demand that parties to a suit be either natural or juridical persons, or entities authorized by law. It further necessitates the action to be brought in the name of the real party-in-interest, even if filed by a representative, viz.: Rule 3 Parties to Civil Actions Section 1. Who may be parties; plaintiff and defendant. - Only natural or juridical persons, or entities authorized by law may be parties in a civil action. The term "plaintiff' may refer to the claiming party, the counter-claimant, the cross-claimant, or the third (fourth, etc.)-party plaintiff. The term "defendant" may refer to the original defending party, the defendant in a counterclaim, the cross-defendant, or the third (fourth, etc.)-party defendant. Sec. 2. Parties in interest. - A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in interest. Sec. 3. Representatives as parties. - Where the action is allowed to be prosecuted or defended by a representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest. A representative may be a trustee of an express trust, a guardian, an executor or administrator, or a party authorized by law or these Rules. An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal. It had been suggested by animal rights advocates and environmentalists that not only natural and juridical persons should be given legal standing because of the difficulty for persons, who cannot show that they by themselves are real parties-in-interests, to bring actions in representation of these animals or inanimate objects. For this reason, many environmental cases have been dismissed for failure of the petitioner to show that he/she would be directly injured or affected by the outcome of the case. However, in our jurisdiction, locus standi in environmental cases has been given a more liberalized approach. While developments in Philippine legal theory and jurisprudence have not progressed as far as Justice Douglas's paradigm of legal standing for inanimate objects, the current trend moves towards simplification of procedures and facilitating court access in environmental cases. Recently, the Court passed the landmark Rules of Procedure for Environmental Cases, 51 which allow for a "citizen suit," and permit any Filipino citizen to file an action before our courts for violations of our environmental laws: SEC. 5. Citizen suit. - Any Filipino citizen in representation of others, including minors or generations yet unborn, may file an action to enforce rights or obligations under environmental laws. Upon the filing of a citizen suit, the court shall issue an order which shall contain a brief description of the cause of action and the reliefs prayed for, requiring all interested parties to manifest their interest to intervene in the case within fifteen (15) days from notice thereof. The plaintiff may publish the order once in a newspaper of a general circulation in the Philippines or furnish all affected barangays copies of said order. Citizen suits filed under R.A. No. 8749 and R.A. No. 9003 shall be governed by their respective provisions.52(Emphasis ours.) Explaining the rationale for this rule, the Court, in the Annotations to the Rules of Procedure for Environmental Cases, commented: Citizen suit. To further encourage the protection of the environment, the Rules enable litigants enforcing environmental rights to file their cases as citizen suits. This provision liberalizes standing for all cases filed enforcing environmental laws and collapses the traditional rule on personal and direct interest, on the principle that humans are stewards of nature. The terminology of the text reflects the doctrine first enunciated in Oposa v. Factoran, insofar as it refers to minors and generations yet unborn.53 (Emphasis supplied, citation omitted.) Although this petition was filed in 2007, years before the effectivity of the Rules of Procedure for Environmental

Cases, it has been consistently held that rules of procedure "may be retroactively applied to actions pending and undetermined at the time of their passage and will not violate any right of a person who may feel that he is adversely affected, inasmuch as there is no vested rights in rules of procedure."54 Elucidating on this doctrine, the Court, in Systems Factors Corporation v. National Labor Relations Commission55held that: Remedial statutes or statutes relating to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of rights already existing, do not come within the legal conception of a retroactive law, or the general rule against retroactive operation of statutes. Statutes regulating the procedure of the courts will be construed as applicable to actions pending and undetermined at the time of their passage. Procedural laws are retroactive in that sense and to that extent. x x x. Moreover, even before the Rules of Procedure for Environmental · Cases became effective, this Court had already taken a permissive position on the issue of locus standi in environmental cases. In Oposa, we allowed the suit to be brought in the name of generations yet unborn "based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned."56 Furthermore, we said that the right to a balanced and healthful ecology, a right that does not even need to be stated in our Constitution as it is assumed to exist from the inception of humankind, carries with it the correlative duty to refrain from impairing the environment.57 In light of the foregoing, the need to give the Resident Marine Mammals legal standing has been eliminated by our Rules, which allow any Filipino citizen, as a steward of nature, to bring a suit to enforce our environmental laws. It is worth noting here that the Stewards are joined as real parties in the Petition and not just in representation of the named cetacean species. The Stewards, Ramos and Eisma-Osorio, having shown in their petition that there may be possible violations of laws concerning the habitat of the Resident Marine Mammals, are therefore declared to possess the legal standing to file this petition. Impleading Former President Gloria Macapagal-Arroyo as an Unwilling Co-Petitioner Petitioners Stewards in G.R. No. 180771 impleaded as an unwilling co-petitioner former President Gloria Macapagal-Arroyo for the following reasons, which we quote: Her Excellency Gloria Macapagal-Arroyo, also of legal age, Filipino and resident of Malacailang Palace, Manila Philippines. Steward Gloria Macapagal-Arroyo happens to be the incumbent President of the Philippine Islands. She is personally impleaded in this suit as an unwilling co-petitioner by reason of her express declaration and undertaking under the recently signed ASEAN Charter to protect Your Petitioners' habitat, among others. She is meantime dominated as an unwilling co-petitioner due to lack of material time in seeking her signature and imprimatur hereof and due to possible legal complications that may hereafter arise by reason of her official relations with public respondents under the alter ego principle in political law. 58 This is incorrect. Section 10, Rule 3 of the Rules of Court provides: Sec. 10. Unwilling co-plaintiff. - If the consent of any party who should be joined as plaintiff can not be obtained, he may be made a defendant and the reason therefor shall be stated in the complaint. Under the foregoing rule, when the consent of a party who should be joined as a plaintiff cannot be obtained, he or she may be made a party defendant to the case. This will put the unwilling party under the jurisdiction of the Court, which can properly implead him or her through its processes. The unwilling party's name cannot be simply included in a petition, without his or her knowledge and consent, as such would be a denial of due process. Moreover, the reason cited by the petitioners Stewards for including former President Macapagal-Arroyo in their petition, is not sufficient to implead her as an unwilling co-petitioner. Impleading the former President as an unwilling co-petitioner, for an act she made in the performance of the functions of her office, is contrary to the public policy against embroiling the President in suits, "to assure the exercise of Presidential duties and functions

free from any hindrance or distraction, considering that being the Chief Executive of the Government is a job that, aside from requiring all of the office holder's time, also demands undivided attention." 59 Therefore, former President Macapagal-Arroyo cannot be impleaded as one of the petitioners in this suit. Thus, her name is stricken off the title of this case. Main Issue: Legality of Service Contract No. 46 Service Contract No. 46 vis-a-vis Section 2, Article XII of the 1987 Constitution Petitioners maintain that SC-46 transgresses the Jura Regalia Provision or paragraph 1, Section 2, Article XII of the 1987 Constitution because JAPEX is 100% Japanese-owned.60 Furthermore, the FIDEC asserts that SC-46 cannot be considered as a technical and financial assistance agreement validly executed under paragraph 4 of the same provision.61 The petitioners claim that La Bugal-B'laan Tribal Association, Inc. v. Ramos62 laid down the guidelines for a valid service contract, one of which is that there must exist a general law for oil exploration before a service contract may be entered into by the Government. The petitioners posit that the service contract in La Bugal is presumed to have complied with the requisites of (a) legislative enactment of a general law after the effectivity of the 1987 Constitution (such as Republic Act No. 7942, or the Philippine Mining Law of 1995, governing mining contracts) and (b) presidential notification. The petitioners thus allege that the ruling in La Bugal, which involved mining contracts under Republic Act No. 7942, does not apply in this case. 63 The petitioners also argue that Presidential Decree No. 87 or the Oil Exploration and Development Act of 1972 cannot legally justify SC-46 as it is deemed to have been repealed by the 1987 Constitution and subsequent laws, which enunciate new policies concerning the environment.64 In addition, petitioners in G.R. No. 180771 claim that paragraphs 2 and 3 of Section 2, Article XII of the 1987 Constitution mandate the exclusive use and enjoyment by the Filipinos of our natural resources,65 and paragraph 4 does not speak of service contracts but of FTAAs or Financial Technical Assistance Agreements.66 The public respondents again controvert the petitioners' claims and asseverate that SC-46 does not violate Section 2, Article XII of the 1987 Constitution. They hold that SC-46 does not fall under the coverage of paragraph 1 but instead, under paragraph 4 of Section 2, Article XII of the 1987 Constitution on FTAAs. They also insist that paragraphs 2 and 3, which refer to the grant of exclusive fishing right to Filipinos, are not applicable to SC-46 as the contract does not grant exclusive fishing rights to JAPEX nor does it otherwise impinge on the FIDEC's right to preferential use of communal marine and fishing resources.67 Ruling of the Court On the legality of Service Contract No. 46 vis-a-vis Section 2, Article XII of the 1987 Constitution The petitioners insist that SC-46 is null and void for having violated Section 2, Article XII of the 1987 Constitution, which reads as follows: Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.

The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons. The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources. The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution. (Emphases ours.) This Court has previously settled the issue of whether service contracts are still allowed under the 1987 Constitution. In La Bugal, we held that the deletion of the words "service contracts" in the 1987 Constitution did not amount to a ban on them per se. In fact, in that decision, we quoted in length, portions of the deliberations of the members of the Constitutional Commission (ConCom) to show that in deliberating on paragraph 4, Section 2, Article XII, they were actually referring to service contracts as understood in the 1973 Constitution, albeit with safety measures to eliminate or minimize the abuses prevalent during the martial law regime, to wit: Summation of the ConCom Deliberations At this point, we sum up the matters established, based on a careful reading of the Con Com deliberations, as follows: In their deliberations on what was to become paragraph 4, the framers used the term service contracts in referring to agreements x x x involving either technical or financial assistance. They spoke of service contracts as the concept was understood in the 1973 Constitution. It was obvious from their discussions that they were not about to ban or eradicate service contracts. Instead, they were plainly crafting provisions to put in place safeguards that would eliminate or minimize the abuses prevalent during the marital law regime. In brief, they were going to permit service contracts with foreign corporations as contractors, but with safety measures to prevent abuses, as an exception to the general norm established in the first paragraph of Section 2 of Article XII. This provision reserves or limits to Filipino citizens -and corporations at least 60 percent of which is owned by such citizens -- the exploration, development and utilization of natural resources. This provision was prompted by the perceived insufficiency of Filipino capital and the felt need for foreign investments in the EDU of minerals and petroleum resources. The framers for the most part debated about the sort of safeguards that would be considered adequate and reasonable. But some of them, having more "radical" leanings, wanted to ban service contracts altogether; for them, the provision would permit aliens to exploit and benefit from the nation's natural resources, which they felt should be reserved only for Filipinos. In the explanation of their votes, the individual commissioners were heard by the entire body. They sounded off their individual opinions, openly enunciated their philosophies, and supported or attacked the provisions with fervor. Everyone's viewpoint was heard. In the final voting, the Article on the National Economy and Patrimony -- including paragraph 4 allowing service contracts with foreign corporations as an exception to the general norm in paragraph 1 of Section 2 of the same article --was resoundingly approved by a vote of 32 to 7, with 2 abstentions.

Agreements Involving Technical Or Financial Assistance Are Service Contracts with Safeguards From the foregoing, we are impelled to conclude that the phrase agreements involving either technical or financial assistance, referred to in paragraph 4, are in fact service contracts. But unlike those of the 1973 variety, the new ones are between foreign corporations acting as contractors on the one hand; and on the other, the government as principal or "owner" of the works. In the new service contracts, the foreign contractors provide capital, technology and technical know-how, and managerial expertise in the creation and operation of large-scale mining/extractive enterprises; and the government, through its agencies (DENR, MGB), actively exercises control and supervision over the entire operation.68 In summarizing the matters discussed in the ConCom, we established that paragraph 4, with the safeguards in place, is the exception to paragraph 1, Section 2 of Article XII. The following are the safeguards this Court enumerated in La Bugal: Such service contracts may be entered into only with respect to minerals, petroleum and other mineral oils. The grant thereof is subject to several safeguards, among which are these requirements: (1) The service contract shall be crafted in accordance with a general law that will set standard or uniform terms, conditions and requirements, presumably to attain a certain uniformity in provisions and avoid the possible insertion of terms disadvantageous to the country. (2) The President shall be the signatory for the government because, supposedly before an agreement is presented to the President for signature, it will have been vetted several times over at different levels to ensure that it conforms to law and can withstand public scrutiny. (3) Within thirty days of the executed agreement, the President shall report it to Congress to give that branch of government an opportunity to look over the agreement and interpose timely objections, if any.69 Adhering to the aforementioned guidelines, this Court finds that SC-46 is indeed null and void for noncompliance with the requirements of the 1987 Constitution. 1. The General Law on Oil Exploration The disposition, exploration, development, exploitation, and utilization of indigenous petroleum in the Philippines are governed by Presidential Decree No. 87 or the Oil Exploration and Development Act of 1972. This was enacted by then President Ferdinand Marcos to promote the discovery and production of indigenous petroleum through the utilization of government and/or local or foreign private resources to yield the maximum benefit to the Filipino people and the revenues to the Philippine Government.70 Contrary to the petitioners' argument, Presidential Decree No. 87, although enacted in 1972, before the adoption of the 1987 Constitution, remains to be a valid law unless otherwise repealed, to wit: ARTICLE XVIII - TRANSITORY PROVISIONS Section 3. All existing laws, decrees, executive orders, proclamations, letters of instructions, and other executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed, or revoked. If there were any intention to repeal Presidential Decree No. 87, it would have been done expressly by Congress. For instance, Republic Act No. 7160, more popularly known as the Local Government Code of 1991, expressly repealed a number of laws, including a specific provision in Presidential Decree No. 87, viz.: SECTION 534. Repealing Clause. - (a) Batas Pambansa Blg. 337, otherwise known as the "Local Government Code," Executive Order No. 112 (1987), and Executive Order No. 319 (1988) are hereby repealed.

(b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees, orders, instructions, memoranda and issuances related to or concerning the barangay are hereby repealed. (c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding hospital fund; Section 3, a (3) and b (2) of Republic Act No. 5447 regarding the Special Education Fund; Presidential Decree No. 144 as amended by Presidential Decree Nos. 559 and 1741; Presidential Decree No. 231 as amended; Presidential Decree No. 436 as amended by Presidential Decree No. 558; and Presidential Decree Nos. 381, 436, 464, 477, 526, 632, 752, and 1136 are hereby repealed and rendered of no force and effect. (d) Presidential Decree No. 1594 is hereby repealed insofar as it governs locally-funded projects. (e) The following provisions are hereby repealed or amended insofar as they are inconsistent with the provisions of this Code: Sections 2, 16 and 29 of Presidential Decree No. 704; Section 12 of Presidential Decree No. 87, as amended; Sections 52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of Presidential Decree No. 463, as amended; and Section 16 of Presidential Decree No. 972, as amended, and (f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this Code are hereby repealed or modified accordingly. (Emphasis supplied.) This Court could not simply assume that while Presidential Decree No. 87 had not yet been expressly repealed, it had been impliedly repealed. As we held in Villareña v. The Commission on Audit, 71 "[i]mplied repeals are not lightly presumed." It is a settled rule that when laws are in conflict with one another, every effort must be exerted to reconcile them. In Republic of the Philippines v. Marcopper Mining Corporation, 72 we said: The two laws must be absolutely incompatible, and a clear finding thereof must surface, before the inference of implied repeal may be drawn. The rule is expressed in the maxim, interpretare et concordare leqibus est optimus interpretendi, i.e., every statute must be so interpreted and brought into accord with other laws as to form a uniform system of jurisprudence. The fundament is that the legislature should be presumed to have known the existing laws on the subject and not have enacted conflicting statutes. Hence, all doubts must be resolved against any implied repeal, and all efforts should be exerted in order to harmonize and give effect to all laws on the subject. (Citation omitted.) Moreover, in cases where the statute seems to be in conflict with the Constitution, but a construction that it is in harmony with the Constitution is also possible, that construction should be preferred.73 This Court, in Pangandaman v. Commission on Elections74 expounding on this point, pronounced: It is a basic precept in statutory construction that a statute should be interpreted in harmony with the Constitution and that the spirit, rather than the letter of the law determines its construction; for that reason, a statute must be read according to its spirit and intent. x x x. (Citation omitted.) Consequently, we find no merit in petitioners' contention that SC-46 is prohibited on the ground that there is no general law prescribing the standard or uniform terms, conditions, and requirements for service contracts involving oil exploration and extraction. But note must be made at this point that while Presidential Decree No. 87 may serve as the general law upon which a service contract for petroleum exploration and extraction may be authorized, as will be discussed below, the exploitation and utilization of this energy resource in the present case may be allowed only through a law passed by Congress, since the Tañon Strait is a NIPAS75 area. 2. President was not the signatory to SC-46 and the same was not submitted to Congress While the Court finds that Presidential Decree No. 87 is sufficient to satisfy the requirement of a general law, the absence of the two other conditions, that the President be a signatory to SC-46, and that Congress be notified of such contract, renders it null and void.

As SC-46 was executed in 2004, its terms should have conformed not only to the provisions of Presidential Decree No. 87, but also to those of the 1987 Constitution. The Civil Code provides: ARTICLE 1306. The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy. (Italics ours.) In Heirs of San Miguel v. Court of Appeals,76 this Court held that: It is basic that the law is deemed written into every contract. Although a contract is the law between the parties, the provisions of positive law which regulate contracts are deemed written therein and shall limit and govern the relations between the parties. x x x. (Citations omitted.) Paragraph 4, Section 2, Article XII of the 1987 Constitution requires that the President himself enter into any service contract for the exploration of petroleum. SC-46 appeared to have been entered into and signed only by the DOE through its then Secretary, Vicente S. Perez, Jr., contrary to the said constitutional requirement. Moreover, public respondents have neither shown nor alleged that Congress was subsequently notified of the execution of such contract. Public respondents' implied argument that based on the "alter ego principle," their acts are also that of then President Macapagal-Arroyo's, cannot apply in this case. In Joson v. Torres,77 we explained the concept of the alter ego principle or the doctrine of qualified political agency and its limit in this wise: Under this doctrine, which recognizes the establishment of a single executive, all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the Secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive presumptively the acts of the Chief Executive. (Emphasis ours, citation omitted.) While the requirements in executing service contracts in paragraph 4, Section 2 of Article XII of the 1987 Constitution seem like mere formalities, they, in reality, take on a much bigger role. As we have explained in La Bugal, they are the safeguards put in place by the framers of the Constitution to "eliminate or minimize the abuses prevalent during the martial law regime."78 Thus, they are not just mere formalities, which will only render a contract unenforceable but not void, if not complied with. They are requirements placed, not just in an ordinary statute, but in the fundamental law, the non-observance of which will nullify the contract. Elucidating on the concept of a "constitution," this Court, in Manila Prince Hotel v. Government Service Insurance System,79 held: A constitution is a system of fundamental laws for the governance and administration of a nation. It is supreme, imperious, absolute and unalterable except by the authority from which it emanates. It has been defined as the fundamental and paramount law of the nation. It prescribes the permanent framework of a system of government, assigns to the different departments their respective powers and duties, and establishes certain fixed principles on which government is founded. The fundamental conception in other words is that it is a supreme law to which all other laws must conform and in accordance with which all private rights must be determined and all public authority administered. Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the constitution that law or contract whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes is null and void and without any force and effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract. (Emphasis ours.) As this Court has held in La Bugal, our Constitution requires that the President himself be the signatory of service agreements with foreign-owned corporations involving the exploration, development, and utilization of our minerals, petroleum, and other mineral oils. This power cannot be taken lightly. In this case, the public respondents have failed to show that the President had any participation in SC-46. Their argument that their acts are actually the acts of then President Macapagal-Arroyo, absent proof of her disapproval, must fail as the requirement that the President herself enter into these kinds of contracts is embodied not just in any ordinary statute, but in the Constitution itself. These service contracts involving the exploitation, development, and utilization of our natural resources are of paramount interest to the present and future

generations. Hence, safeguards were put in place to insure that the guidelines set by law are meticulously observed and likewise to eradicate the corruption that may easily penetrate departments and agencies by ensuring that the President has authorized or approved of these service contracts herself. Even under the provisions of Presidential Decree No. 87, it is required that the Petroleum Board, now the DOE, obtain the President's approval for the execution of any contract under said statute, as shown in the following provision: SECTION 5. Execution of contract authorized in this Act. -Every contract herein authorized shall, subject to the approval of the President, be executed by the Petroleum Board created in this Act, after due public notice prequalification and public bidding or concluded through negotiations. In case bids are requested or if requested no bid is submitted or the bids submitted are rejected by the Petroleum Board for being disadvantageous to the Government, the contract may be concluded through negotiation. In opening contract areas and in selecting the best offer for petroleum operations, any of the following alternative procedures may be resorted to by the Petroleum Board, subject to prior approval of the President[.] Even if we were inclined to relax the requirement in La Bugal to harmonize the 1987 Constitution with the aforementioned provision of Presidential Decree No. 87, it must be shown that the government agency or subordinate official has been authorized by the President to enter into such service contract for the government. Otherwise, it should be at least shown that the President subsequently approved of such contract explicitly. None of these circumstances is evident in the case at bar. Service Contract No. 46 vis-a-vis Other Laws Petitioners in G.R. No. 180771 claim that SC-46 violates Section 27 of Republic Act. No. 9147 or the Wildlife Resources Conservation and Protection Act, which bans all marine exploration and exploitation of oil and gas deposits. They also aver that Section 14 of Republic Act No. 7586 or the National Integrated Protected Areas System Act of 1992 (NIPAS Act), which allows the exploration of protected areas for the purpose of informationgathering, has been repealed by Section 27 of Republic Act No. 914 7. The said petitioners further claim that SC46 is anathema to Republic Act No. 8550 or the Philippine Fisheries Code of 1998, which protects the rights of the fisherfolk in the preferential use of municipal waters, with the exception being limited only to research and survey activities.80 The FIDEC, for its part, argues that to avail of the exceptions under Section 14 of the NIP AS Act, the gathering of information must be in accordance with a DENR-approved program, and the exploitation and utilization of energy resources must be pursuant to a general law passed by Congress expressly for that purpose. Since there is neither a DENR approved program nor a general law passed by Congress, the seismic surveys and oil drilling operations were all done illegally.81 The FIDEC likewise contends that SC-46 infringes on its right to the preferential use of the communal fishing waters as it is denied free access within the prohibited zone, in violation not only of the Fisheries Code but also of the 1987 Constitutional provisions on subsistence fisherfolk and social justice.82 Furthermore, the FIDEC believes that the provisions in Presidential Decree No. 87, which allow offshore drilling even in municipal waters, should be deemed to have been rendered inoperative by the provisions of Republic Act No. 8550 and Republic Act No. 7160, which reiterate the social justice provisions of the Constitution.83 The public respondents invoke the rules on statutory construction and argue that Section 14 of the NIP AS Act is a more particular provision and cannot be deemed to have been repealed by the more general prohibition in Section 27 of Republic Act No. 9147. They aver that Section 14, under which SC-46 falls, should instead be regarded as an exemption to Section 27.84 Addressing the claim of petitioners in G.R. No. 180771 that there was a violation of Section 27 of Republic Act No. 9147, the public respondents assert that what the section prohibits is the exploration of minerals, which as defined in the Philippine Mining Act of 1995, exclude energy materials such as coal, petroleum, natural gas, radioactive materials and geothennal energy. Thus, since SC-46 involves oil and gas exploration, Section 27 does not apply.85 The public respondents defend the validity of SC-46 and insist that it does not grant exclusive fishing rights to JAPEX; hence, it does not violate the rule on preferential use of municipal waters. Moreover, they allege that

JAPEX has not banned fishing in the project area, contrary to the FIDEC's claim. The public respondents also contest the attribution of the declining fish catch to the seismic surveys and aver that the allegation is unfounded. They claim that according to the Bureau of Fisheries and Aquatic Resources' fish catch data, the reduced fish catch started in the 1970s due to destructive fishing practices. 86 Ruling of the Court On the legality of Service Contract No. 46 vis-a-vis Other Laws Although we have already established above that SC-46 is null and void for being violative of the 1987 Constitution, it is our duty to still rule on the legality of SC-46 vis-a-vis other pertinent laws, to serve as a guide for the Government when executing service contracts involving not only the Tafion Strait, but also other similar areas. While the petitioners allege that SC-46 is in violation of several laws, including international ones, their arguments focus primarily on the protected status of the Tañon Strait, thus this Court will concentrate on those laws that pertain particularly to the Tañon Strait as a protected seascape. The Tañon Strait is a narrow passage of water bounded by the islands of Cebu in the East and Negros in the West. It harbors a rich biodiversity of marine life, including endangered species of dolphins and whales. For this reason, former President Fidel V. Ramos declared the Tañon Strait as a protected seascape in 1998 by virtue of Proclamation No. 1234 -Declaring the Tañon Strait situated in the Provinces of Cebu, Negros Occidental and Negros Oriental as a Protected Area pursuant to the NIP AS Act and shall be known as Tañon Strait Protected Seascape. During former President Joseph E. Estrada's time, he also constituted the Tañon Strait Commission via Executive Order No. 76 to ensure the optimum and sustained use of the resources in that area without threatening its marine life. He followed this with Executive Order No. 177, 87 wherein he included the mayor of Negros Occidental Municipality/City as a member of the Tañon Strait Commission, to represent the LGUs concerned. This Commission, however, was subsequently abolished in 2002 by then President Gloria MacapagalArroyo, via Executive Order No. 72.88 True to the constitutional policy that the "State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature,"89 Congress enacted the NIP AS Act to secure the perpetual existence of all native plants and animals through the establishment of a comprehensive system of integrated protected areas. These areas possess common ecological values that were incorporated into a holistic plan representative of our natural heritage. The system encompasses outstandingly remarkable areas and biologically important public lands that are habitats of rare and endangered species of plants and animals, biogeographic zones and related ecosystems, whether terrestrial, wetland, or marine. 90 It classifies and administers all the designated protected areas to maintain essential ecological processes and life-support systems, to preserve genetic diversity, to ensure sustainable use of resources found therein, and to maintain their natural conditions to the greatest extent possible.91 The following categories of protected areas were established under the NIPAS Act: a. Strict nature reserve; b. Natural park; c. Natural monument; d. Wildlife sanctuary; e. Protected landscapes and seascapes; f. Resource reserve; g. Natural biotic areas; and

h. Other categories established by law, conventions or international agreements which the Philippine Government is a signatory.92 Under Section 4 of the NIP AS Act, a protected area refers to portions of land and water, set aside due to their unique physical and biological significance, managed to enhance biological diversity and protected against human exploitation. The Tañon Strait, pursuant to Proclamation No. 1234, was set aside and declared a protected area under the category of Protected Seascape. The NIP AS Act defines a Protected Seascape to be an area of national significance characterized by the harmonious interaction of man and land while providing opportunities for public enjoyment through recreation and tourism within the normal lifestyle and economic activity of this areas; 93 thus a management plan for each area must be designed to protect and enhance the permanent preservation of its natural conditions.94 Consistent with this endeavor is the requirement that an Environmental Impact Assessment (EIA) be made prior to undertaking any activity outside the scope of the management plan. Unless an ECC under the EIA system is obtained, no activity inconsistent with the goals of the NIP AS Act shall be implemented. 95 The Environmental Impact Statement System (EISS) was established in 1978 under Presidential Decree No. 1586. It prohibits any person, partnership or corporation from undertaking or operating any declared environmentally critical project or areas without first securing an ECC issued by the President or his duly authorized representative.96Pursuant to the EISS, which called for the proper management of environmentally critical areas,97 Proclamation No. 214698 was enacted, identifying the areas and types of projects to be considered as environmentally critical and within the scope of the EISS, while DENR Administrative Order No. 2003-30 provided for its Implementing Rules and Regulations (IRR). DENR Administrative Order No. 2003-30 defines an environmentally critical area as "an area delineated as environmentally sensitive such that significant environmental impacts are expected if certain types of proposed projects or programs are located, developed, or implemented in it";99 thus, before a project, which is "any activity, regardless of scale or magnitude, which may have significant impact on the environment," 100 is undertaken in it, such project must undergo an EIA to evaluate and predict the likely impacts of all its stages on the environment.101An EIA is described in detail as follows: h. Environmental Impact Assessment (EIA) - process that involves evaluating and predicting the likely impacts of a project (including cumulative impacts) on the environment during construction, commissioning, operation and abandonment. It also includes designing appropriate preventive, mitigating and enhancement measures addressing these consequences to protect the environment and the community's welfare. The process is undertaken by, among others, the project proponent and/or EIA Consultant, EMB, a Review Committee, affected communities and other stakeholders.102 Under Proclamation No. 2146, the Tañon Strait is an environmentally critical area, having been declared as a protected area in 1998; therefore, any activity outside the scope of its management plan may only be implemented pursuant to an ECC secured after undergoing an EIA to determine the effects of such activity on its ecological system. The public respondents argue that they had complied with the procedures in obtaining an ECC 103 and that SC-46 falls under the exceptions in Section 14 of the NIP AS Act, due to the following reasons: 1) The Tañon Strait is not a strict nature reserve or natural park; 2) Exploration is only for the purpose of gathering information on possible energy resources; and 3) Measures are undertaken to ensure that the exploration is being done with the least damage to surrounding areas.104 We do not agree with the arguments raised by the public respondents. Sections 12 and 14 of the NIPAS Act read:

SECTION 12. Environmental Impact Assessment. - Proposals for activities which are outside the scope of the management plan for protected areas shall be subject to an environmental impact assessment as required by law before they are adopted, and the results thereof shall be taken into consideration in the decision-making process. No actual implementation of such activities shall be allowed without the required Environmental Compliance Certificate (ECC) under the Philippine Environmental Impact Assessment (EIA) system. In instances where such activities are allowed to be undertaken, the proponent shall plan and carry them out in such manner as will minimize any adverse effects and the preventive and remedial action when appropriate. The proponent shall be liable for any damage due to lack of caution or indiscretion. SECTION 14. Survey for Energy Resources. - Consistent with the policies declared in Section 2 hereof, protected areas, except strict nature reserves and natural parks, may be subjected to exploration only for the purpose of gathering information on energy resources and only if such activity is carried out with the least damage to surrounding areas. Surveys shall be conducted only in accordance with a program approved by the DENR, and the result of such surveys shall be made available to the public and submitted to the President for recommendation to Congress. Any exploitation and utilization of energy resources found within NIP AS areas shall be allowed only through a law passed by Congress. It is true that the restrictions found under the NIP AS Act are not without exceptions. However, while an exploration done for the purpose of surveying for energy resources is allowed under Section 14 of the NIP AS Act, this does not mean that it is exempt from the requirement to undergo an EIA under Section 12. In Sotto v. Sotto,105 this Court explained why a statute should be construed as a whole: A statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent. Consequently each part or section should be construed in connection with every other part or section and so as to produce a harmonious whole. It is not proper to confine the attention to the one section to be construed. It is always an unsafe way of construing a statute or contract to divide it by a process of etymological dissection, into separate words, and then apply to each, thus separated from its context, some particular definition given by lexicographers, and then reconstruct the instrument upon the basis of these definitions. An instrument must always be construed as a whole, and the particular meaning to be attached to any word or phrase is usually to be ascertained from the context, the nature of the subject treated of and the purpose or intention of the parties who executed the contract, or of the body which enacted or framed the statute or constitution. x x x. Surveying for energy resources under Section 14 is not an exemption from complying with the EIA requirement in Section 12; instead, Section 14 provides for additional requisites before any exploration for energy resources may be done in protected areas. The rationale for such additional requirements are incorporated m Section 2 of the NIP AS Act, to wit: SECTION 2. Declaration of Policy - Cognizant of the profound impact of man's activities on all components of the natural environment particularly the effect of increasing population, resource exploitation and industrial advancement and recognizing the critical importance of protecting and maintaining the natural biological and physical diversities of the environment notably on areas with biologically unique features to sustain human life and development, as well as plant and animal life, it is hereby declared the policy of the State to secure for the Filipino people of present and future generations the perpetual existence of all native plants and animals through the establishment of a comprehensive system of integrated protected areas within the classification of national park as provided for in the Constitution. It is hereby recognized that these areas, although distinct in features, possess common ecological values that may be incorporated into a holistic plan representative of our natural heritage; that effective administration of this area is possible only through cooperation among national government, local government and concerned private organizations; that the use and enjoyment of these protected areas must be consistent with the principles of biological diversity and sustainable development. To this end, there is hereby established a National Integrated Protected Areas System (NIPAS), which shall encompass outstandingly remarkable areas and biologically important public lands that are habitats of rare and

endangered species of plants and animals, biogeographic zones and related ecosystems, whether terrestrial, wetland or marine, all of which shall be designated as "protected areas." The public respondents themselves admitted that JAPEX only started to secure an ECC prior to the second subphase of SC-46, which required the drilling of an oil exploration well. This means that when the seismic surveys were done in the Tañon Strait, no such environmental impact evaluation was done. Unless seismic surveys are part of the management plan of the Tañon Strait, such surveys were done in violation of Section 12 of the NIPAS Act and Section 4 of Presidential Decree No. 1586, which provides: Section 4. Presidential Proclamation of Environmentally Critical Areas and Projects. - The President of the Philippines may, on his own initiative or upon recommendation of the National Environmental Protection Council, by proclamation declare certain projects, undertakings or areas in the country as environmentally critical. No person, partnership or corporation shall undertake or operate any such declared environmentally critical project or area without first securing an Environmental Compliance Certificate issued by the President or his duly authorized representative. For the proper management of said critical project or area, the President may by his proclamation reorganize such government offices, agencies, institutions, corporations or instrumentalities including the realignment of government personnel, and their specific functions and responsibilities. For the same purpose as above, the Ministry of Human Settlements shall: (a) prepare the proper land or water use pattern for said critical project(s) or area(s); (b) establish ambient environmental quality standards; (c) develop a program of environmental enhancement or protective measures against calamitous factors such as earthquakes, floods, water erosion and others, and (d) perform such other functions as may be directed by the President from time to time. The respondents' subsequent compliance with the EISS for the second sub-phase of SC-46 cannot and will not cure this violation. The following penalties are provided for under Presidential Decree No. 1586 and the NIPAS Act. Section 9 of Presidential Decree No. 1586 provides for the penalty involving violations of the ECC requirement: Section 9. Penalty for Violation. - Any person, corporation or partnership found violating Section 4 of this Decree, or the terms and conditions in the issuance of the Environmental Compliance Certificate, or of the standards, rules and regulations issued by the National Environmental Protection Council pursuant to this Decree shall be punished by the suspension or cancellation of his/its certificates and/or a fine in an amount not to exceed Fifty Thousand Pesos (₱50,000.00) for every violation thereof, at the discretion of the National Environmental Protection Council. (Emphasis supplied.) Violations of the NIP AS Act entails the following fines and/or imprisonment under Section 21: SECTION 21. Penalties. - Whoever violates this Act or any rules and regulations issued by the Department pursuant to this Act or whoever is found guilty by a competent court of justice of any of the offenses in the preceding section shall be fined in the amount of not less than Five thousand pesos (₱5,000) nor more than Five hundred thousand pesos (₱500,000), exclusive of the value of the thing damaged or imprisonment for not less than one (1) year but not more than six (6) years, or both, as determined by the court: Provided, that, if the area requires rehabilitation or restoration as determined by the court, the offender shall be required to restore or compensate for the restoration to the damages: Provided, further, that court shall order the eviction of the offender from the land and the forfeiture in favor of the Government of all minerals, timber or any species collected or removed including all equipment, devices and firearms used in connection therewith, and any construction or improvement made thereon by the offender. If the offender is an association or corporation, the president or manager shall be directly responsible for the act of his employees and laborers: Provided, finally, that the DENR may impose administrative fines and penalties consistent with this Act. (Emphases supplied.) Moreover, SC-46 was not executed for the mere purpose of gathering information on the possible energy resources in the Tañon Strait as it also provides for the parties' rights and obligations relating to extraction and petroleum production should oil in commercial quantities be found to exist in the area. While Presidential Decree No. 87 may serve as the general law upon which a service contract for petroleum exploration and extraction may be authorized, the exploitation and utilization of this energy resource in the present case may be allowed only through a law passed by Congress, since the Tañon Strait is a NIPAS area. 106Since there is no such law

specifically allowing oil exploration and/or extraction in the Tañon Strait, no energy resource exploitation and utilization may be done in said protected seascape. In view of the foregoing premises and conclusions, it is no longer necessary to discuss the other issues raised in these consolidated petitions. WHEREFORE, the Petitions in G.R. Nos. 180771 and 181527 are GRANTED, Service Contract No. 46 is hereby declared NULL AND VOID for violating the 1987 Constitution, Republic Act No. 7586, and Presidential Decree No. 1586. SO ORDERED. G.R. No. 225973, November 08, 2016 SATURNINO C. OCAMPO, TRINIDAD H. REPUNO, BIENVENIDO LUMBERA, BONIFACIO P. ILAGAN, NERI JAVIER COLMENARES, MARIA CAROLINA P. ARAULLO, M.D., SAMAHAN NG EXDETAINEES LABAN SA DETENSYON AT ARESTO (SELDA), REPRESENTED BY DIONITO CABILLAS, CARMENCITA M. FLORENTINO, RODOLFO DEL ROSARIO, FELIX C. DALISAY, AND DANILO M. DELAFUENTE,* Petitioners, v. REAR ADMIRAL ERNESTO C. ENRIQUEZ (IN HIS CAPACITY AS THE DEPUTY CHIEF OF STAFF FOR RESERVIST AND RETIREE AFFAIRS, ARMED FORCES OF THE PHILIPPINES), THE GRAVE SERVICES UNIT (PHILIPPINE ARMY), AND GENERAL RICARDO R. VISAYA (IN HIS CAPACITY AS THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES), DEFENSE SECRETARY DELFIN LORENZANA, AND HEIRS OF FERDINAND E. MARCOS, REPRESENTED BY HIS SURVIVING SPOUSE IMELDA ROMUALDEZ MARCOS, Respondents. RENE A.V. SAGUISAG, SR., RENE A.Q. SAGUISAG, JR., RENE A.C. SAGUISAG III, Intervenors. G.R. No. 225984 REP. EDCEL C. LAGMAN, IN HIS PERSONAL AND OFFICIAL CAPACITIES AND AS A MEMBER OF CONGRESS AND AS THE HONORARY CHAIRPERSON OF THE FAMILIES OF VICTIMS OF INVOLUNTARY DISAPPEARANCE (FIND); FAMILIES OF VICTIMS OF INVOLUNTARY DISAPPEARANCE (FIND), REPRESENTED BY ITS COCHAIRPERSON, NILDA L. SEVILLA; REP. TEDDY BRAWNER BAGUILAT, JR.; REP. TOMASITO S. VILLARIN; REP. EDGAR R. ERICE; AND REP. EMMANUEL A. BILLONES, Petitioners, v. EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA; DEFENSE SECRETARY DELFIN N. LORENZANA; AFP CHIEF OF STAFF LT. GEN. RICARDO R. VISAYA; AFP DEPUTY CHIEF OF STAFF REAR ADMIRAL ERNESTO C. ENRIQUEZ; AND HEIRS OF FERDINAND E. MARCOS, REPRESENTED BY HIS SURVIVING SPOUSE IMELDA ROMUALDEZ MARCOS, Respondents. G.R. No. 226097 LORETTA ANN PARGAS-ROSALES, HILDA B. NARCISO, AIDA F. SANTOSMARANAN, JO-ANN Q. MAGLIPON, ZENAIDA S. MIQUE, FE B. MANGAHAS, MA. CRISTINA P. BAWAGAN, MILA D. AGUILAR, MINERVA G. GONZALES, MA. CRISTINA V. RODRIGUEZ, LOUIE G. CRISMO, FRANCISCO E. RODRIGO, JR., LIWAYWAY D. ARCE, AND ABDULMARI DE LEON IMAO, JR., Petitioners, v. EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA, DEFENSE SECRETARY DELFIN LORENZANA, AFP DEPUTY CHIEF OF STAFF REAR ADMIRAL ERNESTO C. ENRIQUEZ, AFP CHIEF OF STAFF LT. GEN. RICARDO R. VISAYA, AND PHILIPPINE VETERANS AFFAIRS OFFICE (PVAO) ADMINISTRATOR LT. GEN. ERNESTO G. CAROLINA (RET.), Respondents. G.R. No. 226116 HEHERSON T. ALVAREZ, JOEL C. LAMANGAN, FRANCIS X. MANGLAPUS, EDILBERTO C. DE JESUS, BELINDA O. CUNANAN, CECILIA GUIDOTE ALVAREZ, REX DEGRACIA LORES, SR., ARNOLD MARIE NOEL, CARLOS MANUEL, EDMUND S. TAYAO, DANILO P. OLIVARES, NOEL F. TRINIDAD, JESUS DELA FUENTE, REBECCA M. QUIJANO, FR. BENIGNO BELTRAN, SVD, ROBERTO S. VERZOLA, AUGUSTO A. LEGASTO, JR., AND JULIA KRISTINA P. LEGASTO, Petitioners, v. EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA, DEFENSE SECRETARY DELFIN LORENZANA, AFP CHIEF OF STAFF LT. GEN. RICARDO R.

VISAYA, AFP DEPUTY CHIEF OF STAFF REAR ADMIRAL ERNESTO C. ENRIQUEZ, AND PHILIPPINE VETERANS AFFAIRS OFFICE (PVAO) OF THE DND, Respondents. G.R. No. 226117 ZAIRA PATRICIA B. BANIAGA, JOHN ARVIN BUENAAGUA, JOANNE ROSE SACE LIM, JUAN ANTONIO RAROGAL MAGALANG, Petitioners, v. SECRETARY OF NATIONAL DEFENSE DELFIN N. LORENZANA, AFP CHIEF OF STAFF RICARDO R. VISAYA, ADMINISTRATOR OF THE PHILIPPINE VETERANS AFFAIRS OFFICE ERNESTO G. CAROLINA, Respondents. G.R. No. 226120 ALGAMAR A. LATIPH, Petitioner, v. SECRETARY DELFIN N. LORENZANA, SUED IN HIS CAPACITY AS SECRETARY OF NATIONAL DEFENSE, LT. GEN. RICARDO R. VISAYA, IN HIS CAPACITY AS CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES AND LT. GEN. ERNESTO G. CAROLINA (RET.), IN HIS CAPACITY AS ADMINISTRATOR, PHILIPPINE VETERANS AFFAIRS OFFICE (PVAO), Respondents. G.R. No. 226294 LEILA M. DE LIMA, IN HER CAPACITY AS SENATOR OF THE REPUBLIC AND AS TAXPAYER, Petitioner, v. HON. SALVADOR C. MEDIALDEA, DEFENSE SECRETARY DELFIN LORENZANA, AFP CHIEF OF STAFF LT. GEN. RICARDO R. VISAYA, UNDERSECRETARY ERNESTO G. CAROLINA, IN HIS CAPACITY AS PHILIPPINE VETERANS AFFAIRS OFFICE (PVAO) ADMINISTRATOR AND B/GEN. RESTITUTO L. AGUILAR, IN HIS CAPACITY AS SHRINE CURATOR AND CHIEF VETERANS MEMORIAL AND HISTORICAL DIVISION AND HEIRS OF FERDINAND EDRALIN MARCOS, Respondent. DECISION PERALTA, J.: In law, as much as in life, there is need to find closure. Issues that have lingered and festered for so long and which unnecessarily divide the people and slow the path to the future have to be interred. To move on is not to forget the past. It is to focus on the present and the future, leaving behind what is better left for history to ultimately decide. The Court finds guidance from the Constitution and the applicable laws, and in the absence of clear prohibition against the exercise of discretion entrusted to the political branches of the Government, the Court must not overextend its readings of what may only be seen as providing tenuous connection to the issue before it. Facts During the campaign period for the 2016 Presidential Election, then candidate Rodrigo R. Duterte (Duterte) publicly announced that he would allow the burial of former President Ferdinand E. Marcos (Marcos) at the Libingan Ng Mga Bayani (LNMB). He won the May 9, 2016 election, garnering 16,601,997 votes. At noon of June 30, 2016, he formally assumed his office at the Rizal Hall in the Malacañan Palace. On August 7, 2016, public respondent Secretary of National Defense Delfin N. Lorenzana issued a Memorandum to the public respondent Chief of Staff of the Armed Forces of the Philippines (AFP), General Ricardo R. Visaya, regarding the interment of Marcos at the LNMB, to wit:ChanRoblesVirtualawlibrary Subject: Interment of the late Former President Ferdinand Marcos at LNMB Reference: Verbal Order of President Rodrigo Duterte on July 11, 2016. In compliance to (sic) the verbal order of the President to implement his election campaign promise to have the remains of the late former President Ferdinand E. Marcos be interred at the Libingan ng mga Bayani, kindly undertake all the necessary planning and preparations to facilitate the coordination of all agencies concerned specially the provisions for ceremonial and security requirements. Coordinate closely with the Marcos family regarding the date of interment and the transport of the late former President's remains from Ilocos Norte to the LNMB.

The overall OPR for this activity will [be] the PVAO since the LNMB is under its supervision and administration. PVAO shall designate the focal person for this activity who shall be the overall overseer of the event. Submit your Implementing Plan to my office as soon as possible.1chanroblesvirtuallawlibrary On August 9, 2016, respondent AFP Rear Admiral Ernesto C. Enriquez issued the following directives to the Philippine Army (PA) Commanding General:ChanRoblesVirtualawlibrary SUBJECT: Funeral Honors and Service TO:

Commanding General, Philippine Army Headquarters, Philippine Army Fort Bonifacio, Taguig City Attn: Assistant Chief of Staff for RRA, G9 1. Pursuant to paragraph 2b, SOP Number 8, GHQ, AFP dated 14 July 1992, provide services, honors and other courtesies for the late Former President Ferdinand E. Marcos as indicated: chanRoblesvirtualLawlibrary [x] Vigil - Provide vigil [x] Bugler/Drummer [x] Firing Party [x] Military Host/Pallbearers [x] Escort and Transportation [x] Arrival/Departure Honors 2. His remains lie in state at Ilocos Norte 3. Interment will take place at the Libingan ng mga Bayani, Ft. Bonifacio, Taguig City. Date: TBAL. 4. Provide all necessary military honors accorded for a President 5. POC: Administrator, PVAO BY COMMAND OF GENERAL VISAYA2

Dissatisfied with the foregoing issuance, the following were filed by petitioners: chanRoblesvirtualLawlibrary1. Petition for Certiorari and Prohibition3 filed by Saturnino Ocampo and several others,4 in their capacities as human rights advocates or human rights violations victims as defined under Section 3 (c) of Republic Act (R.A.) No. 10368 (Human Rights Victims Reparation and Recognition Act of 2013). 2. Petition for Certiorari-in-Intervention5 filed by Rene A.V. Saguisag, Sr. and his son,6 as members of the Bar and human rights lawyers, and his grandchild.7chanrobleslaw 3. Petition for Prohibition8 filed by Representative Edcel C. Lagman, in his personal capacity, as member of the House of Representatives and as Honorary Chairperson of Families of Victims of Involuntary Disappearance (FIND), a duly-registered corporation and organization of victims and families of enforced disappearance, mostly during the martial law regime of the former President Marcos, and several others, 9 in their official capacities as duly-elected Congressmen of the House of Representatives of the Philippines. 4. Petition for Prohibition10 filed by Loretta Ann Pargas-Rosales, former Chairperson of the Commission on Human Rights, and several others,11 suing as victims of State-sanctioned human rights violations during the martial law regime of Marcos. 5. Petition for Mandamus and Prohibition12 filed by Heherson T. Alvarez, former Senator of the Republic of the Philippines, who fought to oust the dictatorship of Marcos, and several others, 13as concerned Filipino citizens and taxpayers. 6. Petition for Certiorari and Prohibition14 filed by Zaira Patricia B. Baniaga and several others,15 as concerned Filipino citizens and taxpayers.

7. Petition for Certiorari and Prohibition16 filed by Algamar A. Latiph, former Chairperson of the Regional Human Rights Commission, Autonomous Region in Muslim Mindanao, by himself and on behalf of the Moro17 who are victims of human rights during the martial law regime of Marcos. 8. Petition for Certiorari and Prohibition18 filed by Leila M. De Lima as member of the Senate of the Republic of the Philippines, public official and concerned citizen. Issues Procedural 1. Whether President Duterte's determination to have the remains of Marcos interred at the LNMB poses a justiciable controversy. 2. Whether petitioners have locus standi to file the instant petitions. 3. Whether petitioners violated the doctrines of exhaustion of administrative remedies and hierarchy of courts. Substantive 1. Whether the respondents Secretary of National Defense and AFP Rear Admiral committed grave abuse of discretion, amounting to lack or excess of jurisdiction, when they issued the assailed memorandum and directive in compliance with the verbal order of President Duterte to implement his election campaign promise to have the remains of Marcos interred at the LNMB. 2. Whether the Issuance and implementation of the assailed memorandum and directive violate the Constitution, domestic and international laws, particularly: chanRoblesvirtualLawlibrary(a) Sections 2, 11, 13, 23, 26, 27 and 28 of Article II, Section 1 of Article III, Section 17 of Article VII, Section 1 of Article XI, Section 3(2) of Article XIV, and Section 26 of Article XVIII of the 1987 Constitution; (b) R.A. No. 289; (c) R.A. No. 10368; (d) AFP Regulation G 161-375 dated September 11, 2000; (e) The International Covenant on Civil and Political Rights; (f) The "Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law" of the United Nations (U.N.) General Assembly; and cralawlawlibrary (g) The "Updated Set of Principles for Protection and Promotion of Human Rights through Action to Combat Impunity" of the U.N. Economic and Social Council; 3. Whether historical facts, laws enacted to recover ill-gotten wealth from the Marcoses and their cronies, and the pronouncements of the Court on the Marcos regime have nullified his entitlement as a soldier and former President to interment at the LNMB. 4. Whether the Marcos family is deemed to have waived the burial of the remains of former President Marcos at the LNMB after they entered into an agreement with the Government of the Republic of the Philippines as to the conditions and procedures by which his remains shall be brought back to and interred in the Philippines. Opinion The petitions must be dismissed.

Procedural Grounds Justiciable controversy It is well settled that no question involving the constitutionality or validity of a law or governmental act may be heard and decided by the Court unless the following requisites for judicial inquiry are present: (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.19 In this case, the absence of the first two requisites, which are the most essential, renders the discussion of the last two superfluous.20chanrobleslaw 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.21 There must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence.22 Related to the requisite of an actual case or controversy is the requisite of "ripeness," which means 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.23 Moreover, 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.24 Those areas pertain to 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 legislative or executive branch of the government.25cralawred As they are concerned with questions of policy and issues dependent upon the wisdom, not legality of a particular measure, 26 political questions used to be beyond the ambit of judicial review. However, the scope of the political question doctrine has been limited by Section 1 of Article VIII of the 1987 Constitution when it vested in the judiciary the power to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. The Court agrees with the OSG that President Duterte's decision to have the remains of Marcos interred at the LNMB involves a political question that is not a justiciable controversy. In the exercise of his powers under the Constitution and the Executive Order (E.O.) No. 292 (otherwise known as the Administrative Code of 1987) to allow the interment of Marcos at the LNMB, which is a land of the public domain devoted for national military cemetery and military shrine purposes, President Duterte decided a question of policy based on his wisdom that it shall promote national healing and forgiveness. There being no taint of grave abuse in the exercise of such discretion, as discussed below, President Duterte's decision on that political question is outside the ambit of judicial review. Locus standi Defined as a right of appearance in a court of justice on a given question, 27locus standi requires that 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.28 Unless a person has sustained or is in imminent danger of sustaining an injury as a result of an act complained of, such proper party has no standing.29 Petitioners, who filed their respective petitions for certiorari, prohibition and mandamus, in their capacities as citizens, human rights violations victims, legislators, members of the Bar and taxpayers, have no legal standing to file such petitions because they failed to show that they have suffered or will suffer direct and personal injury as a result of the interment of Marcos at the LNMB. 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.30 In this case, what is essentially being assailed is the wisdom behind the decision of the President to proceed with the interment of Marcos at the LNMB. As taxpayers, petitioners merely claim illegal disbursement of public funds, without showing that Marcos is disqualified to be interred at the LNMB by either express or implied provision of the Constitution, the laws or jurisprudence. Petitioners Saguisag, et al.,31 as members of the Bar, are required to allege any direct or potential injury which the Integrated Bar of the Philippines, as an institution, or its members may suffer as a consequence of the act complained of.32 Suffice it to state that the averments in their petition-in-intervention failed to disclose such injury,

and that their interest in this case is too general and shared by other groups, such that their duty to uphold the rule of law, without more, is inadequate to clothe them with requisite legal standing. 33chanrobleslaw As concerned citizens, petitioners are also required to substantiate that the issues raised are of transcendental importance, of overreaching significance to society, or of paramount public interest.34 In cases involving such issues, the imminence and clarity of the threat to fundamental constitutional rights outweigh the necessity for prudence.35 In Marcos v. Manglapus,36 the majority opinion observed that the subject controversy was of grave national importance, and that the Court's decision would have a profound effect on the political, economic, and other aspects of national life. The ponencia explained that the case was in a class by itself, unique and could not create precedent because it involved a dictator forced out of office and into exile after causing twenty years of political, economic and social havoc in the country and who, within the short space of three years (from 1986), sought to return to the Philippines to die. At this point in time, the interment of Marcos at a cemetery originally established as a national military cemetery and declared a national shrine would have no profound effect on the political, economic, and other aspects of our national life considering that more than twenty-seven (27) years since his death and thirty (30) years after his ouster have already passed. Significantly, petitioners failed to demonstrate a clear and imminent threat to their fundamental constitutional rights. As human rights violations victims during the Martial Law regime, some of petitioners decry re-traumatization, historical revisionism, and disregard of their state recognition as heroes. Petitioners' argument is founded on the wrong premise that the LNMB is the National Pantheon intended by law to perpetuate the memory of all Presidents, national heroes and patriots. The history of the LNMB, as will be discussed further, reveals its nature and purpose as a national military cemetery and national shrine, under the administration of the AFP. Apart from being concerned citizens and taxpayers, petitioners Senator De Lima, and Congressman Lagman, et al.37 come before the Court as legislators suing to defend the Constitution and to protect appropriated public funds from being used unlawfully. In the absence of a clear showing of any direct injury to their person or the institution to which they belong, their standing as members of the Congress cannot be upheld. 38 They do not specifically claim that the official actions complained of, i.e., the memorandum of the Secretary of National Defense and the directive of the AFP Chief of Staff regarding the interment of Marcos at the LNMB, encroach on their prerogatives as legislators.39chanrobleslaw Exhaustion of Administrative Remedies Petitioners violated the doctrines of exhaustion of administrative remedies and hierarchy of courts. Under the doctrine of exhaustion of administrative remedies, before a party is allowed to seek the intervention of the court, one should have availed first of all the means of administrative processes available. 40 If resort to a remedy within the administrative machinery can still be made by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction, then such remedy should be exhausted first before the court's judicial power can be sought.41 For reasons of comity and convenience, courts of justice shy away from a dispute until the system of administrative redress has been completed and complied with, so as to give the administrative agency concerned every opportunity to correct its error and dispose of the case. 42 While there are exceptions43 to the doctrine of exhaustion of administrative remedies, petitioners failed to prove the presence of any of those exceptions. Contrary to their claim of lack of plain, speedy, adequate remedy in the ordinary course of law, petitioners should be faulted for failing to seek reconsideration of the assailed memorandum and directive before the Secretary of National Defense. The Secretary of National Defense should be given opportunity to correct himself, if warranted, considering that AFP Regulations G 161-375 was issued upon his order. Questions on the implementation and interpretation thereof demand the exercise of sound administrative discretion, requiring the special knowledge, experience and services of his office to determine technical and intricate matters of fact. If petitioners would still be dissatisfied with the decision of the Secretary, they could elevate the matter before the Office of the President which has control and supervision over the Department of National Defense (DND).44chanrobleslaw Hierarchy of Courts In the same vein, while direct resort to the Court through petitions for the extraordinary writs of certiorari, prohibition and mandamus are allowed under exceptional cases,45 which are lacking in this case, petitioners

cannot simply brush aside the doctrine of hierarchy of courts that requires such petitions to be filed first with the proper Regional Trial Court (RTC). The RTC is not just a trier of facts, but can also resolve questions of law in the exercise of its original and concurrent jurisdiction over petitions for certiorari, prohibition and mandamus, and has the power to issue restraining order and injunction when proven necessary. In fine, the petitions at bar should be dismissed on procedural grounds alone. Even if We decide the case based on the merits, the petitions should still be denied. Substantive Grounds There is grave abuse of discretion when an act is (1) done contrary to the Constitution, the law or jurisprudence or (2) executed whimsically, capriciously or arbitrarily, out of malice, ill will or personal bias. 46 None is present in this case. I The President's decision to bury Marcos at the LNMB is in accordance with the Constitution, the law or jurisprudence Petitioners argue that the burial of Marcos at the LNMB should not be allowed because it has the effect of not just rewriting history as to the Filipino people's act of revolting against an authoritarian ruler but also condoning the abuses committed during the Martial Law, thereby violating the letter and spirit of the 1987 Constitution, which is a "post-dictatorship charter" and a "human rights constitution." For them, the ratification of the Constitution serves as a clear condemnation of Marcos' alleged "heroism." To support their case, petitioners invoke Sections 2,4711,48 13,49 23,50 26,51 2752 and 2853 of Article II, Sec. 17 of Art. VII,54 Sec. 3(2) of Art. XIV,55 Sec. 1 of Art. XI,56 and Sec. 26 of Art. XVIII57 of the Constitution. There is no merit to the contention. As the Office of the Solicitor General (OSG) logically reasoned out, while the Constitution is a product of our collective history as a people, its entirety should not be interpreted as providing guiding principles to just about anything remotely related to the Martial Law period such as the proposed Marcos burial at the LNMB. Tañada v. Angara58 already ruled that the provisions in Article II of the Constitution are not self-executing. Thus:ChanRoblesVirtualawlibrary By its very title, Article II of the Constitution is a "declaration of principles and state policies." The counterpart of this article in the 1935 Constitution is called the "basic political creed of the nation" by Dean Vicente Sinco. These principles in Article II are not intended to be self executing principles ready for enforcement through the courts. They are used by the judiciary as aids or as guides in the exercise of its power of judicial review, and by the legislature in its enactment of laws. As held in the leading case of Kilosbayan, Incorporated vs. Morato, the principles and state policies enumerated in Article II x x x are not "self-executing provisions, the disregard of which can give rise to a cause of action in the courts. They do not embody judicially enforceable constitutional rights but guidelines for legislation." In the same light, we held in Basco vs. Pagcor that broad constitutional principles need legislative enactments to implement them x x x. xxx The reasons for denying a cause of action to an alleged infringement of broad constitutional principles are sourced from basic considerations of due process and the lack of judicial authority to wade "into the uncharted ocean of social and economic policy making."59chanroblesvirtuallawlibrary In the same vein, Sec. 1 of Art. XI of the Constitution is not a self-executing provision considering that a law should be passed by the Congress to clearly define and effectuate the principle embodied therein. As a matter of fact, pursuant thereto, Congress enacted R.A. No. 6713 ("Code of Conduct and Ethical Standards for Public Officials and Employees"), R.A. No. 6770 ("The Ombudsman Act of 1989"), R.A. No. 7080 (An Act Defining and Penalizing the Crime of Plunder), and Republic Act No. 9485 ("Anti-Red Tape Act of 2007"). To complement these statutes, the Executive Branch has issued various orders, memoranda, and instructions relative to the norms of behavior/code of conduct/ethical standards of officials and employees; workflow charts/public transactions; rules and policies on gifts and benefits; whistle blowing and reporting; and client feedback program.

Petitioners' reliance on Sec. 3(2) of Art. XIV and Sec. 26 of Art. XVIII of the Constitution is also misplaced. Sec. 3(2) of Art. XIV refers to the constitutional duty of educational institutions in teaching the values of patriotism and nationalism and respect for human rights, while Sec. 26 of Art. XVIII is a transitory provision on sequestration or freeze orders in relation to the recovery of Marcos' ill-gotten wealth. Clearly, with respect to these provisions, there is no direct or indirect prohibition to Marcos' interment at the LNMB. The second sentence of Sec. 17 of Art. VII pertaining to the duty of the President to "ensure that the laws be faithfully executed," which is identical to Sec. 1, Title I, Book III of the Administrative Code of 1987, 60 is likewise not violated by public respondents. Being the Chief Executive, the President represents the government as a whole and sees to it that all laws are enforced by the officials and employees of his or her department. 61 Under the Faithful Execution Clause, the President has the power to take "necessary and proper steps" to carry into execution the law.62 The mandate is self-executory by virtue of its being inherently executive in nature and is intimately related to the other executive functions.63 It is best construed as an imposed obligation, not a separate grant of power.64 The provision simply underscores the rule of law and, corollarily, the cardinal principle that the President is not above the laws but is obliged to obey and execute them. 65chanrobleslaw Consistent with President Duterte's mandate under Sec. 17, Art. VII of the Constitution, the burial of Marcos at the LNMB does not contravene R.A. No. 289, R.A. No. 10368, and the international human rights laws cited by petitioners. A. On R.A. No. 28966chanrobleslaw For the perpetuation of their memory and for the inspiration and emulation of this generation and of generations still unborn, R.A. No. 289 authorized the construction of a National Pantheon as the burial place of the mortal remains of all the Presidents of the Philippines, national heroes and patriots.67 It also provided for the creation of a Board on National Pantheon to implement the law.68chanrobleslaw On May 12, 1953, President Elpidio R. Quirino approved the site of the National Pantheon at East Avenue, Quezon City.69 On December 23, 1953, he issued Proclamation No. 431 to formally "withdraw from sale or settlement and reserve as a site for the construction of the National Pantheon a certain parcel of land located in Quezon City." However, on July 5, 1954, President Magsaysay issued Proclamation No. 42 revoking Proclamation Nos. 422 and 431, both series of 1953, and reserving the parcels of land embraced therein for national park purposes to be known as Quezon Memorial Park. It is asserted that Sec. 1 of R.A. No 289 provides for the legal standard by which a person's mortal remains may be interred at the LNMB, and that AFP Regulations G 161-375 merely implements the law and should not violate its spirit and intent. Petitioners claim that it is known, both here and abroad, that Marcos' acts and deed - the gross human rights violations, the massive corruption and plunder of government coffers, and his military record that is fraught with myths, factual inconsistencies, and lies - are neither worthy of perpetuation in our memory nor serve as a source of inspiration and emulation of the present and future generations. They maintain that public respondents are not members of the Board on National Pantheon, which is authorized by the law to cause the burial at the LNMB of the deceased Presidents of the Philippines, national heroes, and patriots. Petitioners are mistaken. Both in their pleadings and during the oral arguments, they miserably failed to provide legal and historical bases as to their supposition that the LNMB and the National Pantheon are one and the same. This is not at all unexpected because the LNMB is distinct and separate from the burial place envisioned in R.A. No 289. The parcel of land subject matter of President Quirino's Proclamation No. 431, which was later on revoked by President Magsaysay's Proclamation No. 42, is different from that covered by Marcos' Proclamation No. 208. The National Pantheon does not exist at present. To date, the Congress has deemed it wise not to appropriate any funds for its construction or the creation of the Board on National Pantheon. This is indicative of the legislative will not to pursue, at the moment, the establishment of a singular interment place for the mortal remains of all Presidents of the Philippines, national heroes, and patriots. Perhaps, the Manila North Cemetery, the Manila South Cemetery, and other equally distinguished private cemeteries already serve the noble purpose but without cost to the limited funds of the government. Even if the Court treats R.A. No. 289 as relevant to the issue, still, petitioners' allegations must fail. To apply the standard that the LNMB is reserved only for the "decent and the brave" or "hero" would be violative of public policy as it will put into question the validity of the burial of each and every mortal remains resting therein, and

infringe upon the principle of separation of powers since the allocation of plots at the LNMB is based on the grant of authority to the President under existing laws and regulations. Also, the Court shares the view of the OSG that the proposed interment is not equivalent to the consecration of Marcos' mortal remains. The act in itself does not confer upon him the status of a "hero." Despite its name, which is actually a misnomer, the purpose of the LNMB, both from legal and historical perspectives, has neither been to confer to the people buried there the title of "hero" nor to require that only those interred therein should be treated as a "hero." Lastly, petitioners' repeated reference to a "hero's burial" and "state honors," without showing proof as to what kind of burial or honors that will be accorded to the remains of Marcos, is speculative until the specifics of the interment have been finalized by public respondents. B. On R.A. No. 1036870chanrobleslaw For petitioners, R.A. No. 10368 modified AFP Regulations G 161-375 by implicitly disqualifying Marcos' burial at the LNMB because the legislature, which is a co-equal branch of the government, has statutorily declared his tyranny as a deposed dictator and has recognized the heroism and sacrifices of the Human Rights Violations Victims (HRVVs)71 under his regime. They insist that the intended act of public respondents damages and makes mockery of the mandatory teaching of Martial Law atrocities and of the lives and sacrifices of its victims. They contend that "reparation" under R.A. No. 10368 is non-judicial in nature but a political action of the State through the Legislative and Executive branches by providing administrative relief for the compensation, recognition, and memorialization of human rights victims. We beg to disagree. Certainly, R.A. No. 10368 recognizes the heroism and sacrifices of all Filipinos who were victims of summary execution, torture, enforced or involuntary disappearance, and other gross human rights violations committed from September 21, 1972 to February 25, 1986. To restore their honor and dignity, the State acknowledges its moral and legal obligation72 to provide reparation to said victims and/or their families for the deaths, injuries, sufferings, deprivations and damages they experienced. In restoring the rights and upholding the dignity of HRVVs, which is part of the right to an effective remedy, R.A. No. 10368 entitles them to monetary and non-monetary reparation. Any HRVV qualified under the law73 shall receive a monetary reparation, which is tax-free and without prejudice to the receipt of any other sum from any other person or entity in any case involving human rights violations.74 Anent the non-monetary reparation, the Department of Health (DOH), the Department of Social Welfare and Development (DSWD), the Department of Education (DepEd), the Commission on Higher Education (CHED), the Technical Education and Skills Development Authority (TESDA), and such other government agencies are required to render the necessary services for the HRVVs and/or their families, as may be determined by the Human Rights Victims' Claims Board (Board) pursuant to the provisions of the law.75chanrobleslaw Additionally, R.A. No. 10368 requires the recognition of the violations committed against the HRVVs, regardless of whether they opt to seek reparation or not. This is manifested by enshrining their names in the Roll of Human Rights Violations Victims (Roll) prepared by the Board.76 The Roll may be displayed in government agencies designated by the HRVV Memorial Commission (Commission).77 Also, a Memorial/Museum/Library shall be established and a compendium of their sacrifices shall be prepared and may be readily viewed and accessed in the internet.78 The Commission is created primarily for the establishment, restoration, preservation and conservation of the Memorial/Museum/ Library/Compendium.79chanrobleslaw To memorialize80 the HRVVs, the Implementing Rules and Regulations of R.A. No. 10368 further mandates that: (1) the database prepared by the Board derived from the processing of claims shall be turned over to the Commission for archival purposes, and made accessible for the promotion of human rights to all government agencies and instrumentalities in order to prevent recurrence of similar abuses, encourage continuing reforms and contribute to ending impunity;81 (2) the lessons learned from Martial Law atrocities and the lives and sacrifices of HRVVs shall be included in the basic and higher education curricula, as well as in continuing adult learning, prioritizing those most prone to commit human rights violations; 82 and (3) the Commission shall publish only those stories of HRVVs who have given prior informed consent.83chanrobleslaw This Court cannot subscribe to petitioners' logic that the beneficial provisions of R.A. No. 10368 are not exclusive as it includes the prohibition on Marcos' burial at the LNMB. It would be undue to extend the law beyond what it actually contemplates. With its victim-oriented perspective, our legislators could have easily inserted a provision

specifically proscribing Marcos' interment at the LNMB as a "reparation" for the HRVVs, but they did not. As it is, the law is silent and should remain to be so. This Court cannot read into the law what is simply not there. It is irregular, if not unconstitutional, for Us to presume the legislative will by supplying material details into the law. That would be tantamount to judicial legislation. Considering the foregoing, the enforcement of the HRVVs' rights under R.A. No 10368 will surely not be impaired by the interment of Marcos at the LNMB. As opined by the OSG, the assailed act has no causal connection and legal relation to the law. The subject memorandum and directive of public respondents do not and cannot interfere with the statutory powers and functions of the Board and the Commission. More importantly, the HRVVs' entitlements to the benefits provided for by R.A. No 10368 and other domestic laws are not curtailed. It must be emphasized that R.A. No. 10368 does not amend or repeal, whether express or implied, the provisions of the Administrative Code or AFP Regulations G 161-375:ChanRoblesVirtualawlibrary It is a well-settled rule of statutory construction that repeals by implication are not favored. In order to effect a repeal by implication, the later statute must be so irreconcilably inconsistent and repugnant with the existing law that they cannot be 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 presumed. There must be a showing of repugnance clear and convincing in 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 of that standard does not suffice. x x x84chanroblesvirtuallawlibrary C. On International Human Rights Laws Petitioners argue that the burial of Marcos at the LNMB will violate the rights of the HRVVs to "full" and "effective" reparation, which is provided under the International Covenant on Civil and Political Rights (ICCPR),85 the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law 86 adopted by the U.N. General Assembly on December 16, 2005, and the Updated Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity87 dated February 8, 2005 by the U.N. Economic and Social Council. We do not think so. The ICCPR,88 as well as the U.N. principles on reparation and to combat impunity, call for the enactment of legislative measures, establishment of national programmes, and provision for administrative and judicial recourse, in accordance with the country's constitutional processes, that are necessary to give effect to human rights embodied in treaties, covenants and other international laws. The U.N. principles on reparation expressly states:ChanRoblesVirtualawlibrary Emphasizing that the Basic Principles and Guidelines contained herein do not entail new international or domestic legal obligations but identify mechanisms, modalities, procedures and methods for the implementation of existing legal obligations under international human rights law and international humanitarian law which are complementary though different as to their norms[.][Emphasis supplied] The Philippines is more than compliant with its international obligations. When the Filipinos regained their democratic institutions after the successful People Power Revolution that culminated on February 25, 1986, the three branches of the government have done their fair share to respect, protect and fulfill the country's human rights obligations, to wit: chanRoblesvirtualLawlibraryThe 1987 Constitution contains provisions that promote and protect human rights and social justice. As to judicial remedies, aside from the writs of habeas corpus, amparo,89 and habeas data,90 the Supreme Court promulgated on March 1, 2007 Administrative Order No. 25-2007,91 which provides rules on cases involving extra-judicial killings of political ideologists and members of the media. The provision of the Basic Principles and Guidelines on the prevention of the victim's re-traumatization applies in the course of legal and administrative procedures designed to provide justice and reparation. 92chanrobleslaw On the part of the Executive Branch, it issued a number of administrative and executive orders. Notable of which are the following: 1. A.O. No. 370 dated December 10, 1997 (Creating the Inter-Agency Coordinating Committee on Human Rights)

2. E.O. No. 118 dated July 5, 1999 (Providing for the Creation of a National Committee on the Culture of Peace) 3. E.O. No. 134 dated July 31, 1999 (Declaring August 12, 1999 and Every 12th Day of August Thereafter as International Humanitarian Law Day) 4. E.O. No. 404 dated January 24, 2005 (Creating the Government of the Republic of the Philippines Monitoring Committee [GRPMC] on Human Rights and International Humanitarian Law) 5. A.O. No. 157 dated August 21, 2006 (Creating an Independent Commission to Address Media and Activist Killings) 6. A.O. No. 163 dated December 8, 2006 (Strengthening and Increasing the Membership of the Presidential Human Rights Committee, and Expanding Further the Functions of Said Committee)93chanrobleslaw 7. A.O. No. 181 dated July 3, 2007 (Directing the Cooperation and Coordination Between the National Prosecution Service and Other Concerned Agencies of Government for the Successful Investigation and Prosecution of Political and Media Killings) 8. A.O. No. 197 dated September 25, 2007 (DND and AFP Coordination with PHRC Sub-committee on Killings and Disappearances) 9. A.O. No. 211 dated November 26, 2007 (Creating a Task Force Against Political Violence) 10. A.O. No. 249 dated December 10, 2008 (Further Strengthening Government Policies, Plans, and Programs for the Effective Promotion and Protection of Human Rights on the Occasion of the 60th Anniversary of the Universal Declaration of Human Rights) 11. E.O. No. 847 dated November 23, 2009 (Creating the Church-Police-Military-Liaison Committee to Formulate and Implement a Comprehensive Program to Establish Strong Partnership Between the State and the Church on Matters Concerning Peace and Order and Human Rights) 12. A.O. No. 35 dated November 22, 2012 (Creating the Inter-Agency Committee on Extra-Legal Killings, Enforced Disappearances, Torture and Other Grave Violations of the Right to Life, Liberty and Security of Persons) 13. A.O. No. 1 dated October 11, 2016 (Creating the Presidential Task Force on Violations of the Right to Life, Liberty and Security of the Members of the Media) Finally, the Congress passed the following laws affecting human rights: 1. Republic Act No. 7438 (An Act Defining Certain Rights of Person Arrested, Detained or Under Custodia/Investigation as well as the Duties of the Arresting, Detaining and Investigating Officers and Providing Penalties for Violations Thereof) 2. Republic Act No. 8371 (The Indigenous Peoples' Rights Act of 1997) 3. Republic Act No. 9201 (National Human Rights Consciousness Week Act of 2002) 4. Republic Act No. 9208 (Anti-Trafficking in Persons Act of 2003) 5. Republic Act No. 9262 (Anti-Violence Against Women and Their Children Act of 2004) 6. Republic Act No. 9344 (Juvenile Justice and Welfare Act of 2006) 7. Republic Act No. 9372 (Human Security Act of 2007) 8. Republic Act No. 9710 (The Magna Carta of Women)

9. Republic Act No. 9745 (Anti-Torture Act of 2009) 10. Republic Act No. 9851 (Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity) 11. Republic Act No. 10121 (Philippine Disaster Risk Reduction and Management Act of 2010) 12. Republic Act No. 10168 (The Terrorism Financing Prevention and Suppression Act of 2012) 13. Republic Act No. 10353 (Anti-Enforced or Involuntary Disappearance Act of 2012) 14. Republic Act No. 10364 (Expanded Anti-Trafficking In Persons Act of 2012) 15. Republic Act No. 10368 (Human Rights Victims Reparation And Recognition Act of 2013) 16. Republic Act No. 10530 (The Red Cross and Other Emblems Act of 2013) Contrary to petitioners' postulation, our nation's history will not be instantly revised by a single resolve of President Duterte, acting through the public respondents, to bury Marcos at the LNMB. Whether petitioners admit it or not, the lessons of Martial Law are already engraved, albeit in varying degrees, in the hearts and minds of the present generation of Filipinos. As to the unborn, it must be said that the preservation and popularization of our history is not the sole responsibility of the Chief Executive; it is a joint and collective endeavor of every freedomloving citizen of this country. Notably, complementing the statutory powers and functions of the Human Rights Victims' Claims Board and the HRVV Memorial Commission in the memorialization of HRVVs, the National Historical Commission of the Philippines (NHCP), formerly known as the National Historical Institute (NHI),94 is mandated to act as the primary government agency responsible for history and is authorized to determine all factual matters relating to official Philippine history.95 Among others, it is tasked to: (a) conduct and support all kinds of research relating to Philippine national and local history; (b) develop educational materials in various media, implement historical educational activities for the popularization of Philippine history, and disseminate, information regarding Philippine historical events, dates, places and personages; and (c) actively engage in the settlement or resolution of controversies or issues relative to historical personages, places, dates and events. 96 Under R.A. Nos. 10066 (National Cultural Heritage Act of 2009)97 and 10086 (Strengthening Peoples' Nationalism Through Philippine History Act),98 the declared State policy is to conserve, develop, promote, and popularize the nation's historical and cultural heritage and resources.99 Towards this end, means shall be provided to strengthen people's nationalism, love of country, respect for its heroes and pride for the people's accomplishments by reinforcing the importance of Philippine national and local history in daily life with the end in view of raising social consciousness.100 Utmost priority shall be given not only with the research on history but also its popularization.101chanrobleslaw II. The President's decision to bury Marcos at the LNMB is not done whimsically, capriciously or arbitrarily, out of malice, ill will or personal bias Petitioners contend that the interment of Marcos at the LNMB will desecrate it as a sacred and hallowed place and a revered national shrine where the mortal remains of our country's great men and women are interred for the inspiration and emulation of the present generation and generations to come. They erred. A. National Shrines As one of the cultural properties of the Philippines, national historical shrines (or historical shrines) refer to sites or structures hallowed and revered for their history or association as declared by the NHCP.102 The national shrines created by law and presidential issuance include, among others: Fort Santiago (Dambana ng Kalayaan) in Manila;103 all battlefield areas in Corregidor and Bataan;104 the site of First Mass in the Philippines in Magallanes, Limasawa, Leyte;105 Aguinaldo Shrine or Freedom Shrine in Kawit, Cavite;106 Fort San Antonio Abad National Shrine in Malate, Manila;107 Tirad Pass National Shrine in Ilocos Sur;108 Ricarte Shrine109 and Aglipay Shrine110 in Batac, Ilocos Norte; Liberty Shrine in Lapu-Lapu, Cebu;111 "Red Beach" or the landing point of General Douglas

MacArthur and the liberating forces in Baras, Palo, Leyte;112 Dapitan City as a National Shrine City in Zamboanga Del Norte;113 General Leandro Locsin Fullon National Shrine in Hamtic, Antique; 114 and Mabini Shrine in Polytechnic University of the Philippines - Mabini Campus, Sta. Mesa, Manila.115 As sites of the birth, exile, imprisonment, detention or death of great and eminent leaders of the nation, it is the policy of the Government to hold and keep the national shrines as sacred and hallowed place. 116 P.O. No. 105117 strictly prohibits and punishes by imprisonment and/or fine the desecration of national shrines by disturbing their peace and serenity through digging, excavating, defacing, causing unnecessary noise, and committing unbecoming acts within their premises. R.A. No. 10066 also makes it punishable to intentionally modify, alter, or destroy the original features of, or undertake construction or real estate development in any national shrine, monument, landmark and other historic edifices and structures, declared, classified, and marked by the NHCP as such, without the prior written permission from the National Commission for Culture and the Arts (NCAA).118chanrobleslaw As one of the cultural agencies attached to the NCAA, 119 the NHCP manages, maintains and administers national shrines, monuments, historical sites, edifices and landmarks of significant historico-cultural value.120 In particular, the NHCP Board has the power to approve the declaration of historic structures and sites, such as national shrines, monuments, landmarks and heritage houses and to determine the manner of their identification, maintenance, restoration, conservation, preservation and protection.121chanrobleslaw Excluded, however, from the jurisdiction of the NHCP are the military memorials and battle monuments declared as national shrines, which have been under the administration, maintenance and development of the Philippine Veterans Affairs Office (PVAO) of the DND. Among the military shrines are: Mt. Samat National Shrine in Pilar, Bataan;122 Kiangan War Memorial Shrine in Linda, Kiangan, Ifugao;123 Capas National Shrine in Capas, Tarlac;124 Ricarte National Shrine in Malasin, Batac, Ilocos Norte;125 Balantang Memorial Cemetery National Shrine in Jaro, Iloilo;126 Balete Pass National Shrine in Sta. Fe, Nueva Vizcaya;127 USAFIP, NL Military Shrine and Park in Bessang Pass, Cervantes, Ilocos Sur;128 and the LNMB in Taguig City, Metro Manila.129chanrobleslaw B. The Libingan Ng Mga Bayani At the end of World War II, the entire nation was left mourning for the death of thousands of Filipinos. Several places served as grounds for the war dead, such as the Republic Memorial Cemetery, the Bataan Memorial Cemetery, and other places throughout the country. The Republic Memorial Cemetery, in particular, was established in May 1947 as a fitting tribute and final resting place of Filipino military personnel who died in World War II. On October 23, 1954, President Ramon D. Magsaysay, Sr. issued E.O. No. 77, which ordered "the remains of the war dead interred at the Bataan Memorial Cemetery, Bataan Province, and at other places in the Philippines, be transferred to, and reinterred at, the Republic Memorial Cemetery at Fort Wm Mckinley, Rizal Province" so as to minimize the expenses for the maintenance and upkeep, and to make the remains accessible to the widows, parents, children, relatives, and friends. On October 27, 1954, President Magsaysay issued Proclamation No. 86, which changed the name of Republic Memorial Cemetery to Libingan Ng Mga Bayani to symbolize "the cause for which our soldiers have died" and to "truly express the nations esteem and reverence for her war dead."130chanrobleslaw On July 12, 1957, President Carlos P. Garcia issued Proclamation No. 423, which reserved for military purposes, under the administration of the AFP Chief of Staff, the land where LNMB is located. The LNMB was part of a military reservation site then known as Fort Wm McKinley (now known as Fort Andres Bonifacio). On May 28, 1967, Marcos issued Proclamation No. 208, which excluded the LNMB from the Fort Bonifacio military reservation and reserved the LNMB for national shrine purposes under the administration of the National Shrines Commission (NSC) under the DND. On September 24, 1972, Marcos, in the exercise of his powers as the AFP Commander-in-Chief, and pursuant to Proclamation No. 1081 dated September 21, 1972, and General Order No. 1 dated September 22, 1972, as amended, issued Presidential Decree (P.D.) No. 1 which reorganized the Executive Branch of the National Government through the adoption of the Integrated Reorganization Plan (IRP). Section 7, Article XV, Chapter I, Part XII thereof abolished the NSC and its functions together with applicable appropriations, records, equipment, property and such personnel as may be necessary were transferred to the NHI under the Department of Education (DEC). The NHI was responsible for promoting and preserving the Philippine cultural heritage by

undertaking, inter alia, studies on Philippine history and national heroes and maintaining national shrines and monuments.131chanrobleslaw Pending the organization of the DEC, the functions relative to the administration, maintenance and development of national shrines tentatively integrated into the PVAO in July 1973. On January 26, 1977, President Marcos issued P.D. No. 1076. Section 7, Article XV, Chapter I, Part XII of the IRP was repealed on the grounds that "the administration, maintenance and development of national shrines consisting of military memorials or battle monuments can be more effectively accomplished if they are removed from the [DEC] and transferred to the [DND] by reason of the latter s greater capabilities and resources" and that "the functions of the [DND] are more closely related and relevant to the charter or significance of said national shrines." Henceforth, the PVAO through the Military Shrines Service (MSS), which was created to perform the functions of the abolished NSC - would administer, maintain and develop military memorials and battle monuments proclaimed as national shrines. On July 25, 1987, President Corazon C. Aquino issued the Administrative Code. The Code retains PVAO under the supervision and control of the Secretary of National Defense.132 Among others, PVAO shall administer, develop and maintain military shrines.133 With the approval of PVAO Rationalization Plan on June 29, 2010, pursuant to E.O. No. 366 dated October 4, 2004, MSS was renamed to Veterans Memorial and Historical Division, under the supervision and control of PVAO, which is presently tasked with the management and development of military shrines and the perpetuation of the heroic deeds of our nation's veterans. As a national military shrine, the main features, structures, and facilities of the LNMB are as follows: 1. Tomb of the Unknown Soldiers - The main structure constructed at the center of the cemetery where wreath laying ceremonies are held when Philippine government officials and foreign dignitaries visit the LNMB. The following inscription is found on the tomb: "Here lies a Filipino soldier whose name is known only to God." Behind the tomb are three marble pillars representing the three main island groups of the Philippines - Luzon, Visayas and Mindanao. Buried here were the remains of 39,000 Filipino soldiers who were originally buried in Camp O'Donnell Concentration Camp and Fort Santiago, Intramuros, Manila. 2. Heroes Memorial Gate - A structure shaped in the form of a large concrete tripod with a stairway leading to an upper view deck and a metal sculpture at the center. This is the first imposing structure one sees upon entering the grounds of the cemetery complex. 3. Black Stone Walls - Erected on opposite sides of the main entrance road leading to the Tomb of the Unknown Soldiers and just near the Heroes Memorial are two 12-foot high black stone walls which bear the words, "I do not know the dignity of his birth, but I do know the glory of his death." that General Douglas MacArthur made during his sentimental journey to the Philippines in 1961. 4. Defenders of Bataan and Corregidor Memorial Pylon - Inaugurated on April 5, 1977 by Secretary Renato S. De Villa in memory of the defenders of Bataan and Corregidor during World War II. This monument is dedicated as an eternal acknowledgment of their valor and sacrifice in defense of the Philippines. 5. Korean Memorial Pylon - A towering monument honoring the 112 Filipino officers and men who, as members of the Philippine Expeditionary Forces to Korea (PEFTOK), perished during the Korean War. 6. Vietnam Veterans Memorial Pylon - Dedicated to the members of the Philippine contingents and Philippine civic action groups to Vietnam (PHILCON-V and PHILCAG-V) who served as medical, dental, engineering construction, community and psychological workers, and security complement. They offered tremendous sacrifices as they alleviated human suffering in war-ravaged Vietnam from 1964-1971. Inscribed on the memorial pylon are the words: "To build and not to destroy, to bring the Vietnamese people happiness and not sorrow, to develop goodwill and not hatred." 7. Philippine World War II Guerillas Pylon - Erected by the Veterans Federation of the Philippines as a testimony to the indomitable spirit and bravery of the Filipino guerillas of World War II who refused to be cowed into submission and carried on the fight for freedom against an enemy with vastly superior arms

and under almost insurmountable odds. Their hardship and sufferings, as well as their defeats and victories, are enshrined in this memorial.134 Contrary to the dissent, P.D. No. 105135 does not apply to the LNMB. Despite the fact that P.D. No. 208 predated P.D. No. 105,136 the LNMB was not expressly included in the national shrines enumerated in the latter. 137 The proposition that the LNMB is implicitly covered in the catchall phrase "and others which may be proclaimed in the future as National Shrines" is erroneous because: chanRoblesvirtualLawlibrary(1) As stated, Marcos issued P.D. No. 208 prior to P.D. No. 105. (2) Following the canon of statutory construction known as ejusdem generis,138 the LNMB is not a site "of the birth, exile, imprisonment, detention or death of great and eminent leaders of the nation." What P.D. No. 105 contemplates are the following national shrines: Fort Santiago ("Dambana ng Kalayaan"), all battlefield areas in Corregidor and Bataan, the site of First Mass in the Philippines, Aguinaldo Shrine or Freedom Shrine, Fort San Antonio Abad National Shrine, Tirad Pass National Shrine, Ricarte Shrine, Aglipay Shrine, Liberty Shrine, "Red Beach" or the landing point of General Douglas MacArthur and the liberating forces, Dapitan City, General Leandro Locsin Fullon National Shrine, and Mabini Shrine. Excluded are the military memorials and battle monuments declared as national shrines under the PVAO, such as: Mt. Samat National Shrine, Kiangan War Memorial Shrine, Capas National Shrine, Ricarte National Shrine, Balantang Memorial Cemetery National Shrine, Balete Pass National Shrine; USAFIP, NL Military Shrine and Park, and the LNMB. (3) Since its establishment, the LNMB has been a military shrine under the jurisdiction of the PVAO. While P.D. No. 1 dated September 24, 1972 transferred the administration, maintenance and development of national shrines to the NHI under the DEC, it never actually materialized. Pending the organization of the DEC, its functions relative to national shrines were tentatively integrated into the PVAO in July 1973. Eventually, on January 26, 1977, Marcos issued P.D. No. 1076. The PVAO, through the MSS, was tasked to administer, maintain, and develop military memorials and battle monuments proclaimed as national shrines. The reasons being that "the administration, maintenance and development of national shrines consisting of military memorials or battle monuments can be more effectively accomplished if they are removed from the [DEC] and transferred to the [DND] by reason of the latter's greater capabilities and resources" and that "the functions of the [DND] are more closely related and relevant to the charter or significance of said national shrines." The foregoing interpretation is neither narrow and myopic nor downright error. Instead, it is consistent with the letter and intent of P.D. No. 105. Assuming that P.D. No. 105 is applicable, the descriptive words "sacred and hallowed" refer to the LNMB as a place and not to each and every mortal remains interred therein. Hence, the burial of Marcos at the LNMB does not diminish said cemetery as a revered and respected ground. Neither does it negate the presumed individual or collective "heroism" of the men and women buried or will be buried therein. The "nations esteem and reverence for her war dead," as originally contemplated by President Magsaysay in issuing Proclamation No. 86, still stands unaffected. That being said, the interment of Marcos, therefore, does not constitute a violation of the physical, historical, and cultural integrity of the LNMB as a national military shrine. At this juncture, reference should be made to Arlington National Cemetery (Arlington), which is identical to the LNMB in terms of its prominence in the U.S. It is not amiss to point that our armed forces have been patterned after the U.S. and that its military code produced a salutary effect in the Philippines' military justice system.139 Hence, relevant military rules, regulations, and practices of the U.S. have persuasive, if not the same, effect in this jurisdiction. As one of the U.S. Army national military cemeteries,140 the Arlington is under the jurisdiction of the Department of the Army.141 The Secretary of the U.S. Army has the responsibility to develop, operate, manage, administer, oversee, and fund the Army national military cemeteries in a manner and to standards that fully honor the service and sacrifices of the deceased members of the armed forces buried or inurned therein, and shall prescribe such regulations and policies as may be necessary to administer the cemeteries.142 In addition, the Secretary of the U.S. Army is empowered to appoint an advisory committee, which shall make periodic reports and recommendations as well as advise the Secretary with respect to the administration of the cemetery, the erection of memorials at the cemetery, and master planning for the cemetery.143chanrobleslaw Similar to the Philippines, the U.S. national cemeteries are established as national shrines in tribute to the gallant

dead who have served in the U.S. Armed Forces.144 The areas are protected, managed and administered as suitable and dignified burial grounds and as significant cultural resources. 145 As such, the authorization of activities that take place therein is limited to those that are consistent with applicable legislation and that are compatible with maintaining their solemn commemorative and historic character. 146chanrobleslaw The LNMB is considered as a national shrine for military memorials. The PVAO, which is empowered to administer, develop, and maintain military shrines, is under the supervision and control of the DND. The DND, in turn, is under the Office of the President. The presidential power of control over the Executive Branch of Government is a self-executing provision of the Constitution and does not require statutory implementation, nor may its exercise be limited, much less withdrawn, by the legislature.147 This is why President Duterte is not bound by the alleged 1992 Agreement 148 between former President Ramos and the Marcos family to have the remains of Marcos interred in Batac, Ilocos Norte. As the incumbent President, he is free to amend, revoke or rescind political agreements entered into by his predecessors, and to determine policies which he considers, based on informed judgment and presumed wisdom, will be most effective in carrying out his mandate. Moreover, under the Administrative Code, the President has the power to reserve for public use and for specific public purposes any of the lands of the public domain and that the reserved land shall remain subject to the specific public purpose indicated until otherwise provided by law or proclamation. 149 At present, there is no law or executive issuance specifically excluding the land in which the LNMB is located from the use it was originally intended by the past Presidents. The allotment of a cemetery plot at the LNMB for Marcos as a former President and Commander-in-Chief,150 a legislator,151 a Secretary of National Defense,152 a military personnel,153 a veteran,154 and a Medal of Valor awardee,155 whether recognizing his contributions or simply his status as such, satisfies the public use requirement. The disbursement of public funds to cover the expenses incidental to the burial is granted to compensate him for valuable public services rendered.156 Likewise, President Duterte's determination to have Marcos' remains interred at the LNMB was inspired by his desire for national healing and reconciliation. Presumption of regularity in the performance of official duty prevails over petitioners' highly disputed factual allegation that, in the guise of exercising a presidential prerogative, the Chief Executive is actually motivated by utang na loob (debt of gratitude) and bayad utang (payback) to the Marcoses. As the purpose is not self-evident, petitioners have the burden of proof to establish the factual basis of their claim. They failed. Even so, this Court cannot take cognizance of factual issues since We are not a trier of facts. C. AFP Regulations on the LNMB A review of the regulations issued by the AFP Chief of Staff as to who may and may not be interred at the LNMB underscores the nature and purpose of the LNMB as an active military cemetery/grave site. On May 13, 1947, the Chief of Staff of the Philippine Army, by the direction of the President and by order of the Secretary of National Defense, issued General Orders No. 111, which constituted and activated, as of said date, the Graves Registration Platoon as a unit of the Philippine Army. On February 2, 1960, the AFP Chief of Staff, by order of the Secretary of National Defense, issued AFP Regulations G 161-371 (Administrative and Special Staff Services, Grave Registration Service), which provided that the following may be interred in the LNMB: (a) World War II dead of the AFP and recognized guerillas; (b) Current dead of the AFP; (c) Retired military personnel of the AFP; (d) Remains of former members of the AFP who died while in the active service and in the Retired List of the AFP now interred at different cemeteries and other places throughout the Philippines or the Secretary of National Defense; and (e) Others upon approval of the Congress of the Philippines, the President of the Philippines or the Secretary of National Defense. The regulation also stated that the AFP Quartermaster General will be responsible for, among other matters, the efficient operation of the Graves Registration Service; the interment, disinterment and reinterment of the dead mentioned above; and preservation of military cemeteries, national cemeteries, and memorials. On July 31, 1973, the AFP Chief of Staff, by order of the Secretary of National Defense, issued AFP Regulations G 161-372 (Administration and Operation of AFP Graves Registration Installations), which superseded AFP Regulations G 161-371. It provided that the following may be interred in the LNMB: (a) Deceased Veterans of the Philippine Revolution of 1896/World War I; (b) Deceased World War II members of the AFP and recognized guerillas; (c) Deceased military personnel of the AFP who died while in the active duty; (d) Deceased retired military personnel of the AFP; (e) Deceased military personnel of the AFP interred at different cemeteries and

other places outside the LNMB; and (f) Such remains of persons as the Commander-in-Chief of the AFP may direct. The remains of the following were not allowed to be interred in the LNMB: (a) The spouse of an active, or retired, deceased military personnel, recognized guerillas who himself/herself is not a military personnel; and (b) AFP personnel who were retireable but separated/reverted/discharged for cause, or joined and aided the enemy of the Republic of the Philippines, or were convicted of capital or other criminal offenses, involving moral turpitude. The regulation also stated that the Quartermaster General shall be responsible for, among other matters, the efficient operation of the AFP graves registration installations; the interment, disinterment and reinterment of deceased military personnel mentioned above; and the preservation of military cemeteries, proper marking and official recording of graves therein. On April 9, 1986, AFP Chief of Staff Fidel V. Ramos, by order of National Defense Minister, issued AFP Regulations G 161-373 (Allocation of Cemetery Plots at the Libingan Ng Mga Bayani), which superseded AFP Regulations G 161-372. It enumerated a list of deceased person who may be interred at the LNMB, namely: (a) Medal of Valor Awardees; (b) Presidents or Commanders-in-Chief, AFP; (c) Ministers of National Defense; (d) Chiefs of Staff, AFP; (e) General/Flag Officers of the AFP; (f) Active and retired military personnel of the AFP; (g) Veterans of Philippine Revolution of 1896, WWI, WWII and recognized guerillas; and (h) Government Dignitaries, Statesmen, National Artist and other deceased persons whose interment or reinterment has been approved by the Commander-in-Chief, Batasang Pambansa or the Minister of National Defense. The regulation also stated that the Quartermaster General shall be responsible for the allocation of specific section/areas for the said deceased persons, while the Commanding Officer of the Quartermaster Graves Registration Company shall be charged with the preparation of grave sites, supervision of burials at LNMB and the registration of graves. On March 27, 1998, the AFP Chief of Staff, by order of the Secretary of National Defense, issued AFP Regulations G 161-374 (Allocation of Cemetery Plots at the Libingan Ng Mga Bayani), which superseded AFP Regulations G 161-373. It provided that the following may be interred in the LNMB: (a) Medal of Valor Awardees; (b) Presidents or Commanders-inChief, AFP; (c) Secretaries of National Defense; (d) Chiefs of Staff, AFP; (e) General/Flag Officers of the AFP; (f) Active and retired military personnel of the AFP; (g) Veterans of Philippine Revolution of 1890, WWI, WWII and recognized guerillas; (h) Government Dignitaries, Statesmen, National Artists and other deceased persons whose interment or reinterment has been approved by the Commander-in-Chief, Congress or Secretary of National Defense; and (i) Former Presidents, Secretaries of Defense, CSAFP, Generals/Flag Officers, Dignitaries, Statesmen, National Artists, widows of former Presidents, Secretaries of National Defense and Chief of Staff. The remains of the following were not allowed to be interred in the LNMB: (a) Personnel who were dishonorably separated/reverted/discharged from the service; and (b) Authorized personnel who were convicted by final judgment of an offense involving moral turpitude. Like AFP Regulations G 161-373, it stated that the Quartermaster General shall be responsible for the allocation of specific section/areas for the deceased persons, whereas the Commanding Officer of the Quartermaster Graves Registration Unit shall be charged with the preparation of grave sites, supervision of burials, and the registration of graves. Finally, on September 11, 2000, the AFP Chief of Staff, by the order of the Secretary of National Defense, issued AFP Regulations G 161-375 (Allocation of Cemetery Plots at the Libingan Ng Mga Bayani), which superseded AFP Regulations G 161-374. The regulation stated that the Chief of Staff shall be responsible for the issuance of interment directive for all active military personnel for interment, authorized personnel (such as those former members of the AFP who laterally entered or joined the Philippine Coast Guard [PCG] and the Philippine National Police [PNP]), and retirees, veterans and reservists enumerated therein. The Quartermaster General is tasked to exercise over-all supervision in the implementation of the regulation and the Commander ASCOM, PA through the Commanding Officer of Grave Services Unit is charged with the registration of the deceased/graves, the allocation of specific section/area at the LNMB for interment of deceased, the preparation of grave sites, and the supervision of burials. Under AFP Regulations G 161-375, the following are eligible for interment at the LNMB: (a) Medal of Valor Awardees; (b) Presidents or Commanders-in-Chief, AFP; (c) Secretaries of National Defense; (d) Chiefs of Staff, AFP; (e) General/Flag Officers of the AFP; (f) Active and retired military personnel of the AFP to include active draftees and trainees who died in line of duty, active reservists and CAFGU Active Auxiliary (CAA) who died in combat operations or combat related activities; (g) Former members of the AFP who laterally entered or joined the PCG and the PNP; (h) Veterans of Philippine Revolution of 1890, WWI, WWII and recognized guerillas; (i) Government Dignitaries, Statesmen, National Artists and other deceased persons whose interment or reinterment has been approved by the Commander-in-Chief, Congress or the Secretary of National Defense; and G) Former Presidents, Secretaries of Defense, Dignitaries, Statesmen, National Artists, widows of Former Presidents, Secretaries of National Defense and Chief of Staff. Similar to AFP Regulations G 161-374, the following are not

qualified to be interred in the LNMB: (a) Personnel who were dishonorably separated/reverted/discharged from the service; and (b) Authorized personnel who were convicted by final judgment of an offense involving moral turpitude. In the absence of any executive issuance or law to the contrary, the AFP Regulations G 161-375 remains to be the sole authority in determining who are entitled and disqualified to be interred at the LNMB. Interestingly, even if they were empowered to do so, former Presidents Corazon C. Aquino and Benigno Simeon C. Aquino III, who were themselves aggrieved at the Martial Law, did not revise the rules by expressly prohibiting the burial of Marcos at the LNMB. The validity of AFP Regulations G 161-375 must, therefor, be sustained for having been issued by the AFP Chief of Staff acting under the direction of the Secretary of National Defense, who is the alter ego of the President. x x x In Joson v. Torres, we explained the concept of the alter ego principle or the doctrine of qualified political agency and its limit in this wise: chanRoblesvirtualLawlibraryUnder this doctrine, which recognizes the establishment of a single executive, all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the Secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive presumptively the acts of the Chief Executive. (Emphasis ours, citation omitted.)157chanroblesvirtuallawlibrary It has been held that an administrative regulation adopted pursuant to law has the force and effect of law and, until set aside, is binding upon executive and administrative agencies, including the President as the chief executor of laws.158chanrobleslaw 1. Qualification under the AFP Regulations AFP Regulations G 161-375 should not be stricken down in the absence of clear and unmistakable showing that it has been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. Neither could it be considered ultra vires for purportedly providing incomplete, whimsical, and capricious standards for qualification for burial at the LNMB. To compare, We again refer to the U.S. Army regulations on Arlington. In the U.S., the Secretary of the Army, with the approval of the Secretary of Defense, determines eligibility for interment or inurnment in the Army national military cemeteries.159 Effective October 26, 2016, the rule160 is as follows:ChanRoblesVirtualawlibrary Only those who qualify as a primarily eligible person or a derivatively eligible person are eligible for interment in Arlington National Cemetery, unless otherwise prohibited as provided for in §§ 553.19161-553.20,162 provided that the last period of active duty of the service member or veteran ended with an honorable discharge. (a) Primarily eligible persons. The following are primarily eligible persons for purposes of interment: chanRoblesvirtualLawlibrary(1) Any service member who dies on active duty in the U.S. Armed Forces (except those service members serving on active duty for training only), if the General Courts Martial Convening Authority grants a certificate of honorable service. (2) Any veteran retired from a Reserve component who served a period of active duty (other than for training), is carried on the official retired list, and is entitled to receive military retired pay. (3) Any veteran retired from active military service and entitled to receive military retired pay. (4) Any veteran who received an honorable discharge from the Armed Forces prior to October 1, 1949, who was discharged for a permanent physical disability, who served on active duty (other than for training), and who would have been eligible for retirement under the provisions of 10 U.S.C. 1201 had the statute been in effect on the date of separation. (5) Any veteran awarded one of the following decorations:

chanRoblesvirtualLawlibrary(i) Medal of Honor;163chanrobleslaw (ii) Distinguished Service Cross, Air Force Cross, or Navy Cross; (iii) Distinguished Service Medal; (iv) Silver Star; or (v) Purple Heart. (6) Any veteran who served on active duty (other than active duty for training) and who held any of the following positions: chanRoblesvirtualLawlibrary(i) President or Vice President of the United States; (ii) Elected member of the U.S. Congress; (iii) Chief Justice of the Supreme Court of the United States or Associate Justice of the Supreme Court of the United States; (iv) A position listed, at the time the person held the position, in 5 U.S.C. 5312 164 or 5313165 (Levels I and II of the Executive Schedule); or (v) Chief of Mission of a Category 4, 5, or post if the Department of State classified that post as a Category 4, 5, or 5+ post during the person's tenure as Chief of Mission. (7) Any former prisoner of war who, while a prisoner of war, served honorably in the active military service, and who died on or after November 30, 1993. (b) Derivatively eligible persons. The following individuals are derivatively eligible persons for purposes of interment who may be interred if space is available in the gravesite of the primarily eligible person: chanRoblesvirtualLawlibrary(1) The spouse of a primarily eligible person who is or will be interred in Arlington National Cemetery. A former spouse of a primarily eligible person is not eligible for interment in Arlington National Cemetery under this paragraph. (2) The spouse of an active duty service member or an eligible veteran, who was: chanRoblesvirtualLawlibrary(i) Lost or buried at sea, temporarily interred overseas due to action by the Government, or officially determined to be missing in action; (ii) Buried in a U.S. military cemetery maintained by the American Battle Monuments Commission; or (iii) Interred in Arlington National Cemetery as part of a group burial (the derivatively eligible spouse may not be buried in the group burial gravesite). (3) The parents of a minor child or a permanently dependent adult child, whose remains were interred in Arlington National Cemetery based on the eligibility of a parent at the time of the child's death, unless eligibility of the nonservice connected parent is lost through divorce from the primarily eligible parent. (4) An honorably discharged veteran who does not qualify as a primarily eligible person, if the veteran will be buried in the same gravesite as an already interred primarily eligible person who is a close relative, where the interment meets the following conditions: chanRoblesvirtualLawlibrary(i) The veteran is without minor or unmarried adult dependent children; (ii) The veteran will not occupy space reserved for the spouse, a minor child, or a permanently dependent adult child;

(iii) All other close relatives of the primarily eligible person concur with the interment of the veteran with the primarily eligible person by signing a notarized statement; (iv) The veteran's spouse waives any entitlement to interment in Arlington National Cemetery, where such entitlement might be based on the veteran's interment in Arlington National Cemetery. The Executive Director may set aside the spouse's waiver, provided space is available in the same gravesite, and all close relatives of the primarily eligible person concur; (v) Any cost of moving, recasketing, or revaulting the remains will be paid from private funds. There is a separate list of eligible with respect to the inurnment of cremated remains in the Columbarium,166 interment of cremated remains in the Unmarked Area,167 and group burial.168 As a national military cemetery, eligibility standards for interment, inurnment, or memorialization in Arlington are based on honorable military service.169 Exceptions to the eligibility standards for new graves, which are rarely granted, are for those persons who have made significant contributions that directly and substantially benefited the U.S. military.170chanrobleslaw Judging from the foregoing, it is glaring that the U.S. Army regulations on Arlington and the AFP Regulations G 161-375 on the LNMB, as a general rule, recognize and reward the military services or military related activities of the deceased. Compared with the latter, however, the former is actually less generous in granting the privilege of interment since only the spouse or parent, under certain conditions, may be allowed "if space is available in the gravesite of the primarily eligible person." It is not contrary to the "well-established custom," as the dissent described it, to argue that the word "bayani" in the LNMB has become a misnomer since while a symbolism of heroism may attach to the LNMB as a national shrine for military memorial, the same does not automatically attach to its feature as a military cemetery and to those who were already laid or will be laid therein. As stated, the purpose of the LNMB, both from the legal and historical perspectives, has neither been to confer to the people buried there the title of "hero" nor to require that only those interred therein should be treated as a "hero." In fact, the privilege of internment at the LNMB has been loosen up through the years. Since 1986, the list of eligible includes not only those who rendered active military service or military-related activities but also non-military personnel who were recognized for their significant contributions to the Philippine society (such as government dignitaries, statesmen, national artists, and other deceased persons whose interment or reinterment has been approved by the Commander-in-Chief, Congress or Secretary of National Defense). In 1998, the widows of former Presidents, Secretaries of National Defense and Chief of Staff were added to the list. Whether or not the extension of burial privilege to civilians is unwarranted and should be restricted in order to be consistent with the original purpose of the LNMB is immaterial and irrelevant to the issue at bar since it is indubitable that Marcos had rendered significant active military service and military-related activities. Petitioners did not dispute that Marcos was a former President and Commander-in-Chief, a legislator, a Secretary of National Defense, a military personnel, a veteran, and a Medal of Valor awardee. For his alleged human rights abuses and corrupt practices, we may disregard Marcos as a President and Commander-in-Chief, but we cannot deny him the right to be acknowledged based on the other positions he held or the awards he received. In this sense, We agree with the proposition that Marcos should be viewed and judged in his totality as a person. While he was not all good, he was not pure evil either. Certainly, just a human who erred like us. Our laws give high regard to Marcos as a Medal of Valor awardee and a veteran. R.A. No. 9049 171 declares the policy of the State "to consistently honor its military heroes in order to strengthen the patriotic spirit and nationalist consciousness of the military."172 For the "supreme self-sacrifice and distinctive acts of heroism and gallantry,"173 a Medal of Valor awardee or his/her dependents/heirs/beneficiaries are entitled to the following social services and financial rewards: 1. Tax-exempt lifetime monthly gratuity of Twenty Thousand Pesos (P20,000.00), which is separate and distinct from any salary or pension that the awardee currently receives or will receive from the government of the Philippines;174chanrobleslaw 2. Precedence in employment in government agencies or government-owned or controlled corporation, if the job qualifications or requirements are met;

3. Priority in the approval of the awardee's housing application under existing housing programs of the government; 4. Priority in the acquisition of public lands under the Public Land Act and preferential right in the lease of pasture lands and exploitation of natural resources; 5. Privilege of obtaining loans in an aggregate amount not exceeding Five Hundred Thousand Pesos (P500,000.00) from governmentowned or controlled financial institutions without having to put up any collateral or constitute any pledge or mortgage to secure the payment of the loan; 6. Twenty (20%) percent discount from all establishments relative to utilization of transportation services, hotels and similar lodging establishments, restaurants, recreation and sport centers and purchase of medicine anywhere in the country; 7. Twenty (20%) percent discount on admission fees charged by theaters, cinema houses and concert halls, circuses, carnivals and other similar places of culture, leisure and amusement; 8. Free medical and dental services and consultation in hospital and clinics anywhere in the country; 9. Exemption from the payment of tuition and matriculation fees in public or private schools, universities, colleges and other educational institutions in any pre-school, baccalaureate or post graduate courses such as or including course leading to the degree of Doctor of Medicine (MD), Bachelor of Laws (LLB), and Bachelor of Science in Nursing (BSN) or allied and similar courses; and cralawlawlibrary 10. If interested and qualified, a quota is given to join the cadet corps of the Philippine Military Academy or otherwise priority for direct commission, call to active duty (CAD) and/or enlistment in regular force of the AFP. On the other hand, in recognizing their patriotic services in times of war and peace for the cause of freedom and democracy; for the attainment of national unity, independence, and socioeconomic advancement; and for the maintenance of peace and order,175 R.A. No. 6948, as amended,176 grants our veterans177 and their dependents or survivors with pension (old age, disability, total administrative disability, and death) and non-pension (burial, education, hospitalization, and medical care and treatment) benefits as well as provisions from the local governments. Under the law, the benefits may be withheld if the Commission on Human Rights certifies to the AFP General Headquarters that the veteran has been found guilty by final judgment of a gross human rights violation while in the service, but this factor shall not be considered taken against his next of kin.178chanrobleslaw 2. Disqualification under the AFP Regulations Aside from being eligible for burial at the LNMB, Marcos possessed none of the disqualifications stated in AFP Regulations G 161-375. He was neither convicted by final judgment of the offense involving moral turpitude nor dishonorably separated/reverted/discharged from active military service. Petitioners, however, protest that a narrow interpretation of the AFP regulations disregards historical context and the rule on statutory construction. They urge the Court to construe statutes not literally but according to their spirit and reason. It is argued that Marcos committed offenses involving moral turpitude for his gross human rights violations, massive graft and corruption, and dubious military records, as found by foreign and local courts as well as administrative agencies. By going into exile, he deliberately evaded liability for his actions. And by allowing death to overtake him, he inevitably escaped the prospect of facing accountability for his crimes. They also contend that his removal in the 1986 popular uprising is a clear sign of his discharge from the AFP. The People Power Revolution was the direct exercise of the Filipinos' power to overthrow an illegitimate and oppressive regime. As a sovereign act, it necessarily includes the power to adjudge him as dishonorably discharged from the AFP. Furthermore, according to petitioners, to limit the application of the disqualifying provisions of AFP Regulations G 161-375 only to soldiers would be unfair (since, unlike Presidents, soldiers have an additional cause for

disqualification) and lead to absurd results (because soldiers who were dishonorably discharged would be disqualified for acts that are less atrocious than that committed by Marcos). Also, the AFP regulations would place Marcos in the same class as the other Philippine Presidents when in fact he is a class of his own, sui generis. The other Presidents were never removed by People Power Revolution and were never subject of laws declaring them to have committed human rights violations. Thus, the intended burial would be an act of similarly treating persons who are differently situated. Despite all these ostensibly persuasive arguments, the fact remains that Marcos was not convicted by final judgment of any offense involving moral turpitude. No less than the 1987 Constitution mandates that a person shall not be held to answer for a criminal offense without due process of law and that, "[i]n all criminal prosecutions, the accused shall be presum innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf."179 Even the U.N. principles on reparation and to combat impunity cited by petitioners unequivocally guarantee the rights of the accused, providing that:ChanRoblesVirtualawlibrary XIII. Rights of others 27. Nothing in this document is to be construed as derogating from internationally or nationally protected rights of others, in particular the right of an accused person to benefit from applicable standards of due process. xxx PRINCIPLE 9. GUARANTEES FOR PERSONS IMPLICATED Before a commission identifies perpetrators in its report, the individuals concerned shall be entitled to the following guarantees: chanRoblesvirtualLawlibrary(a) The commission must try to corroborate information implicating individuals before they are named publicly; (b) The individuals implicated shall be afforded an opportunity to provide a statement setting forth their version of the facts either at a hearing convened by the commission while conducting its investigation or through submission of a document equivalent to a right of reply for inclusion in the commission's file. To note, in the U.S., a person found to have committed a Federal or State capital crime (i.e., a crime which a sentence of imprisonment for life or death penalty may be imposed) but who has not been convicted by reason of not being available for trial due to death or flight to avoid prosecution, may be ineligible for interment, inurnment, or memorialization in an Army national military cemetery. Nevertheless, such ineligibility must still observe the procedures specified in § 553.21.180chanrobleslaw The various cases cited by petitiOners, which were decided with finality by courts here and abroad, have no bearing in this case since they are merely civil in nature; hence, cannot and do not establish moral turpitude. Also, the equal protection clause is not violated. Generally, there is no property right to safeguard because even if one is eligible to be buried at the LNMB, such fact would only give him or her the privilege to be interred therein. Unless there is a favorable recommendation from the Commander-in-Chief, the Congress or the Secretary of National Defense, no right can be said to have ripen. Until then, such inchoate right is not legally demandable and enforceable. Assuming that there is a property right to protect, the requisites of equal protection clause are not met. 181 In this case, there is a real and substantial distinction between a military personnel and a former President. The conditions of dishonorable discharge under the Articles of War 182 attach only to the members of the military. There is also no substantial distinction between Marcos and the three Philippine Presidents buried at the LNMB (Presidents Quirino, Garcia, and Macapagal). All of them were not convicted of a crime involving moral turpitude. In addition, the classification between a military personnel and a former President is germane to the purposes of Proclamation No. 208 and P.D. No. 1076. While the LNMB is a national shrine for militarymemorials, it is also an active military cemetery that recognizes the status or position held by the persons interred therein. Likewise, Marcos was honorably discharged from military service. PVAO expressly recognized him as a retired

veteran pursuant to R.A. No. 6948, as amended. Petitioners have not shown that he was dishonorably discharged from military service under AFP Circular 17, Series of 1987 (Administrative Discharge Prior to Expiration of Term of Enlistment) for violating Articles 94, 95 and 97 of the Articles of War. 183 The NHCP study184 is incomplete with respect to his entire military career as it failed to cite and include the official records of the AFP. With respect to the phrase "[p]ersonnel who were dishonorably separated/reverted/discharged from the service," the same should be viewed in light of the definition provided by AFP Regulations G 161-375 to the term "active service" which is "[s]ervice rendered by a military person as a Commissioned Officer, enlisted man/woman, probationary officer, trainee or draftee in the Armed Forces of the Philippines and service rendered by him/her as a civilian official or employee in the Philippine Government prior to the date of his/her separation or retirement from the Armed Forces of the Philippines, for which military and/or civilian service he/she shall have received pay from the Philippine Government, and/or such others as may be hereafter be prescribed by law as active service (PD 1638, as amended)."185 To my mind, the word "service" should be construed as that rendered by a military person in the AFP, including civil service, from the time of his/her commission, enlistment, probation, training or drafting, up to the date of his/her separation or retirement from the AFP. Civil service after honorable separation and retirement from the AFP is outside the context of "service" under AFP Regulations G 161-375. Hence, it cannot be conveniently claimed that Marcos' ouster from the presidency during the EDSA Revolution is tantamount to his dishonorable separation, reversion or discharge from the military service. The fact that the President is the Commander-in-Chief of the AFP under the 1987 Constitution only enshrines the principle of supremacy of civilian authority over the military. Not being a military person who may be prosecuted before the court martial, the President can hardly be deemed "dishonorably separated/reverted/discharged from the service" as contemplated by AFP Regulations G 161-375. Dishonorable discharge through a successful revolution is an extra-constitutional and direct sovereign act of the people which is beyond the ambit of judicial review, let alone a mere administrative regulation. It is undeniable that former President Marcos was forced out of office by the people through the so-called EDSA Revolution. Said political act of the people should not be automatically given a particular legal meaning other than its obvious consequence- that of ousting him as president. To do otherwise would lead the Court to the treacherous and perilous path of having to make choices from multifarious inferences or theories arising from the various acts of the people. It is not the function of the Court, for instance, to divine the exact implications or significance of the number of votes obtained in elections, or the message from the number of participants in public assemblies. If the Court is not to fall into the pitfalls of getting embroiled in political and oftentimes emotional, if not acrimonious, debates, it must remain steadfast in abiding by its recognized guiding stars - clear constitutional and legal rules - not by the uncertain, ambiguous and confusing messages from the actions of the people. Conclusion In sum, there is no clear constitutional or legal basis to hold that there was a grave abuse of discretion amounting to lack or excess of jurisdiction which would justify the Court to interpose its authority to check and override an act entrusted to the judgment of another branch. Truly, the President's discretion is not totally unfettered. "Discretion is not a freespirited stallion that runs and roams wherever it pleases but is reined in to keep it from straying. In its classic formulation, 'discretion is not unconfined and vagrant' but 'canalized within banks that keep it from overflowing.'"186 At bar, President Duterte, through the public respondents, acted within the bounds of the law and jurisprudence. Notwithstanding the call of human rights advocates, the Court must uphold what is legal and just. And that is not to deny Marcos of his rightful place at the LNMB. For even the Framers of our Constitution intend that full respect for human rights is available at any stage of a person's development, from the time he or she becomes a person to the time he or she leaves this earth.187chanrobleslaw There are certain things that are better left for history - not this Court - to adjudge. The Court could only do so much in accordance with the clearly established rules and principles. Beyond that, it is ultimately for the people themselves, as the sovereign, to decide, a task that may require the better perspective that the passage of time provides. In the meantime, the country must mov'e on and let this issue rest. WHEREFORE, PREMISES CONSIDERED, the petitions are DISMISSED. Necessarily, the Status Quo Ante Order is hereby LIFTED.

March 5, 2018 G.R. No. 202206 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee vs. TENG MONER y ADAM, Accused-Appellant DECISION LEONARDO-DE CASTRO, J.: This is an appeal of the Decision1 dated July 27, 2011 of the Court of Appeals in CA-G.R. CR-H.C. No. 04399 entitled, People of the Philippines v. Teng Manery Adam, which affirmed the Joint Decision2 dated August 4, 2009 of the Regional Trial Court (RTC) of Quezon City, Branch 95 in Criminal Case Nos. Q-05-133982 and Q-05133983. Anent Criminal Case No. Q-05-133982, the trial court found appellant Teng Moner y Adam (Moner) guilty beyond reasonable doubt of violating Section 5, Article II (sale of dangerous drugs) of Republic Act No. 9165 otherwise known as the Comprehensive Dangerous Drugs Act of 2002. In the same judgment, Moner and his coaccused were acquitted of the charge of violating Section 11, Article II (possession of dangerous drugs) of the same statute which was the subject of Criminal Case No. Q-05-133983. The crime of which Moner was convicted is described in the Information dated April 25, 2005, as follows: That on or about the 23rd day of April, 2005, in Quezon City, Philippines, the said accused, not being authorized by law to sell, dispense, deliver, transport or distribute any dangerous drug, did then and there, willfully and unlawfully sell, dispense, deliver, transport, distribute or act as broker in the said transaction, three point ninetyone (3.91) grams of methylamphetamine hydrochloride, a dangerous drug.3 Subsequently, on May 16, 2005, Moner pleaded "NOT GUILTY" to the aforementioned charge of illegal sale of dangerous drugs upon his arraignment.4 In its assailed Decision, the Court of Appeals presented the factual milieu of this case in this manner: To establish the guilt of accused-appellant, the prosecution presented three (3) witnesses namely: P02 Joachim Panopio, P03 Junnifer Tuldanes and PO3 Edwin Lirio. The prosecution's evidence tends to establish the following facts: On April 23, 2005, the police operatives of Las Piñas Police Station Anti-Illegal Drugs Special Operation Task Force (SAIDSOTF) had arrested a certain Joel Taudil for possession of illegal drugs. Upon investigation, they gathered from Taudil that the source of the illegal drugs was Teng Moner (herein accused-appellant) who hails from Tandang Sora, Quezon City. As per this information, Police Chief Inspector Jonathan Cabal formed a team that would conduct a buy-bust operation for the apprehension of accused-appellant. The team was composed of himself, SP04 Arnold Alabastro, SPO1 Warlie Hermo, PO3 Junnifer Tuldanes, PO3 Edwin Lirio, PO2 Rodel Ordinaryo, PO1 Erwin Sabbun and PO2 Joachim Panopio. The marked and boodle money were given to PO2 Panopio who acted as the poseurbuyer. Before proceeding with the buy-bust operation, the team prepared the pre-operation report addressed to the Philippine Drug Enforcement Agency (PDEA), the authority to operate outside their jurisdiction and the coordination paper. Thereafter, they proceeded to the Central Police District Office (CPDO), Camp Karingal, Quezon City for proper coordination. Thereafter, the team together with Taudil and a CPD-DIID personnel proceeded [to] No. 26 Varsity Lane, Barangay Culiat, Tandang Sora, Quezon City. Upon reaching the place they made a surveillance and assumed their respective positions.

At the target area, P02 Panopio and Taudil went to accusedappellant's house. While outside the gate, Taudil summoned accusedappellant and the latter came out after a few minutes. The two men talked with each other in the Muslim dialect. Taudil introduced PO2 Panopio as his friend to accused-appellant and told him that PO2 Panopio was interested to buy shabu. PO2 Panopio asked for the price of five (5) grams of shabu. Accusedappellant replied that the same would cost him ₱8,000.00 and asked him if he has the money. When PO2 Panopio confirmed that he has the money with him, accused-appellant asked them to wait and he went inside the house. When he returned after a few minutes, he handed a plastic sachet containing a substance suspected as shabu to PO2 Panopio who in turn gave him the marked and boodle money. Accused-appellant was about to count the money when PO2 Panopio gave the pre-arranged signal to his team and introduced himself as [a] police officer. Accused-appellant resisted arrest and ran inside the house but PO2 Panopio was able to catch up with him. The other members of the team proceeded inside the house and they saw the other accused gather[ed] around a table re-packing shabu. PO3 Lirio confiscated the items from them and placed the same inside a plastic bag. After accused-appellant and his co-accused were arrested, the team proceeded to the Las Piñas City Police Station. The items confiscated from them were turned over by PO2 Panopio to PO3 Dalagdagan who marked them in the presence of the police operatives, accused-appellant and his co-accused. PO3 Dalagdagan prepared the corresponding inventory of the confiscated items. The specimens were then brought to the police crime laboratory for testing. The specimens yielded positive to the test for methylamphetamine hydrochloride or shabu. Consequently, a case for Violation of Section 5, Article II of R.A. 9165 was filed against accused-appellant and another for Violation of Section 11, Article II of R.A. 9165 against him and his co-accused. In refutation of the prosecution's version, the defense presented four (4) witnesses, to wit: Judie Durado, Fatima Macabangen, accused-appellant and Richard Pascual. It is the contention of the defense that on April 23, 2005, accused-appellant and his co-accused in Criminal Case No. Q-05-133983 were at the house located along No. 26 Varsity Lane, Philam, Tan.dang Sora, Quezon City to prepare for the wedding of Fatima Macabangen and Abubakar Usman to be held the following day. While they were inside the house, several armed persons wearing civilian clothes entered and announced that they were police officers. They searched the whole house and gathered all of them in the living room. The police officer who was positioned behind accused-appellant and Abubakar dropped a plastic sachet. The former asked accused-appellant and Abubakar who owns the plastic sachet. When accused-appellant .denied its ownership, the police officer slapped him and accused him of being a liar. Thereafter, they were all frisked and handcuffed and were brought outside the house. Their personal effects and belongings were confiscated by the police officers. Then they boarded a jeepney and were brought to [the] Las Piñas Police Station. Upon their arrival, they were investigated. A police officer asked them to call up anybody who can help them because they only needed money for their release. Judie Dorado called up [his] mother. They saw the other items allegedly confiscated from them only at the police station. At around 10:00 o'clock in the evening, they were brought to Camp Crame, Quezon City. From there, they went to Makati for drug testing and were returned to Las Piñas Police Station. Subsequently, cases for Violation of R.A. No. 9165 were filed against them.5 After receiving the evidence for both sides, the trial court convicted Moner on the charge of selling shabu while, at the same time, acquitting him and his co-accused of the charge of possession of illegal drugs. The dispositive portion of the August 4, 2009 Joint Decision of the trial court reads: WHEREFORE, the Court renders its Joint Decision as follows: 1. In Criminal Case No. Q-05-133982:

The Court finds accused TENG MONER Y ADAM "GUILTY" beyond reasonable doubt for violation of Section 5, Article II of R.A. 9165 or illegal selling of three point ninety-one (3.91) grams of methylamphetamine hydrochloride, a dangerous drug and he is hereby sentenced to suffer the penalty of LIFE IMPRISONMENT and to pay a FINE of FIVE HUNDRED THOUSAND PESOS (Php500,000.00). 2. In Criminal Case No. Q-05-133983: The Court finds accused TENG MONER Y ADAM, JUDIE DURADO Y MACABANGEN, FATIMA MACABANGEN Y NUÑEZ, ABUBAKAR USMAN Y MASTORA, GUIAMIL ABU Y JUANITEZ, NORODIN USMAN Y MASTORA, RICHARD PASCUAL Y TANGALIN and AMINA USMAN-MONER "NOT GUILTY" for violation of Section 11, Art. II of R.A. 9165 considering that the prosecution failed to prove their guilt beyond reasonable doubt. The pieces of evidence subject matter of Crim. Case No. Q-05- 133983 are hereby ordered to be safely delivered to the Philippine Drug Enforcement Agency for proper disposition.6 As can be expected, Moner elevated his case to the Court of Appeals which, unfortunately for him, ruled to affirm the findings of the trial court and dispositively held: WHEREFORE, the appealed Decision dated August 4, 2009 of the Regional Trial Court, Branch 95, Quezon City in Criminal Case No. Q-05- 133982 finding accused-appellant guilty beyond reasonable doubt is hereby AFFIRMED.7 Hence, Moner interposes this appeal wherein he reiterates the same errors on the part of the trial court contained in his Brief filed with the Court of Appeals, to wit: A. THE COURT A QUO SERIOUSLY ERRED WHEN IT ISSUED ITS DECISION DATED AUGUST 4, 2009 FINDING THE ACCUSEDAPPELLANT MONER GUILTY BEYOND REASONABLE DOUBT OF VIOLATING SECTION 5, ARTICLE II OF R.A. 9165, WHEN THE TESTIMONIES OF THE THREE (3) PROSECUTION WITNESSES (P02 JOACHIM P ANOPIO, P03 JUNNIFER TULDANES, AND P03 EDWIN LIRIO) ARE HIGHLY INCREDIBLE AND UNBELIEVABLE TO PROVE THE ALLEGED BUYBUST. B. THE COURT A QUO SERIOUSLY ERRED IN ITS DECISION WHEN IT RELIED SOLELY ON THE PERJURED TESTIMONIES OF THE PROSECUTION WITNESSES POLICE OFFICERS WHICH ARE FULL OF INCONSISTENCIES. C. THE COURT A QUO SERIOUSLY ERRED IN ISSUING THE ASSAILED DECISION WHEN IT FAILED TO GIVE CREDENCE TO THE TESTIMONIES OF THE DEFENSE WITNESSES WHO CLEARLY TESTIFIED THAT THERE WAS REALLY NO BUY-BUST AND THAT APPELLANT MONER WAS NOT SELLING ANY PROHIBITED DRUGS. D. THE COURT SERIOUSLY ERRED WHEN IT ISSUED THE ASSAILED DECISION DESPITE THE FACT THAT THE PROSECUTION WITNESSES FAILED TO COMPLY WITH THE MANDATORY PROVISION OF SEC. 19 OF R.A. NO. 9165, ON THE MATTER OF PHYSICAL INVENTORY, AND PICTURE TAKING OF THE EVIDENCE ALLEGEDLY SEIZED FROM THE ACCUSED, AS WELL AS THE PROVISION OF SECTION 86 THEREOF.8 In sum, Moner maintains that the prosecution failed to discharge its burden of proof to sustain his conviction for the charge of sale of dangerous drugs. He highlights the fact that the prosecution failed to present in court the informant who pointed to him as a supplier of shabu. He also stresses that the buy-bust operation was conducted without proper coordination with the Philippine Drug Enforcement Agency (PDEA). Likewise, he derides the testimonies of the prosecution witnesses as inconsistent, incredible and unworthy of belief. Most importantly, he underscores the failure of the arresting officers to comply with the statutorily mandated procedure for the handling and custody of the dangerous drugs allegedly seized from him. The appeal is without merit.

For a successful prosecution of an offense of illegal sale of dangerous drugs, the following essential elements must be proven: (1) that the transaction or ·sale took place; (2) that the corpus delicti or the illicit drug was presented as evidence; and (3) that the buyer and seller were identified.9 A perusal of the records of this case would reveal that the aforementioned elements were established by the prosecution. The illegal drugs and the marked money were presented and identified in court. More importantly, Police Officer (PO) 2 Joachim Panopio (PO2 Panopio ), who acted as poseur-buyer, positively identified Moner as the seller of the shabu to him for a consideration of ₱8,000.00. With regard to Moner's contention that the prosecution's failure to present the informant in court diminishes the case against him, we reiterate our pronouncement on this matter in the recent case of People v. Lafaran10 : It has oft been held that the presentation of an informant as witness is not regarded as indispensable to the success of a prosecution of a drug-dealing accused. As a rule, the informant is not presented in court for security reasons, in view of the need to protect the informant from the retaliation of the culprit arrested through his efforts. Thereby, the confidentiality of the informant's identity is protected in deference to his invaluable services to law enforcement. Only when the testimony of the informant is considered absolutely essential in obtaining the conviction of the culprit should the need to protect his security be disregarded. In the present case, as the buybust operation was duly witnessed by SPO2 Aro and PO3 Pera, their testimonies can take the place of that of the poseur-buyer. Thus, we concur with the appellate court's finding that there is no need to present the informant because PO2 Panopio, who acted as the poseur-buyer, had testified in court. Furthermore, the other members of the buy-bust team, namely PO3 Junnifer Tuldanes (PO3 Tuldanes) and PO3 Edwin Lirio (PO3 Lirio ), gave clear and credible testimonies with regard to the criminal transaction that was consummated by appellant and PO2 Panopio. In addition, we rule that inconsistencies in the testimonies of the prosecution witnesses that were pointed out by Moner consist merely of minor variances that do not deviate from the main narrative which is the fact that Moner sold illegal drugs to a poseur-buyer. It has been held, time and again, that minor inconsistencies and contradictions in the declarations of witnesses do not destroy the witnesses' credibility but even enhance their truthfulness as they erase any suspicion of a rehearsed testimony.11 It bears stressing, too, that the determination by the trial court of the credibility of witnesses, when affirmed by the appellate court, is accorded full weight and credit as well as great respect, if not conclusive effect.12 Lastly, we can give no credence to Moner's contention that the prosecution failed to prove an unbroken chain of custody in consonance with the requirements of law. To ensure that the drug specimen presented in court as evidence against the accused is the same material seized from him or that, at the very least, a dangerous drug was actually taken from his possession, we have adopted the chain of custody rule. The Dangerous Drugs Board (DDB) has expressly defined chain of custody involving dangerous drugs and other substances in the following terms in Section 1 (b) of DDB Regulation No. 1, Series of 2002: b. "Chain of Custody" means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and use in court as evidence, and the final disposition[.] In relation to this, Section 21 of Republic Act No. 9165 pertinently provides the following: SECTION 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. - The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof[.] Furthermore, Section 21(a) of the Implementing Rules and Regulations (IRR) of Republic Act No. 9165 relevantly states: SECTION 21. Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. - The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that noncompliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items[.] (Emphasis supplied.) We have consistently ruled that noncompliance with the requirements of Section 21 of Republic Act No. 9165 will not necessarily render the illegal drugs seized or confiscated in a buy-bust operation inadmissible. Strict compliance with the letter of Section 21 is not required if there is a clear showing that the integrity and evidentiary value of the seized illegal drugs have been preserved, i.e., the illegal drugs being offered in court as evidence is, without a specter of doubt, the very same item recovered in the buy-bust operation.13 With regard to the foregoing, Moner asserts that he should be acquitted of the criminal charges levelled against him specifically because of the following serious lapses in procedure committed by the apprehending officers: (a) the physical inventory was not conducted at the place where the seizure was made; (b) the seized item was not photographed at the place of seizure; and (c) there was no physical inventory and photograph of the seized item in the presence of the accused, or his representative or counsel, with an elected public official and a representative of the National Prosecution Service or the media who shall be required to sign the copies of the inventory and be given a copy thereof. The aforementioned concerns can be squarely addressed by a careful and assiduous review of the records of this case accompanied by a liberal application and understanding of relevant jurisprudence in support thereof. Both object and testimonial evidence demonstrate that the apprehending officers were able to mark the dangerous drugs seized and to prepare a physical inventory of the same at the Las Piñas Police Station which was the place where Moner and his co-accused were brought for processing. The following excerpts lifted from the transcript of the testimony of PO2 Panopio during trial confirm this fact: Q Now, Mr. Witness, after your team recovered [the] evidence on top of the table inside the house, arrested those persons whom you identified a while ago and also arrested Teng Moner recovered from him the buy-bust money, what happened next? A We brought them to the police headquarters. Q In what headquarters did you bring the persons arrested? A We brought them to Special Action ... SAID-SOTF Las Piñas Police Station.

xxxx Q Now, I would like to inform you that under Section 21 of the Republic Act 9165, the arresting officer immediately after the arrest of the accused or the person buy-bust for possession must prepare the inventory of seized evidence. A Yes, sir. Q What do you mean by "yes"? A We did prepare an inventory, sir. Q So, you are aware of that provision? A I just forgot the Section 21, sir. COURT: (to the witness) Q You do not know that doing an inventory is a requirement under Section 21? A Yes, your Honor. PROS.: (to the witness) Q Now, you said that you are aware of Section 21 an inventory must be made. Do you know whether your team complied with that provision of the law upon reaching the station? A Yes, sir, Q What do you mean by "yes"? A We made an Inventory Report, sir. Q Where is now that Inventory Report? A It's with the documents I submitted earlier in court, sir. xxxx PROS: (to the Court) This piece of document handed by the witness your Honor, the Inventory of Property Seized be marked as Exhibit "OOO". COURT: (to the witness) Q That is the original, Mr. Witness? A Yes, your Honor. xxxx PROS.: (to the Court)

Q The signature of PO3 Rufino G. Dalagdagan under the heading "Received By:" be bracketed and be marked as Exhibit "OOO-1"; the list of the articles appearing [in] the body of Exhibit "OOO" be bracketed and be marked as Exhibit "OOO-2". This Receipt of Property Turned-Over, your Honor, which states: "I, P03 RUFINO G. DALAGDAGAN OF SAID-SOTF, LAS PINAS CITY POLICE STATION, SPD hereby acknowledge received (sic) the items/articles listed hereunder [from] PO2 JOACHIM P. PANOPIO" and may we request, your honor that letters appearing on the top of the name TENG MONER ADAM, ET AL. (RTS) be marked as Exhibit "OOO-3" PROS.: (to the witness) Q Who prepared this Exhibit "OOO"? A PO3 Rufino Dalagdagan, sir. Q These items listed [in] the body of marked as Exhibit "OOO", who made these items? A I, myself, sir. Q Now, showing to you this Exhibit marked as "OOO-3" particularly on [the] letters RPS appearing inside the parenthesis, who placed that entry (RPS)? A Police Officer Dalagdagan, sir. Q Where were you at the time when this (RPS) marked as Exhibit "OOO-3" was made? A I was inside the office, sir. Q Where were those persons whom your team arrested when this evidence marked as Exhibit "OOO" was made? A They were also inside the office, sir. xxxx Q You said a while ago that in consideration with the buy-bust money, you received from the accused, Teng Moner, that plastic sachet containing shabu. Upon reaching the station, what happened to the plastic sachet, subject matter of the buy-bust operation? A I turned it over, sir. Q To whom? A PO3 Dalagdagan, sir. Q And before you turned it over to the investigator, PO3 Dalagdagan, that shabu subject matter of the buy-bust operation, what did you do with it? A He placed [the] markings on it, sir. Q Showing to you several pieces of evidence placed inside the brown envelope. Kindly look at the same and pick from these several items that plastic sachet, subject matter of the buy-bust operation? A (Witness picked from the bunch of evidence the plastic sachet which already marked as Exhibit "P" and he read [the] markings "TMAU1-23APR05".)

Q Now, you also stated a while ago that you were the one who personally recovered the buy-bust money used in the operation from the possession of the accused, Teng Moner. If the same would be shown to you, would you be able to identify it? A Yes, sir. xxxx Q Now, you also stated that the Request for Laboratory Examination was made by the investigator, Now, who delivered the plastic sachet subject matter of the buy-bust operation for laboratory examination? A We did, sir.14 (Emphases supplied.) Judging from the cited testimony, it is apparent that the apprehending officers were able to substantially comply with the requirements of the law regarding the custody of confiscated or seized dangerous drugs. When crossexamined by the defense counsel during trial about the reason behind the buy-bust team's noncompliance with standard procedure, PO3 Tuldanes, one of the apprehending officers, gave the following response: ATTY. PALAD: (to witness) Q Meaning you had no time to make the inventory right at the scene of the alleged buy-bust? A Yes, sir, because we were immediately instructed to pull out from the area. Q Was there any threat on your lives that you immediately pulled out from the said area? A It was not our area - Area of Responsibility - so we just wanted to make sure, for security and immediately left, sir. Q So this fear for security, you did not follow this photographing/inventory? A We did not do that anymore, sir, because our security was at risk.15 Verily, the circumstances that the buy-bust team proceeded first to the Central Police District (CPD) Station, Camp Karingal in Quezon City and, from there, they were accompanied by a police officer from the CPD to the target location, aside from proving that it was a legitimate police operation, supported the existence of a security risk to the buy-bust team. These additional precautions taken by the buy-bust team underscored their unfamiliarity with the location of the operation and, in fact, corroborated the above-quoted testimony that the buy-bust team believed there was a threat to their security. With regard to the accused’s allegation that the buy-bust team failed to coordinate with the PDEA before proceeding with the operation that nabbed Moner, both the trial court and the Court of Appeals declare in unison that the requisite prior coordination with PDEA did happen. Likewise, our own review did not provide any reason for us to disbelieve said established fact. To reiterate, noncompliance with the chain of custody rule is excusable as long as there exist justifiable grounds which prevented those tasked to follow the same from strictly conforming to the said directive. The preceding discussion clearly show that the apprehending officers in this case did not totally disregard prescribed procedure but, instead, demonstrated substantial compliance with what was required. It was likewise explained that the divergence in procedure was not arbitrary or whimsical but because the buy-bust team decided that they could not linger at the crime scene as it would unduly expose them to security risks since they were outside their area of responsibility. Notably, in the recent case of Palo v. People, 16 we affirmed a conviction for illegal possession of dangerous drugs despite the fact that the seized illegal substance was only marked at the police station and that there was no physical inventory or photograph of the same:

The fact that the apprehending officer marked the plastic sachet at the police station, and not at the place of seizure, did not compromise the integrity of the seized item. Jurisprudence has declared that "marking upon immediate confiscation" contemplates even marking done at the nearest police station or office of the apprehending team. Neither does the absence of a physical inventory nor the lack of photograph of the confiscated item renders the same inadmissible. What is of utmost importance is the preservation of the integrity and evidentiary value of the seized items as these would be used in determining the guilt or innocence of the accused.17 With regard to the third breach of procedure highlighted by Moner, this Court cites People v. Usman18 wherein we declared that the chain of custody is not established solely by compliance with the prescribed physical inventory and photographing of the seized drugs in the presence of the enumerated persons by law. In that case, the police officers who arrested and processed the accused did not perform the prescribed taking of photographs under the law but, nevertheless, the assailed conviction was upheld. The Court reasoned thus: [T]his Court has, in many cases, held that while the chain of custody should ideally be perfect, in reality it is not, "as it is almost always impossible to obtain an unbroken chain." The most important factor is the preservation of the integrity and the evidentiary value of the seized items as they will be used to determine the guilt or innocence of the accused. x x x.19 In the case at bar, the records indicate that the integrity and the evidentiary value of the seized items had been preserved despite the procedural infirmities that accompanied the process. On this score, we quote with approval the disquisition of the Court of Appeals: The record shows that upon the arrest of accused-appellant, the shabu and marked money were confiscated from him by P02 Panopio. Accused-appellant was immediately brought to the Las Piñas Police Station where the items confiscated from him were turned-over by P02 Panopio to P03 Dalagdagan, the investigator-on-case. The latter received the confiscated items and marked them in the presence of P02 Panopio and accused-appellant. An inventory of the confiscated items was also made. Thereafter, the request for laboratory examination was prepared by P03 Dalagdagan and signed by P/C Insp. Jonathan A. Cabal. The specimen together with the request was brought to the PNP Crime Laboratory, Camp Crame, Quezon City by P02 Panopio and the other police officers. There, it was received by PSI Michael S: Holada, who delivered the specimen and request for laboratory test to the forensic chemist PIS Maridel C. Rodis. After examination, the specimen submitted for testing proved positive for Methylamphetamine Hydrochloride, a dangerous drug. The result of the test was reduced to writing and signed by the forensic chemist. It was duly noted by P/Sr. Supt. Ricardo Cacholaver. It is worth stressing that the prosecution and defense had agreed to dispense with the testimony of the forensic chemist and stipulated among others that she could identify the documents and the specimens she examined.20 (Emphases supplied and citations omitted.) Anent Moner' s allegation that the buy-bust team asked money from him and his former co-accused in exchange for their liberty, it must be emphasized that the said allegation only came to light when defense counsel asked appellant what happened when he and his former co-accused were brought to the Las Piñas Police Station.21 Curiously, however, defense counsel did not confront any of the prosecution witnesses regarding the said accusation. More importantly, based on the record, no criminal or administrative· case relating thereto was ever filed by Moner or any of his former co-accused against their alleged extortionists. Nevertheless, on this particular issue, we would like to reiterate our ruling that the defense of denial or frame-up, like alibi, has been invariably viewed by the courts with disfavor for it can just easily be concocted and is a common and standard defense ploy in most prosecution for violation of the Dangerous Drugs Act. 22 At this juncture, it bears repeating that in cases involving violations of the Dangerous Drugs Act, credence is given to prosecution witnesses who are police officers, for they are presumed to have performed their duties in a regular manner, unless there is evidence to the contrary.23 Admittedly, the buy-bust team did not follow certain aspects of procedure to the letter but this was excusable under the saving clause of the chain of custody rule and prevailing jurisprudence. As a consequence thereof, their arrest of Moner in the performance of their duty cannot be described as having been done so irregularly as to convince this Court to invalidate the credibility and belief bestowed by the trial court on the prosecution evidence. Accordingly, Moner must provide clear and convincing evidence to overturn the aforesaid presumption that the police officers regularly performed their duties but the

records show that he has failed to do so. Absent any proof of mishandling, tampering or switching of evidence presented against him by the arresting officers and other authorities involved in the chain of custody, the presumption remains. This is not the first time that this Court has been confronted with the question of whether or not to uphold the conviction of a person arrested for the illegal sale of dangerous drugs who had been positively identified by credible witnesses as the perpetrator of said crime but the manner by which the evidence of illegal drugs was handled did not strictly comply with the chain of custody rule. To reiterate past pronouncements, while ideally the procedure on the chain of custody should be perfect and unbroken, in reality, it is not as it is almost always impossible to obtain an unbroken chain.24 Unfortunately; rigid obedience to procedure creates a scenario wherein the safeguards that we set to shield the innocent are likewise exploited by the guilty to escape rightful punishment. Realizing the inconvenient truth that no perfect chain of custody can ever be achieved, this Court has consistently held that the most important factor in the chain of custody rule is the preservation of the integrity and evidentiary value of the seized items.25 We find it apropos to highlight this Court's discussion in Zalameda v. People, 26 which was restated in the recent case of Saraum v. People27 We would like to add that noncompliance with Section 21 of said law, particularly the making of the inventory and the photographing of the drugs confiscated and/or seized, will not render the drugs inadmissible in evidence. Under Section 3 of Rule 128 of the Rules of Court, evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. For evidence to be inadmissible, there should be a law or rule which forbids its reception. If there is no such law or rule, the evidence must be admitted subject only to the evidentiary weight that will accorded it by the court x x x. We do not find any provision or statement in said law or in any rule that will bring about the non-admissibility of the confiscated and/or seized drugs due to noncompliance with Section 21 of Republic Act No. 9165. The issue therefore, if there is noncompliance with said section, is not of admissibility, but of weight - evidentiary merit or probative value - to be given the evidence. The weight to be given by the courts on said evidence depends on the circumstances obtaining in each case. Stated differently, if the evidence of illegal drugs was not handled precisely in the manner prescribed by the chain of custody rule, the consequence relates not to inadmissibility that would automatically destroy the prosecution's case but rather to the weight of evidence presented for each particular case. In the case at bar, the trial court judge convicted Moner on the strength of the credibility of the prosecution's witnesses despite an imperfect chain of custody concerning the corpus delicti. It should be noted that Section 21(a) of the IRR of Republic Act No. 9165 provides that: SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. - The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory of the seized items and photograph the same in the presence of the accused or the persons from whom such items were confiscated and/or seized, or his/her representative or counsel, with an elected public official and a representative of the National Prosecution Service or the media who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, That the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures: Provided, finally, That noncompliance of these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures and custody over said items. (Emphases supplied.)

The above-quoted provision recognizes that the credibility of the prosecution's witnesses and the admissibility of other evidence are well within the power of trial court judges to decide. Paragraph (5), Section 5, Article VIII of the 1987 Constitution vests upon the Supreme Court the following power, among others: (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. Jurisprudence explains the above-quoted constitutional provision m the following manner: Until the 1987 Constitution took effect, our two previous constitutions textualized a power sharing scheme between the legislature and this Court in the enactment of judicial rules. Thus, both the 1935 and the 1973 Constitutions vested on the Supreme Court the "power to promulgate rules concerning pleading, practice, and procedure in all courts, and the admission to the practice of law." However, these constitutions also granted to the legislature the concurrent power to "repeal, alter or supplement" such rules. The 1987 Constitution textually altered the power-sharing scheme under the previous charters by deleting in Section 5(5) of Article VIII Congress' subsidiary and corrective power. This glaring and fundamental omission led the Court to observe in Echegaray v. Secretary of Justice that this Court's power to promulgate judicial rules "is no longer shared by this Court with Congress."28 The power to promulgate rules concerning pleading, practice and procedure in all courts is a traditional power of this Court.29 This includes the power to promulgate the rules of evidence. On the other hand, the Rules of Evidence are provided in the Rules of Court issued by the Supreme Court. However, the chain of custody rule is not found in the Rules of Court. Section 21 of Republic Act No. 9165 was passed by the legislative department and its implementing rules were promulgated by PDEA, in consultation with the Department of Justice (DOJ) and other agencies under and within the executive department. In the United States, the chain of custody rule is followed by the federal courts using the provisions of the Federal Rules of Evidence. The Federal Court of Appeals applied this rule in United States v. Ricco30 and held as follows: The "chain of custody" rule is found in Fed. R. Evid. 901, which requires that the admission of an exhibit must be preceded by "evidence sufficient to support a finding that the matter in question is what its proponent claims." x x x. x x x As we have pointed out, the "chain of custody' is not an iron-clad requirement, and the fact of a ‘missing link' does not prevent the admission of real evidence, so long as there is sufficient proof that the evidence is what it purports to be and has not been altered in any material respect." x x x. According to Cornell University's online legal encyclopedia, "[r]ules of evidence are, as the name indicates, the rules by which a court determines what evidence is admissible at trial. In the U.S., federal courts follow the Federal Rules of Evidence, while state courts generally follow their own rules."31 In the U.S. State of Alaska, for example, the "chain of custody" rule is found in Alaska Evidence Rule 901(a). 32 Evidence is defined in Section 1 of Rule 12833 as "the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact." Section 2 of the same Rule provides that "[t]he rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise provided by law or these rules." Furthermore, the said Rule provides for the admissibility of evidence, and states that "[ e ]vidence is admissible when it is relevant to the issue and is not excluded by the law or these rules." The Rules of Admissibility provide

that "[ o ]bjects as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. "34 Under the doctrine of separation of powers, it is important to distinguish if a matter is a proper subject of the rules of evidence, which as shown above are promulgated by the Court, or it is a subject of substantive law, and should be passed by an act of Congress. The Court discussed this distinction in the early case of Bustos v. Lucero35: Substantive law creates substantive rights and the two terms in this respect may be said to be synonymous. Substantive rights is a term which includes those rights which one enjoys under the legal system prior to the disturbance of normal relations. (60 C. J., 980.) Substantive law is that part of the law which creates, defines and regulates rights, or which regulates ·the rights and duties which give rise to a cause of action; that part of the law which courts are established to administer; as opposed to adjective or remedial law, which prescribes the method of enforcing rights or obtains redress for their invasion. (36 C. J., 27; 52 C. J. S., 1026.) As applied to criminal law, substantive law is that which declares what acts are crimes and prescribes the punishment for committing them, as distinguished from the procedural law which provides or regulates the steps by which one who commits a crime is to be punished. (22 C. J. S., 49.) Preliminary investigation is eminently and essentially remedial; it is the first step taken in a criminal prosecution. As a rule of evidence, section 11 of Rule 108 is also procedural. Evidence - which is "the mode and manner of proving the competent facts and circumstances on which a party relies to establish the fact in dispute in judicial proceedings" - is identified with and forms part of the method by which, in private law, rights are enforced and redress obtained, and, in criminal law, a law transgressor is punished. Criminal procedure refers to pleading, evidence and practice. (State vs. Capaci, 154 So., 419; 179 La., 462.) The entire rules of evidence have been incorporated into the Rules of Court. We can not tear down section 11 of Rule 108 on constitutional grounds without throwing out the whole code of evidence embodied in these Rules. In Beazell vs. Ohio, 269 U. S., 167, 70 Law. ed., 216, the United States Supreme Court said: "Expressions are to be found in earlier judicial opinions to the effect that the constitutional limitation may be transgressed by alterations in the rules of evidence or procedure. See Calder vs. Bull, 3 Dall. 386, 390, 1 L. ed., 648, 650; Cummings vs. Missouri, 4 Wall. 277, 326, 18 L. ed., 356, 364; Kring vs.Missouri, 107 U. S. 221, 228, 232, 27 L. ed., 507, 508, 510, 2 Sup. Ct. Rep., 443. And there may be procedural changes which operate to deny to the accused a defense available under the laws in force at the time of the commission of his offense, or which otherwise affect him in such a harsh and arbitrary manner as to fall within the constitutional prohibition. Kring vs. Missouri, 107 U. S., 221, 27 L. ed., 507, 2 Sup. Ct. Rep., 443; Thompson vs. Utah, 170 U. S., 343, 42 L. ed., 1061, 18 Sup. Ct. Rep., 620. But it is now well settled that statutory changes in the mode of trial or the rules of evidence, which do not deprive the accused of a defense and which operate only in a limited and unsubstantial manner to his disadvantage, are not prohibited. A statute which, after indictment, enlarges the class of persons who may be witnesses at the trial, by removing the disqualification of persons convicted of felony, is not an ex post facto law. Hopt vs. Utah, 110 U. S., 575, 28 L. ed., 263, 4 Sup. Ct. Rep., 202, 4 Am. Crim. Rep. 417. Nor is a statute which changes the rules of evidence after the indictment so as to render admissible against the accused evidence previously held inadmissible, Thompson vs. Missouri, 171 U. S., 380, 43 L. ed., 204, 18 Sup. Ct. Rep., 922; or which changes the place of trial, Gut vs. Minnesota, 9 Wall. 35, 19 L. ed., 573; or which abolishes a court for hearing criminal appeals, creating a new one in its stead. See Duncan vs. Missouri, 152 U. S., 377, 382, 38 L. ed., 485, 487, 14 Sup. Ct. Rep., 570." xxxx The distinction between "remedy" and "substantive right" is incapable of exact definition. The difference is somewhat a question of degree. (Dexter vs. Edmands, 89 F., 467; Beazell vs. Ohio, supra.) It is difficult to draw a line in any particular case beyond which legislative power over remedy and procedure can pass without touching upon the substantive rights of parties affected, as it is impossible to fix that boundary by general condition. (State vs. Pavelick, 279 P., 1102.) This being so, it is inevitable that the Supreme Court in making rules should step on substantive rights, and the Constitution must be presumed to tolerate if not to expect such incursion as does not affect the accused in a harsh and arbitrary manner or deprive him of a defense, but operates only in a limited and unsubstantial manner to his disadvantage. For the Court's power is not merely to compile, revise or

codify the rules of procedure existing at the time of the Constitution's approval. This power is "to promulgate rules concerning pleading, practice, and procedure in all courts," which is a power to adopt a general, complete and comprehensive system of procedure, adding new and different rules without regard to their source and discarding old ones. To emphasize, the distinction in criminal law is this: substantive law is that which declares what acts are crimes and prescribes the punishment for committing them, as distinguished from the procedural law which provides or regulates the steps by which one who commits a crime is to be punished.36 Based on the above, it may be gleaned that the chain of custody rule is a matter of evidence and a rule of procedure.1âwphi1 It is therefore the Court who has the last say regarding the appreciation of evidence. Relevant portions of decisions elucidating on the chain of custody rule are quoted below: Saraum v. People37: The chain of custody rule requires the identification of the persons who handled the confiscated items for the purpose of duly monitoring the authorized movements of the illegal drugs and/or drug paraphernalia from the time they were seized from the accused until the time they are presented in court.x x x. (Citation omitted.) Mallillin v. People38 : Prosecutions for illegal possession of prohibited drugs necessitates that the elemental act of possession of a prohibited substance be established with moral certainty, together with the fact that the same is not authorized by law. The dangerous drug itself constitutes the very corpus delicti of the offense and the fact of its existence is vital to a judgment of conviction. Essential therefore in these cases is that the identity of the prohibited drug be established beyond doubt. Be that as it may, the mere fact of unauthorized possession will not suffice to create in a reasonable mind the moral certainty required to sustain a finding of guilt. More than just the fact of possession, the fact that the substance illegally possessed in the first place is the same substance offered in court as exhibit must also be established with the same unwavering exactitude as that requisite to make a finding of guilt. The chain of custody requirement performs this function in that it ensures that unnecessary doubts concerning the identity of the evidence are removed. As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. (Citations omitted.) These are matters well within the powers of courts to appreciate and rule upon, and so, when the courts find appropriate, substantial compliance with the chain of custody rule as long as the integrity and evidentiary value of the seized items have been preserved may warrant the conviction of the accused. This is the rationale, grounded on the constitutional power of the Court, to pass upon the credibility and admissibility of evidence that underlies the proviso in Section 21(a) of the IRR of Republic Act No. 9165. To conclude, this Court has consistently espoused the time-honored doctrine that where the issue is one of credibility of witnesses, the findings of the trial court are not to be disturbed unless the consideration of certain facts of substance and value, which have been plainly overlooked, might affect the result of the case. 39 We do not believe that the explainable deviations to the chain of custody rule demonstrated by the police officers involved in this case are reason enough to overturn the findings of the trial court judge, who personally observed and weighed the testimony of the witnesses during trial and examined the evidence submitted by both parties.

In light of the foregoing, we are compelled to dismiss the present appeal and affirm the conviction of Moner for the crime of illegal sale of dangerous drugs. WHEREFORE, premises considered, the present appeal is DISMISSED for lack of merit. The assailed Decision dated July 27, 2011 of the Court of Appeals in CA-G.R. CR-H.C. No. 04399 is AFFIRMED. SO ORDERED. SOUTHERN HEMISPHERE G.R. No. 178552 ENGAGEMENT NETWORK, INC., on behalf of the South-South Network Present: (SSN) for Non-State Armed Group Engagement, and ATTY. SOLIMAN M. CORONA, C.J., SANTOS, JR., CARPIO, Petitioners, CARPIO MORALES, VELASCO, JR., NACHURA, - versus LEONARDO-DE CASTRO, BRION, PERALTA, ANTI-TERRORISM COUNCIL, THE BERSAMIN, EXECUTIVE SECRETARY, THE DEL CASTILLO, SECRETARY OF JUSTICE, THE ABAD, SECRETARY OF FOREIGN AFFAIRS, VILLARAMA, JR., THE SECRETARY OF NATIONAL PEREZ, DEFENSE, THE SECRETARY OF THE MENDOZA, and INTERIOR AND LOCAL SERENO, JJ. GOVERNMENT, THE SECRETARY OF FINANCE, THE NATIONAL SECURITY ADVISER, THE CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES, AND THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, Respondents. x ------------------------------- x KILUSANG MAYO UNO (KMU), Promulgated: represented by its Chairperson Elmer Labog, NATIONAL FEDERATION OF October 5, 2010 LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by its National President Joselito V. Ustarez G.R. No. 178554 and Secretary General Antonio C. Pascual, and CENTER FOR TRADE UNION AND HUMAN RIGHTS, represented by its Executive Director Daisy Arago, Petitioners,

- versus HON. EDUARDO ERMITA, in his capacity as Executive Secretary, NORBERTO GONZALES, in his capacity as Acting Secretary of National Defense, HON. RAUL

GONZALES, in his capacity as Secretary of Justice, HON. RONALDO PUNO, in his capacity as Secretary of the Interior and Local Government, GEN. HERMOGENES ESPERON, in his capacity as AFP Chief of Staff, and DIRECTOR GENERAL OSCAR CALDERON, in his capacity as PNP Chief of Staff, Respondents. x ------------------------------------ x

BAGONG ALYANSANG MAKABAYAN (BAYAN), GENERAL ALLIANCE BINDING WOMEN FOR REFORMS, INTEGRITY, EQUALITY, LEADERSHIP AND ACTION (GABRIELA), KILUSANG MAGBUBUKID NG PILIPINAS (KMP), MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE), KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY), SOLIDARITY OF CAVITE WORKERS, LEAGUE OF FILIPINO STUDENTS (LFS), ANAKBAYAN, PAMBANSANG LAKAS NG KILUSANG MAMAMALAKAYA (PAMALAKAYA), ALLIANCE OF CONCERNED TEACHERS (ACT), MIGRANTE, HEALTH ALLIANCE FOR DEMOCRACY (HEAD), AGHAM, TEOFISTO GUINGONA, JR., DR. BIENVENIDO LUMBERA, RENATO CONSTANTINO, JR., SISTER MARY JOHN MANANSAN OSB, DEAN CONSUELO PAZ, ATTY. JOSEFINA LICHAUCO, COL. GERRY CUNANAN (ret.), CARLITOS SIGUION-REYNA, DR. CAROLINA PAGADUAN-ARAULLO, RENATO REYES, DANILO RAMOS, EMERENCIANA DE LESUS, RITA BAUA, REY CLARO CASAMBRE, Petitioners,

- versus -

GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALES,

G.R. No. 178581

DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO. DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTIMONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents. x ------------------------------------ x KARAPATAN, ALLIANCE FOR THE ADVANCEMENT OF PEOPLES RIGHTS, represented herein by Dr. Edelina de la Paz, and representing the following organizations: HUSTISYA, represented by Evangeline Hernandez and also on her own behalf; DESAPARECIDOS, represented by Mary Guy Portajada and also on her own behalf, SAMAHAN NG MGA EXDETAINEES LABAN SA DETENSYON AT PARA SA AMNESTIYA (SELDA), represented by Donato Continente and also on his own behalf, ECUMENICAL MOVEMENT FOR JUSTICE AND PEACE (EMJP), represented by Bishop Elmer M. Bolocon, UCCP, and PROMOTION OF CHURCH PEOPLES RESPONSE, represented by Fr. Gilbert Sabado, OCARM, Petitioners,

- versus -

GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE SECRETARTY EDUARDO ERMITA,

DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO, DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTIMONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents. x------------------------------------ x THE INTEGRATED BAR OF THE PHILIPPINES (IBP), represented by Atty. Feliciano M. Bautista, COUNSELS FOR THE DEFENSE OF LIBERTY(CODAL), SEN. MA. ANA CONSUELO A.S. MADRIGAL and FORMER SENATORS SERGIO OSMEA III and WIGBERTO E. TAADA, Petitioners,

- versus -

EXECUTIVE SECRETARY EDUARDO ERMITA AND THE MEMBERS OF THE ANTI-TERRORISM COUNCIL (ATC), Respondents. x------------------------------------- x BAGONG ALYANSANG MAKABAYANSOUTHERN TAGALOG (BAYAN-ST), GABRIELA-ST, KATIPUNAN NG MGA SAMAHYANG MAGSASAKA-TIMOG KATAGALUGAN (KASAMA-TK),

G.R. No. 178890

MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), PEOPLES MARTYRS, ANAKBAYAN-ST, PAMALAKAYA-ST, CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE-ST), PAGKAKAISAT UGNAYAN NG MGA MAGBUBUKID SA LAGUNA (PUMALAG), SAMAHAN NG MGA MAMAMAYAN SA TABING RILES (SMTR-ST), LEAGUE OF FILIPINO STUDENTS (LFS), BAYAN MUNA-ST, KONGRESO NG MGA MAGBUBUKID PARA SA REPORMANG AGRARYO KOMPRA, BIGKIS AT LAKAS NG MGA KATUTUBO SA TIMOG KATAGALUGAN (BALATIK), SAMAHAN AT UGNAYAN NG MGA MAGSASAKANG KABABAIHAN SA TIMOG KATAGALUGAN (SUMAMAKATK), STARTER, LOSOS RURAL POOR ORGANIZATION FOR PROGRESS & EQUALITY, CHRISTIAN NIO LAJARA, TEODORO REYES, FRANCESCA B. TOLENTINO, JANNETTE E. BARRIENTOS, OSCAR T. LAPIDA, JR., DELFIN DE CLARO, SALLY P. ASTRERA, ARNEL SEGUNE BELTRAN, Petitioners,

- versus -

GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES, G.R. No. 179157 DEPARTMENT OF INTERIOR AND LOCAL GOVERNMEN T SECRETARY RONALDO PUNO, DEPARTMENT OF FINCANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE

SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTIMONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents.

G.R. No. 179461

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

DECISION

CARPIO MORALES, J.: Before the Court are six petitions challenging the constitutionality of Republic Act No. 9372 (RA 9372), An Act to Secure the State and Protect our People from Terrorism, otherwise known as the Human Security Act of 2007,[1] signed into law on March 6, 2007. Following the effectivity of RA 9372 on July 15, 2007,[2] petitioner Southern Hemisphere Engagement Network, Inc., a non-government organization, and Atty. Soliman Santos, Jr., a concerned citizen, taxpayer and lawyer, filed a petition for certiorari and prohibition on July 16, 2007 docketed as G.R. No. 178552. On even date, petitioners Kilusang Mayo Uno (KMU), National Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU),

and Center for Trade Union and Human Rights (CTUHR), represented by their respective officers [3] who are also bringing the action in their capacity as citizens, filed a petition for certiorari and prohibition docketed as G.R. No. 178554.

The following day, July 17, 2007, organizations Bagong Alyansang Makabayan (BAYAN), General Alliance Binding Women for Reforms, Integrity, Equality, Leadership and Action (GABRIELA), Kilusang Magbubukid ng Pilipinas (KMP), Movement of Concerned Citizens for Civil Liberties (MCCCL), Confederation for Unity, Recognition and Advancement of Government Employees (COURAGE), Kalipunan ng Damayang Mahihirap (KADAMAY), Solidarity of Cavite Workers (SCW), League of Filipino Students (LFS), Anakbayan, Pambansang Lakas ng Kilusang Mamamalakaya (PAMALAKAYA), Alliance of Concerned Teachers (ACT), Migrante, Health Alliance for Democracy (HEAD), and Agham, represented by their respective officers, [4] and joined by concerned citizens and taxpayers Teofisto Guingona, Jr., Dr. Bienvenido Lumbera, Renato Constantino, Jr., Sister Mary John Manansan, OSB, Dean Consuelo Paz, Atty. Josefina Lichauco, Retired Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina Pagaduan-Araullo, Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua and Rey Claro Casambre filed a petition for certiorari and prohibition docketed as G.R. No. 178581. On August 6, 2007, Karapatan and its alliance member organizations Hustisya, Desaparecidos, Samahan ng mga Ex-Detainees Laban sa Detensyon at para sa Amnestiya (SELDA), Ecumenical Movement for Justice and Peace (EMJP), and Promotion of Church Peoples Response (PCPR), which were represented by their respective officers[5] who are also bringing action on their own behalf, filed a petition for certiorari and prohibition docketed as G.R. No. 178890.

On August

29,

2007,

the

Integrated

Bar

of

the Philippines (IBP),

Counsels

for

the

Defense

of Liberty (CODAL),[6] Senator Ma. Ana Consuelo A.S. Madrigal, Sergio Osmea III, and Wigberto E. Taada filed a petition for certiorari and prohibition docketed as G.R. No. 179157.

Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional chapters and organizations mostly based in the Southern Tagalog Region,[7] and individuals[8] followed suit by filing on September 19, 2007 a petition for certiorari and prohibition docketed as G.R. No. 179461 that replicates the allegations raised in the BAYAN petition in G.R. No. 178581.

Impleaded as respondents in the various petitions are the Anti-Terrorism Council[9] composed of, at the time of the filing of the petitions, Executive Secretary Eduardo Ermita as Chairperson, Justice Secretary Raul Gonzales as Vice Chairperson, and Foreign Affairs Secretary Alberto Romulo, Acting Defense Secretary and National Security Adviser Norberto Gonzales, Interior and Local Government Secretary Ronaldo Puno, and Finance Secretary Margarito Teves as members. All the petitions, except that of the IBP, also impleaded Armed Forces of the Philippines (AFP) Chief of Staff Gen. Hermogenes Esperon and Philippine National Police (PNP) Chief Gen. Oscar Calderon.

The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria Macapagal-Arroyo and the support agencies for the Anti-Terrorism Council like the National Intelligence Coordinating Agency, National Bureau of Investigation, Bureau of Immigration, Office of Civil Defense, Intelligence Service of the AFP, AntiMoney Laundering Center, Philippine Center on Transnational Crime, and the PNP intelligence and investigative elements.

The petitions fail.

Petitioners resort to certiorari is improper

Preliminarily, certiorari does not lie against respondents who do not exercise judicial or quasi-judicial functions. Section 1, Rule 65 of the Rules of Court is clear:

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 jurisdiction, and there is no appeal, nor 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. (Emphasis and underscoring supplied)

Parenthetically, petitioners do not even allege with any modicum of particularity how respondents acted without or in excess of their respective jurisdictions, or with grave abuse of discretion amounting to lack or excess of jurisdiction.

The impropriety of certiorari as a remedy aside, the petitions fail just the same.

In constitutional litigations, the power of judicial review is limited by four exacting requisites, viz: (a) there must be an actual case or controversy; (b) petitioners must possess locus standi; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must be the lis mota of the case.[10]

In the present case, the dismal absence of the first two requisites, which are the most essential, renders the discussion of the last two superfluous.

Petitioners lack locus standi

Locus standi or legal standing requires 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.[11]

Anak Mindanao Party-List Group v. The Executive Secretary[12] summarized the rule on locus standi, thus: Locus standi or legal standing has been defined as a personal and substantial interest in a case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question on 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. [A] party who assails the constitutionality of a statute must have a direct and personal interest. It must show not only that the law or any governmental act is invalid, but also that it sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that it suffers thereby in some indefinite way. It must show that it has been or is about to be denied some right or privilege to which it is lawfully entitled or that it is about to be subjected to some burdens or penalties by reason of the statute or act complained of. For a concerned party to be allowed to raise a constitutional question, it must show that (1) it has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government, (2) the injury is fairly traceable to the challenged action, and (3) the injury is likely to be redressed by a favorable action. (emphasis and underscoring supplied.)

Petitioner-organizations assert locus standi on the basis of being suspected communist fronts by the government, especially the military; whereas individual petitioners invariably invoke the transcendental importance doctrine and their status as citizens and taxpayers.

While Chavez v. PCGG[13] holds that transcendental public importance dispenses with the requirement that petitioner has experienced or is in actual danger of suffering direct and personal injury, cases involving the constitutionality of penal legislation belong to an altogether different genus of constitutional litigation. Compelling State and societal interests in the proscription of harmful conduct, as will later be elucidated, necessitate a closer judicial scrutiny of locus standi.

Petitioners have not presented any personal stake in the outcome of the controversy. None of them faces any charge under RA 9372.

KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners in G.R. No. 178890, allege that they have been subjected to close security surveillance by state security forces, their members followed by suspicious persons and vehicles with dark windshields, and their offices monitored by men with military build. They likewise claim that they have been branded as enemies of the [S]tate. [14]

Even conceding such gratuitous allegations, the Office of the Solicitor General (OSG) correctly points out that petitioners have yet to show any connection between the purported surveillance and the implementation of RA 9372.

BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA, ACT, Migrante, HEAD and Agham, petitioner-organizations in G.R. No. 178581, would like the Court to take judicial notice of respondents alleged action of tagging them as militant organizations fronting for the Communist Party of the Philippines (CPP) and its armed wing, the National Peoples Army (NPA). The tagging, according to petitioners, is tantamount to the effects of proscription without following the procedure under the law.[15] The petition of BAYAN-ST, et al. in G.R. No. 179461 pleads the same allegations.

The Court cannot take judicial notice of the alleged tagging of petitioners. Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the court. The principal guide in determining what facts may be assumed to be judicially known is that of notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety. Moreover, a judicially noticed fact must be one not subject to a reasonable dispute in that it is either: (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably be questionable. Things of common knowledge, of which courts take judicial matters coming to the knowledge of men generally in the course of the ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestioned demonstration. Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries or other publications, are judicially noticed, provided, they are of such universal notoriety and so generally understood that they may be regarded as forming part of the common knowledge of every person. As the common knowledge of man ranges far and wide, a wide variety of particular facts have been judicially noticed as being matters of common knowledge. But a court cannot take judicial notice of any fact which, in part, is dependent on the existence or non-existence of a fact of which the court has no constructive knowledge.[16] (emphasis and underscoring supplied.)

No ground was properly established by petitioners for the taking of judicial notice. Petitioners apprehension is insufficient to substantiate their plea. That no specific charge or proscription under RA 9372 has been filed against them, three years after its effectivity, belies any claim of imminence of their perceived threat emanating from the so-called tagging.

The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who merely harp as well on their supposed link to the CPP and NPA. They fail to particularize how the implementation of specific provisions of RA 9372 would result in direct injury to their organization and members.

While in our jurisdiction there is still no judicially declared terrorist organization, the United States of America[17] (US) and the European Union[18] (EU) have both classified the CPP, NPA and Abu Sayyaf Group as foreign terrorist organizations. The Court takes note of the joint statement of Executive Secretary Eduardo Ermita and Justice Secretary Raul Gonzales that the Arroyo Administration would adopt the US and EU classification of the CPP and NPA as terrorist organizations.[19] Such statement notwithstanding, there is yet to be filed before the courts an application to declare the CPP and NPA organizations as domestic terrorist or outlawed organizations under RA 9372. Again, RA 9372 has been in effect for three years now. From July 2007 up to the present, petitioner-organizations have conducted their activities fully and freely without any threat of, much less an actual, prosecution or proscription under RA 9372.

Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list Representatives Saturnino Ocampo, Teodoro Casio, Rafael Mariano and Luzviminda Ilagan, [20] urged the government to resume peace negotiations with the NDF by removing the impediments thereto, one of which is the adoption of designation of the CPP and NPA by the US and EU as foreign terrorist organizations. Considering the policy statement of the Aquino Administration[21] of resuming peace talks with the NDF, the government is not imminently disposed to ask for the judicial proscription of the CPP-NPA consortium and its allied organizations.

More important, there are other parties not before the Court with direct and specific interests in the questions being raised.[22] Of recent development is the filing of the first case for proscription under Section 17[23] of RA 9372

by

the

Department

of

Justice

before

the

Basilan

Regional

Trial

Court

against

the Abu

Sayyaf Group.[24] Petitioner-organizations do not in the least allege any link to the Abu SayyafGroup.

Some petitioners attempt, in vain though, to show the imminence of a prosecution under RA 9372 by alluding to past rebellion charges against them.

In Ladlad v. Velasco,[25] the Court ordered the dismissal of rebellion charges filed in 2006 against then Party-List Representatives Crispin Beltran and Rafael Mariano of Anakpawis, Liza Maza of GABRIELA, and Joel Virador, Teodoro Casio and Saturnino Ocampo of Bayan Muna. Also named in the dismissed rebellion charges were petitioners Rey Claro Casambre, Carolina Pagaduan-Araullo, Renato Reyes, Rita Baua, Emerencia de Jesus and Danilo Ramos; and accused of being front organizations for the Communist movement were petitionerorganizations KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP, KADAMAY, LFS and COURAGE. [26]

The dismissed rebellion charges, however, do not save the day for petitioners. For one, those charges were filed in 2006, prior to the enactment of RA 9372, and dismissed by this Court. For another, rebellion is defined and punished under the Revised Penal Code. Prosecution for rebellion is not made more imminent by the enactment of RA 9372, nor does the enactment thereof make it easier to charge a person with rebellion, its elements not having been altered.

Conversely, previously filed but dismissed rebellion charges bear no relation to prospective charges under RA 9372. It cannot be overemphasized that three years after the enactment of RA 9372, none of petitioners has been charged.

Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on their sworn duty to uphold the Constitution. The IBP zeroes in on Section 21 of RA 9372 directing it to render assistance to those arrested or detained under the law.

The mere invocation of the duty to preserve the rule of law does not, however, suffice to clothe the IBP or any of its members with standing.[27] The IBP failed to sufficiently demonstrate how its mandate under the assailed statute revolts against its constitutional rights and duties. Moreover, both the IBP and CODAL have not pointed to even a single arrest or detention effected under RA 9372. Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of political surveillance, also lacks locus standi. Prescinding from the veracity, let alone legal basis, of the claim of political surveillance, the Court finds that she has not shown even the slightest threat of being charged under RA 9372. Similarly lacking in locus standi are former Senator Wigberto Taada and Senator Sergio Osmea III, who cite their being respectively a human rights advocate and an oppositor to the passage of RA 9372. Outside these gratuitous statements, no concrete injury to them has been pinpointed.

Petitioners Southern

Hemisphere

Engagement

Network and Atty.

Soliman

Santos

Jr. in G.R.

No.

178552 also conveniently state that the issues they raise are of transcendental importance, which must be settled early and are of far-reaching implications, without mention of any specific provision of RA 9372 under which they have been charged, or may be charged. Mere invocation of human rights advocacy has nowhere been held sufficient to clothe litigants with locus standi. Petitioners must show an actual, or immediate danger of sustaining, direct injury as a result of the laws enforcement. To rule otherwise would be to corrupt the settled doctrine of locus standi, as every worthy cause is an interest shared by the general public.

Neither can locus standi be conferred upon individual petitioners as taxpayers and citizens. A taxpayer suit is proper only when there is an exercise of the spending or taxing power of Congress, [28] whereas citizen standing must rest on direct and personal interest in the proceeding.[29]

RA 9372 is a penal statute and does not even provide for any appropriation from Congress for its implementation, while none of the individual petitioner-citizens has alleged any direct and personal interest in the implementation of the law.

It bears to stress that generalized interests, albeit accompanied by the assertion of a public right, do not establish locus standi. Evidence of a direct and personal interest is key.

Petitioners fail to present an actual case or controversy

By constitutional fiat, judicial power operates only when there is an actual case or controversy. Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.[30] (emphasis and underscoring supplied.) As early as Angara v. Electoral Commission,[31] the Court ruled that the power of judicial review is limited to actual cases or controversies to be exercised after full opportunity of argument by the parties. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory, lest the decision of the court would amount to an advisory opinion. [32]

Information Technology Foundation of the Philippines v. COMELEC[33] cannot be more emphatic:

[C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging. The controversy must be justiciabledefinite and concrete, touching on the legal relations of parties having adverse legal interests. In other words, the pleadings must show an active antagonistic assertion of a legal right, on the one hand, and a denial thereof on the other hand; that is, it must concern a real and not merely a theoretical question or issue. There ought to be an actual and substantial controversy admitting of specific relief through a decree conclusive in nature, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. (Emphasis and underscoring supplied)

Thus, a petition to declare unconstitutional a law converting the Municipality of Makati into a Highly Urbanized City was held to be premature as it was tacked on uncertain, contingent events. [34] Similarly, apetition that fails to allege that an application for a license to operate a radio or television station has been denied or granted by the authorities does not present a justiciable controversy, and merely wheedles the Court to rule on a hypothetical problem.[35]

The Court dismissed the petition in Philippine Press Institute v. Commission on Elections [36] for failure to cite any specific affirmative action of the Commission on Elections to implement the assailed resolution. It refused, in Abbas v. Commission on Elections,[37] to rule on the religious freedom claim of the therein petitioners based merely on a perceived potential conflict between the provisions of the Muslim Code and those of the national law, there being no actual controversy between real litigants.

The list of cases denying claims resting on purely hypothetical or anticipatory grounds goes on ad infinitum.

The Court is not unaware that a reasonable certainty of the occurrence of a perceived threat to any constitutional interest suffices to provide a basis for mounting a constitutional challenge. This, however, is qualified by the requirement that there must be sufficient facts to enable the Court to intelligently adjudicate the issues.[38] Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project,[39] allowed the pre-enforcement review of a criminal statute, challenged on vagueness grounds, since plaintiffs faced a credible threat of prosecution and should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.[40] The plaintiffs therein filed an action before a federal court to assail the constitutionality of the material support statute, 18 U.S.C. 2339B (a) (1),[41] proscribing the provision of material support to organizations declared by the Secretary of State as foreign terrorist organizations.They claimed that they intended to provide support for the humanitarian and political activities of two such organizations.

Prevailing American jurisprudence allows an adjudication on the merits when an anticipatory petition clearly shows that the challenged prohibition forbids the conduct or activity that a petitioner seeks to do, as there would then be a justiciable controversy.[42]

Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the challenged provisions of RA 9372 forbid constitutionally protected conduct or activity that they seek to do. No demonstrable threat has been established, much less a real and existing one.

Petitioners obscure allegations of sporadic surveillance and supposedly being tagged as communist fronts in no way approximate a credible threat of prosecution. From these allegations, the Court is being lured to render an advisory opinion, which is not its function.[43]

Without any justiciable controversy, the petitions have become pleas for declaratory relief, over which the Court has no original jurisdiction. Then again, declaratory actions characterized by double contingency, where both the activity the petitioners intend to undertake and the anticipated reaction to it of a public official are merely theorized, lie beyond judicial review for lack of ripeness.[44]

The possibility of abuse in the implementation of RA 9372 does not avail to take the present petitions out of the realm of the surreal and merely imagined. Such possibility is not peculiar to RA 9372 since the exercise of any power granted by law may be abused.[45] Allegations of abuse must be anchored on real events before courts may step in to settle actual controversies involving rights which are legally demandable and enforceable.

A facial invalidation of a statute is allowed only in free speech cases, wherein certain rules of constitutional litigation are rightly excepted

Petitioners assail for being intrinsically vague and impermissibly broad the definition of the crime of terrorism[46] under RA 9372 in that terms like widespread and extraordinary fear and panic among the populace and coerce the government to give in to an unlawful demand are nebulous, leaving law enforcement agencies with no standard to measure the prohibited acts.

Respondents, through the OSG, counter that the doctrines of void-for-vagueness and overbreadth find no application in the present case since these doctrines apply only to free speech cases; and that RA 9372 regulates conduct, not speech.

For a jurisprudentially guided understanding of these doctrines, it is imperative to outline the schools of thought on whether

the

void-for-vagueness

and

overbreadth

doctrines

are equally

applicable grounds

to

assail

a penal statute.

Respondents interpret recent jurisprudence as slanting toward the idea of limiting the application of the two doctrines to free speech cases. They particularly cite Romualdez v. Hon. Sandiganbayan[47] and Estrada v. Sandiganbayan.[48]

The Court clarifies.

At issue in Romualdez v. Sandiganbayan was whether the word intervene in Section 5[49] of the Anti-Graft and Corrupt Practices Act was intrinsically vague and impermissibly broad. The Court stated that the overbreadth and the vagueness doctrines have special application only to free-speech cases, and are not appropriate for testing the validity of penal statutes.[50] It added that, at any rate, the challenged provision, under which the therein petitioner was charged, is not vague.[51]

While in the subsequent case of Romualdez v. Commission on Elections,[52] the Court stated that a facial invalidation of criminal statutes is not appropriate, it nonetheless proceeded to conduct a vagueness analysis, and concluded that the therein subject election offense[53] under the Voters Registration Act of 1996, with which the therein petitioners were charged, is couched in precise language.[54]

The two Romualdez cases rely heavily on the Separate Opinion[55] of Justice Vicente V. Mendoza in the Estrada case, where the Court found the Anti-Plunder Law (Republic Act No. 7080) clear and free from ambiguity respecting the definition of the crime of plunder.

The position taken by Justice Mendoza in Estrada relates these two doctrines to the concept of a facial invalidation as opposed to an as-applied challenge. He basically postulated that allegations that a penal statute is vague and overbroad do not justify a facial review of its validity. The pertinent portion of the Concurring Opinion of Justice Mendoza, which was quoted at length in the main Estrada decision, reads: A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity." The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes. This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech. The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment." In Broadrick v. Oklahoma, the Court ruled that "claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it has been held that "a facial challenge to a legislative act is the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others." In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." As has been pointed out, "vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant." Consequently, there is no basis for petitioner's claim that this Court review the Anti-Plunder Law on its face and in its entirety. Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might be applied to parties not before the Court whose activities are constitutionally protected. It constitutes a departure from the case and controversy requirement of the Constitution and permits decisions to be made without concrete factual settings and in sterile abstract contexts. But, as the U.S. Supreme Court pointed out in Younger v. Harris [T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary.The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-

by-line analysis of detailed statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided. For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be employed "sparingly and only as a last resort," and is generally disfavored. In determining the constitutionality of a statute, therefore, its provisions which are alleged to have been violated in a case must be examined in the light of the conduct with which the defendant is charged.[56] (Underscoring supplied.)

The confusion apparently stems from the interlocking relation of the overbreadth and vagueness doctrines as grounds for a facial or as-applied challenge against a penal statute (under a claim of violation of due process of law) or a speech regulation (under a claim of abridgement of the freedom of speech and cognate rights).

To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on the same plane.

A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. [57] The overbreadth doctrine, meanwhile, decrees that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.[58]

As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that individuals will understand what a statute prohibits and will accordingly refrain from that behavior, even though some of it is protected. [59]

A facial challenge is likewise different from an as-applied challenge.

Distinguished

from

an as-applied challenge

which

considers

only extant facts

affecting real litigants,

a facial invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities.[60]

Justice Mendoza accurately phrased the subtitle[61] in his concurring opinion that the vagueness and overbreadth doctrines, as grounds for a facial challenge, are not applicable to penal laws. A litigant cannot thus successfully mount a facial challenge against a criminal statute on either vagueness or overbreadth grounds.

The allowance of a facial challenge in free speech cases is justified by the aim to avert the chilling effect on protected speech, the exercise of which should not at all times be abridged.[62] As reflected earlier, this rationale is inapplicable to plain penal statutes that generally bear an in terrorem effect in deterring socially harmful conduct. In fact, the legislature may even forbid and penalize acts formerly considered innocent and lawful, so long as it refrains from diminishing or dissuading the exercise of constitutionally protected rights. [63]

The Court reiterated that there are critical limitations by which a criminal statute may be challenged and underscored that an on-its-face invalidation of penal statutes x x x may not be allowed.[64]

[T]he rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other fundamental rights may be facially challenged. Under no case may ordinary penal statutes be subjected to a facial challenge.The rationale is obvious. If a facial challenge to a penal statute is permitted, the prosecution of crimes may be hampered. No prosecution would be possible. A strong criticism against employing a facial challenge in the case of penal statutes, if the same is allowed, would effectively go against the grain of the doctrinal requirement of an existing and concrete controversy before judicial power may be appropriately exercised. A facial challenge against a penal statute is, at best, amorphous and speculative. It would, essentially, force the court to consider third parties who are not before it. As I have said in my opposition to the allowance of a facial challenge to attack penal statutes, such a test will impair the States ability to deal with crime. If warranted, there would be nothing that can hinder an accused from defeating the States power to prosecute on a mere showing that, as applied to third parties, the penal statute is vague or overbroad, notwithstanding that the law is clear as applied to him. [65] (Emphasis and underscoring supplied)

It is settled, on the other hand, that the application of the overbreadth doctrine is limited to a facial kind of challenge and, owing to the given rationale of a facial challenge, applicable only to free speech cases.

By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to plot areas of protected speech, inevitably almost always under situations not before the court, that are impermissibly swept by the substantially overbroad regulation. Otherwise stated, a statute cannot be properly analyzed for being substantially overbroad if the court confines itself only to facts as applied to the litigants.

The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper applications on a case to case basis. Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the rights of third parties; and the court invalidates the entire statute "on its face," not merely "as applied for" so that the overbroad law becomes unenforceable until a properly authorized court construes it more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the concern with the "chilling;" deterrent effect of the overbroad statute on third parties not courageous enough to bring suit. The Court assumes that an overbroad laws "very existence may cause others not before the court to refrain from constitutionally protected speech or expression." An overbreadth ruling is designed to remove that deterrent effect on the speech of those third parties.[66] (Emphasis in the original omitted; underscoring supplied.)

In restricting the overbreadth doctrine to free speech claims, the Court, in at least two cases, [67] observed that the US Supreme Court has not recognized an overbreadth doctrine outside the limited context of the First Amendment,[68] and that claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words.[69] In Virginia v. Hicks,[70] it was held that rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or speechrelated conduct. Attacks on overly broad statutes are justified by the transcendent value to all society of constitutionally protected expression.[71]

Since a penal statute may only be assailed for being vague as applied to petitioners, a limited vagueness analysis of the definition of terrorism in RA 9372 is legally impermissible absent an actual or imminent charge against them

While Estrada did not apply the overbreadth doctrine, it did not preclude the operation of the vagueness test on the Anti-Plunder Law as applied to the therein petitioner, finding, however, that there was no basis to review the law on its face and in its entirety.[72] It stressed that statutes found vague as a matter of due process typically are invalidated only 'as applied' to a particular defendant.[73]

American jurisprudence[74] instructs that vagueness challenges that do not involve the First Amendment must be examined in light of the specific facts of the case at hand and not with regard to the statute's facial validity.

For more than 125 years, the US Supreme Court has evaluated defendants claims that criminal statutes are unconstitutionally vague, developing a doctrine hailed as among the most important guarantees of liberty under law.[75]

In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause has been utilized in examining the constitutionality of criminal statutes. In at least three cases,[76] the Court brought the doctrine into play in analyzing an ordinance penalizing the non-payment of municipal tax on fishponds, the crime of illegal recruitment punishable under Article 132(b) of the Labor Code, and the vagrancy provision under Article 202 (2) of the Revised Penal Code. Notably, the petitioners in these three cases, similar to those in the two Romualdez and Estrada cases, were actually charged with the therein assailed penal statute, unlike in the present case.

There is no merit in the claim that RA 9372 regulates speech so as to permit a facial analysis of its validity

From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the following elements may be culled: (1) the offender commits an act punishable under any of the cited provisions of the Revised Penal Code, or under any of the enumerated special penal laws; (2) the commission of the predicate crime sows and creates a condition of widespread and extraordinary fear and panic among the populace; and (3) the offender is actuated by the desire to coerce the government to give in to an unlawful demand.

In insisting on a facial challenge on the invocation that the law penalizes speech, petitioners contend that the element of unlawful demand in the definition of terrorism [77] must necessarily be transmitted through some form of expression protected by the free speech clause.

The argument does not persuade. What the law seeks to penalize is conduct, not speech.

Before a charge for terrorism may be filed under RA 9372, there must first be a predicate crime actually committed to trigger the operation of the key qualifying phrases in the other elements of the crime, including the coercion of the government to accede to an unlawful demand. Given the presence of the first element, any attempt at singling out or highlighting the communicative component of the prohibition cannot recategorize the unprotected conduct into a protected speech.

Petitioners notion on the transmission of message is entirely inaccurate, as it unduly focuses on just one particle of an element of the crime. Almost every commission of a crime entails some mincing of words on the part of the offender like in declaring to launch overt criminal acts against a victim, in haggling on the amount of ransom or conditions, or in negotiating a deceitful transaction. An analogy in one U.S.case[78] illustrated that the fact that the prohibition on discrimination in hiring on the basis of race will require an employer to take down a sign reading White Applicants Only hardly means that the law should be analyzed as one regulating speech rather than conduct. Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither the intent of the law to punish socially harmful conduct nor the essence of the whole act as conduct and not speech. This holds true a fortiori in the present case where the expression figures only as an inevitable incident of making the element of coercion perceptible.

[I]t is true that the agreements and course of conduct here were as in most instances brought about through speaking or writing. But it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was, in part, initiated, evidenced, or carried out by means of language, either spoken, written, or printed. Such an expansive interpretation of the constitutional guaranties of speech and press would make it practically impossible ever to enforce laws against agreements in restraint of trade as well as many other agreements and conspiracies deemed injurious to society. [79] (italics and underscoring supplied)

Certain kinds of speech have been treated as unprotected conduct, because they merely evidence a prohibited conduct.[80] Since speech is not involved here, the Court cannot heed the call for a facial analysis.

IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of the therein subject penal statute as applied to the therein petitioners inasmuch as they were actually charged with the pertinent crimes challenged on vagueness grounds. The Court in said cases, however, found no basis to review the assailed penal statute on its face and in its entirety. In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement review of a criminal statute, challenged on vagueness grounds, since the therein plaintiffs faced a credible threat of prosecution and should not be required to await and undergo a criminal prosecution as the sole means of seeking relief. As earlier reflected, petitioners have established neither an actual charge nor a credible threat of prosecution under RA 9372. Even a limited vagueness analysis of the assailed definition of terrorism is thus legally impermissible. The Court reminds litigants that judicial power neither contemplates speculative counseling on a statutes future effect on hypothetical scenarios nor allows the courts to be used as an extension of a failed legislative lobbying in Congress. WHEREFORE, the petitions are DISMISSED.

SO ORDERED.

[G.R. No. 148560. November 19, 2001]

JOSEPH EJERCITO ESTRADA, petitioner, vs. SANDIGANBAYAN (Third Division) and PEOPLE OF THE PHILIPPINES, respondents. DECISION BELLOSILLO, J.: JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his pen in defense of the rights of the individual from the vast powers of the State and the inroads of societal pressure. But even as he draws a sacrosanct line demarcating the limits on individuality beyond which the State cannot tread - asserting that "individual spontaneity" must be allowed to flourish with very little regard to social interference - he veritably acknowledges that the exercise of rights and liberties is imbued with a civic obligation, which society is justified in enforcing at all cost, against those who would endeavor to withhold fulfillment. Thus he says The sole end for which mankind is warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.

Parallel to individual liberty is the natural and illimitable right of the State to self-preservation. With the end of maintaining the integrity and cohesiveness of the body politic, it behooves the State to formulate a system of laws that would compel obeisance to its collective wisdom and inflict punishment for non-observance. The movement from Mill's individual liberalism to unsystematic collectivism wrought changes in the social order, carrying with it a new formulation of fundamental rights and duties more attuned to the imperatives of contemporary socio-political ideologies. In the process, the web of rights and State impositions became tangled and obscured, enmeshed in threads of multiple shades and colors, the skein irregular and broken. Antagonism, often outright collision, between the law as the expression of the will of the State, and the zealous attempts by its members to preserve their individuality and dignity, inevitably followed. It is when individual rights are pitted against State authority that judicial conscience is put to its severest test. Petitioner Joseph Ejercito Estrada, the highest-ranking official to be prosecuted under RA 7080 (An Act Defining and Penalizing the Crime of Plunder),[1] as amended by RA 7659,[2] wishes to impress upon us that the assailed law is so defectively fashioned that it crosses that thin but distinct line which divides the valid from the constitutionally infirm. He therefore makes a stringent call for this Court to subject the Plunder Law to the crucible of constitutionality mainly because, according to him, (a) it suffers from the vice of vagueness; (b) it dispenses with the "reasonable doubt" standard in criminal prosecutions; and, (c) it abolishes the element of mens rea in crimes already punishable under The Revised Penal Code, all of which are purportedly clear violations of the fundamental rights of the accused to due process and to be informed of the nature and cause of the accusation against him. Specifically, the provisions of the Plunder Law claimed by petitioner to have transgressed constitutional boundaries are Secs. 1, par. (d), 2 and 4 which are reproduced hereunder: Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property, business, enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes: (1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public office concerned; (3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities, or government owned or controlled corporations and their subsidiaries; (4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; (5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or (6) By taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines. Section 2. Definition of the Crime of Plunder, Penalties. - Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1 (d) hereof, in the aggregate amount or total value of at least fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances as provided by the Revised Penal Code shall be

considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State (underscoring supplied). Section 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy (underscoring supplied). On 4 April 2001 the Office of the Ombudsman filed before the Sandiganbayan eight (8) separate Informations, docketed as: (a) Crim. Case No. 26558, for violation of RA 7080, as amended by RA 7659; (b) Crim. Cases Nos. 26559 to 26562, inclusive, for violation of Secs. 3, par. (a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019 (Anti-Graft and Corrupt Practices Act), respectively; (c) Crim. Case No. 26563, for violation of Sec. 7, par. (d), of RA 6713 (The Code of Conduct and Ethical Standards for Public Officials and Employees); (d) Crim. Case No. 26564, for Perjury (Art. 183 of The Revised Penal Code); and, (e) Crim. Case No. 26565, for Illegal Use Of An Alias (CA No. 142, as amended by RA 6085). On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the case to the Ombudsman for preliminary investigation with respect to specification "d" of the charges in the Information in Crim. Case No. 26558; and, for reconsideration/reinvestigation of the offenses under specifications "a," "b," and "c" to give the accused an opportunity to file counter-affidavits and other documents necessary to prove lack of probable cause. Noticeably, the grounds raised were only lack of preliminary investigation, reconsideration/reinvestigation of offenses, and opportunity to prove lack of probable cause. The purported ambiguity of the charges and the vagueness of the law under which they are charged were never raised in that Omnibus Motion thus indicating the explicitness and comprehensibility of the Plunder Law. On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in Crim. Case No. 26558 finding that "a probable cause for the offense of PLUNDER exists to justify the issuance of warrants for the arrest of the accused." On 25 June 2001 petitioner's motion for reconsideration was denied by the Sandiganbayan. On 14 June 2001 petitioner moved to quash the Information in Crim. Case No. 26558 on the ground that the facts alleged therein did not constitute an indictable offense since the law on which it was based was unconstitutional for vagueness, and that the Amended Information for Plunder charged more than one (1) offense. On 21 June 2001 the Government filed its Opposition to the Motion to Quash, and five (5) days later or on 26 June 2001 petitioner submitted his Reply to the Opposition. On 9 July 2001 the Sandiganbayan denied petitioner's Motion to Quash. As concisely delineated by this Court during the oral arguments on 18 September 2001, the issues for resolution in the instant petition for certiorari are: (a) The Plunder Law is unconstitutional for being vague; (b) The Plunder Law requires less evidence for proving the predicate crimes of plunder and therefore violates the rights of the accused to due process; and, (c) Whether Plunder as defined in RA 7080 is a malum prohibitum, and if so, whether it is within the power of Congress to so classify it. Preliminarily, the whole gamut of legal concepts pertaining to the validity of legislation is predicated on the basic principle that a legislative measure is presumed to be in harmony with the Constitution. [3] Courts invariably train their sights on this fundamental rule whenever a legislative act is under a constitutional attack, for it is the postulate of constitutional adjudication. This strong predilection for constitutionality takes its bearings on the idea that it is forbidden for one branch of the government to encroach upon the duties and powers of another. Thus it has been said that the presumption is based on the deference the judicial branch accords to its coordinate branch - the legislature. If there is any reasonable basis upon which the legislation may firmly rest, the courts must assume that the legislature is ever conscious of the borders and edges of its plenary powers, and has passed the law with full knowledge of the facts and for the purpose of promoting what is right and advancing the welfare of the majority. Hence in determining whether the acts of the legislature are in tune with the fundamental law, courts should proceed with judicial restraint and act with caution and forbearance. Every intendment of the law must be adjudged by the courts in favor of its constitutionality, invalidity being a measure of last resort. In construing therefore the provisions of a statute, courts must first ascertain whether an interpretation is fairly possible to sidestep the question of constitutionality.

In La Union Credit Cooperative, Inc. v. Yaranon[4] we held that as long as there is some basis for the decision of the court, the constitutionality of the challenged law will not be touched and the case will be decided on other available grounds. Yet the force of the presumption is not sufficient to catapult a fundamentally deficient law into the safe environs of constitutionality. Of course, where the law clearly and palpably transgresses the hallowed domain of the organic law, it must be struck down on sight lest the positive commands of the fundamental law be unduly eroded. Verily, the onerous task of rebutting the presumption weighs heavily on the party challenging the validity of the statute. He must demonstrate beyond any tinge of doubt that there is indeed an infringement of the constitution, for absent sucha showing, there can be no finding of unconstitutionality. A doubt, even if wellfounded, will hardly suffice. As tersely put by Justice Malcolm, "To doubt is to sustain."[5] And petitioner has miserably failed in the instant case to discharge his burden and overcome the presumption of constitutionality of the Plunder Law. As it is written, the Plunder Law contains ascertainable standards and well-defined parameters which would enable the accused to determine the nature of his violation. Section 2 is sufficiently explicit in its description of the acts, conductand conditions required or forbidden, and prescribes the elements of the crime with reasonable certainty and particularity. Thus 1. That the offender is a public officer who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons; 2. That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the following overt or criminal acts: (a) through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (b) by receiving, directly or indirectly, any commission, gift, share, percentage, kickback or any other form of pecuniary benefits from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer; (c) by the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities of Government owned or controlled corporations or their subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; (e) by establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or (f) by taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines; and, 3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least P50,000,000.00. As long as the law affords some comprehensible guide or rule that would inform those who are subject to it what conduct would render them liable to its penalties, its validity will be sustained. It must sufficiently guide the judge in its application; the counsel, in defending one charged with its violation; and more importantly, the accused, in identifying the realm of the proscribed conduct. Indeed, it can be understood with little difficulty that what the assailed statute punishes is the act of a public officer in amassing or accumulating ill-gotten wealth of at least P50,000,000.00 through a series or combination of acts enumerated in Sec. 1, par. (d), of the Plunder Law. In fact, the amended Information itself closely tracks the language of the law, indicating with reasonable certainty the various elements of the offense which petitioner is alleged to have committed: "The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby accuses former PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, Joseph Ejercito Estrada, a.k.a. 'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE,' together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows: That during the period from June, 1998 to January 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS

OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR INFLUENCE, did then and there willfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount or TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (P4,097,804,173.17), more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows: (a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connection with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING; (b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit, public funds in the amount of ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion of the TWO HUNDRED MILLION PESOS (P200,000,000.00) tobacco excise tax share allocated for the province of Ilocos Sur under R.A. No. 7171, by himself and/or in connivance with co-accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES & JANE DOES; (italic supplied). (c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF STOCKS, MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS (P1,102,965,607.50) AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS (P744,612,450.00), RESPECTIVELY, OR A TOTAL OF MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS (P1,847,578,057.50); AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS (P189,700,000.00) MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME 'JOSE VELARDE;' (d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (P3,233,104,173.17) AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME 'JOSE VELARDE' AT THE EQUITABLE-PCI BANK." We discern nothing in the foregoing that is vague or ambiguous - as there is obviously none - that will confuse petitioner in his defense. Although subject to proof, these factual assertions clearly show that the elements of the crime are easily understood and provide adequate contrast between the innocent and the prohibited acts. Upon such unequivocal assertions, petitioner is completely informed of the accusations against him as to enable him to prepare for an intelligent defense. Petitioner, however, bewails the failure of the law to provide for the statutory definition of the terms "combination" and "series" in the key phrase "a combination or series of overt or criminal acts" found in Sec. 1, par. (d), and Sec. 2, and the word "pattern" in Sec. 4. These omissions, according to petitioner, render the

Plunder Law unconstitutional for being impermissibly vague and overbroad and deny him the right to be informed of the nature and cause of the accusation against him, hence, violative of his fundamental right to due process. The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain and void merely because general terms are used therein, or because of the employment of terms without defining them; [6] much less do we have to define every word we use. Besides, there is no positive constitutional or statutory command requiring the legislature to define each and every word in an enactment. Congress is not restricted in the form of expression of its will, and its inability to so define the words employed in a statute will not necessarily result in the vagueness or ambiguity of the law so long as the legislative will is clear, or at least, can be gathered from the whole act, which is distinctly expressed in the Plunder Law. Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in their natural, plain and ordinary acceptation and signification, [7] unless it is evident that the legislature intended a technical or special legal meaning to those words.[8] The intention of the lawmakers - who are, ordinarily, untrained philologists and lexicographers - to use statutory phraseology in such a manner is always presumed. Thus, Webster's New Collegiate Dictionary contains the following commonly accepted definition of the words "combination" and "series:" Combination - the result or product of combining; the act or process of combining. To combine is to bring into such close relationship as to obscure individual characters. Series - a number of things or events of the same class coming one after another in spatial and temporal succession. That Congress intended the words "combination" and "series" to be understood in their popular meanings is pristinely evident from the legislative deliberations on the bill which eventually became RA 7080 or the Plunder Law: DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May 1991 REP. ISIDRO: I am just intrigued again by our definition of plunder. We say THROUGH A COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF. Now when we say combination, we actually mean to say, if there are two or more means, we mean to say that number one and two or number one and something else are included, how about a series of the same act? For example, through misappropriation, conversion, misuse, will these be included also? REP. GARCIA: Yeah, because we say a series. REP. ISIDRO: Series. REP. GARCIA: Yeah, we include series. REP. ISIDRO: But we say we begin with a combination. REP. GARCIA: Yes. REP. ISIDRO: When we say combination, it seems that REP. GARCIA: Two. REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one enumeration. REP. GARCIA: No, no, not twice. REP. ISIDRO: Not twice? REP. GARCIA: Yes. Combination is not twice - but combination, two acts. REP. ISIDRO: So in other words, thats it. When we say combination, we mean, two different acts. It cannot be a repetition of the same act. REP. GARCIA: That be referred to series, yeah.

REP. ISIDRO: No, no. Supposing one act is repeated, so there are two. REP. GARCIA: A series. REP. ISIDRO: Thats not series. Its a combination. Because when we say combination or series, we seem to say that two or more, di ba? REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is why, I said, that is a very good suggestion because if it is only one act, it may fall under ordinary crime but we have here a combination or series of overt or criminal acts. So x x x x REP. GARCIA: Series. One after the other eh di.... SEN. TANADA: So that would fall under the term series? REP. GARCIA: Series, oo. REP. ISIDRO: Now, if it is a combination, ano, two misappropriations.... REP. GARCIA: Its not... Two misappropriations will not be combination. Series. REP. ISIDRO: So, it is not a combination? REP. GARCIA: Yes. REP. ISIDRO: When you say combination, two different? REP. GARCIA: Yes. SEN. TANADA: Two different. REP. ISIDRO: Two different acts. REP. GARCIA: For example, ha... REP. ISIDRO: Now a series, meaning, repetition... DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989 SENATOR MACEDA: In line with our interpellations that sometimes one or maybe even two acts may already result in such a big amount, on line 25, would the Sponsor consider deleting the words a series of overt or, to read, therefore: or conspiracy COMMITTED by criminal acts such as. Remove the idea of necessitating a series. Anyway, the criminal acts are in the plural. SENATOR TANADA: That would mean a combination of two or more of the acts mentioned in this. THE PRESIDENT: Probably two or more would be.... SENATOR MACEDA: Yes, because a series implies several or many; two or more. SENATOR TANADA: Accepted, Mr. President x x x x THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime. But when we say acts of plunder there should be, at least, two or more. SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President. Thus when the Plunder Law speaks of "combination," it is referring to at least two (2) acts falling under different categories of enumeration provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1, par. (d), subpar. (1), and fraudulent conveyance of assets belonging to the National Government under Sec. 1, par. (d), subpar. (3). On the other hand, to constitute a series" there must be two (2) or more overt or criminal acts falling under the same category of enumeration found in Sec. 1, par. (d), say, misappropriation, malversation and raids on the public treasury, allof which fall under Sec. 1, par. (d), subpar. (1). Verily, had the legislature intended a technical or distinctive meaning for "combination" and "series," it would have taken greater pains in specifically providing for it in the law.

As for "pattern," we agree with the observations of the Sandiganbayan[9] that this term is sufficiently defined in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a combination or series of overt or criminal acts enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law, the pattern of overt or criminal acts is directed towards a common purpose or goal which is to enable the public officer to amass, accumulate or acquire ill-gotten wealth. And thirdly, there must either be an 'overall unlawful scheme' or 'conspiracy' to achieve said common goal. As commonly understood, the term 'overall unlawful scheme' indicates a 'general plan of action or method' which the principal accused and public officer and others conniving with him follow to achieve the aforesaid common goal. In the alternative, if there is no such overall scheme or where the schemes or methods used by multiple accused vary, the overt or criminal acts must form part of a conspiracy to attain a common goal. Hence, it cannot plausibly be contended that the law does not give a fair warning and sufficient notice of what it seeks to penalize. Under the circumstances, petitioner's reliance on the "void-for-vagueness" doctrine is manifestly misplaced.The doctrine has been formulated in various ways, but is most commonly stated to the effect that a statute establishing a criminal offense must define the offense with sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited by the statute. It can only be invoked against that specie of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by construction. A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ in its application. In such instance, the statute is repugnant to the Constitution in two (2) respects - it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle. [10] But the doctrine does not apply as against legislations that are merely couched in imprecise language but which nonetheless specify a standard though defectively phrased; or to those that are apparently ambiguous yet fairly applicable to certain types of activities. The first may be "saved" by proper construction, while no challenge may be mounted as against the second whenever directed against such activities. [11] With more reason, the doctrine cannot be invoked where the assailed statute is clear and free from ambiguity, as in this case. The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice.[12] It must be stressed, however, that the "vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be upheld - not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly delineated. An act will not be held invalid merely because it might have been more explicit in its wordings or detailed in its provisions, especially where, because of the nature of the act, it would be impossible to provide all the details in advance as in all other statutes. Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V. Mendoza during the deliberations of the Court that the allegations that the Plunder Law is vague and overbroad do not justify a facial review of its validity The void-for-vagueness doctrine states that "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law."[13] The overbreadth doctrine, on the other hand, decrees that "a governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms."[14] A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity."[15] The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others

may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes. This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech. The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment."[16] In Broadrick v. Oklahoma,[17] the Court ruled that "claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it has been held that "a facial challenge to a legislative act is the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid."[18] As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others."[19] In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional."[20] As has been pointed out, "vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant." [21] Consequently, there is no basis for petitioner's claim that this Court review the Anti-Plunder Law on its face and in its entirety. Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might be applied to parties not before the Court whose activities are constitutionally protected. [22] It constitutes a departure from the case and controversy requirement of the Constitution and permits decisions to be made without concrete factual settings and in sterile abstract contexts.[23] But, as the U.S. Supreme Court pointed out in Younger v. Harris[24] [T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided. For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be employed "sparingly and only as a last resort,"[25] and is generally disfavored.[26] In determining the constitutionality of a statute, therefore, its provisions which are alleged to have been violated in a case must be examined in the light of the conduct with which the defendant is charged.[27] In light of the foregoing disquisition, it is evident that the purported ambiguity of the Plunder Law, so tenaciously claimed and argued at length by petitioner, is more imagined than real. Ambiguity, where none exists, cannot be created by dissecting parts and words in the statute to furnish support to critics who cavil at the want of scientific precision in the law. Every provision of the law should be construed in relation and with reference to every other part. To be sure, it will take more than nitpicking to overturn the well-entrenched presumption of constitutionality and validity of the Plunder Law. A fortiori, petitioner cannot feign ignorance of what the Plunder Law is all about. Being one of the Senators who voted for its passage, petitioner must be aware that the law was

extensively deliberated upon by the Senate and its appropriate committees by reason of which he even registered his affirmative vote with full knowledge of its legal implications and sound constitutional anchorage. The parallel case of Gallego v. Sandiganbayan[28] must be mentioned if only to illustrate and emphasize the point that courts are loathed to declare a statute void for uncertainty unless the law itself is so imperfect and deficient in its details, and is susceptible of no reasonable construction that will support and give it effect. In that case, petitioners Gallego and Agoncillo challenged the constitutionality of Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act for being vague.Petitioners posited, among others, that the term "unwarranted" is highly imprecise and elastic with no common law meaning or settled definition by prior judicial or administrative precedents; that, for its vagueness, Sec. 3, par. (e), violates due process in that it does not give fair warning or sufficient notice of what it seeks to penalize. Petitioners further argued that the Information charged them with three (3) distinct offenses, to wit: (a) giving of "unwarranted" benefits through manifest partiality; (b) giving of "unwarranted" benefits through evident bad faith; and, (c) giving of "unwarranted" benefits through gross inexcusable negligence while in the discharge of their official function and that their right to be informed of the nature and cause of the accusation against them was violated because they were left to guess which of the three (3) offenses, if not all, they were being charged and prosecuted. In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act does not suffer from the constitutional defect of vagueness. The phrases "manifest partiality," "evident bad faith," and "gross and inexcusable negligence" merely describe the different modes by which the offense penalized in Sec. 3, par. (e), of the statute may be committed, and the use of all these phrases in the same Information does not mean that the indictment charges three (3) distinct offenses. The word 'unwarranted' is not uncertain. It seems lacking adequate or official support; unjustified; unauthorized (Webster, Third International Dictionary, p. 2514); or without justification or adequate reason (Philadelphia Newspapers, Inc. v. US Dept. of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in Words and Phrases, Permanent Edition, Vol. 43-A 1978, Cumulative Annual Pocket Part, p. 19). The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a corrupt practice and make unlawful the act of the public officer in: x x x or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence, x x x (Section 3 [e], Rep. Act 3019, as amended). It is not at all difficult to comprehend that what the aforequoted penal provisions penalize is the act of a public officer, in the discharge of his official, administrative or judicial functions, in giving any private party benefits, advantage or preference which is unjustified, unauthorized or without justification or adequate reason, through manifest partiality, evident bad faith or gross inexcusable negligence. In other words, this Court found that there was nothing vague or ambiguous in the use of the term "unwarranted" in Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act, which was understood in its primary and general acceptation.Consequently, in that case, petitioners' objection thereto was held inadequate to declare the section unconstitutional. On the second issue, petitioner advances the highly stretched theory that Sec. 4 of the Plunder Law circumvents the immutable obligation of the prosecution to prove beyond reasonable doubt the predicate acts constituting the crime of plunder when it requires only proof of a pattern of overt or criminal acts showing unlawful scheme or conspiracy SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy. The running fault in this reasoning is obvious even to the simplistic mind. In a criminal prosecution for plunder, as in all other crimes, the accused always has in his favor the presumption of innocence which is guaranteed by the Bill of Rights, and unless the State succeeds in demonstrating by proof beyond reasonable doubt that culpability lies, the accused is entitled to an acquittal. [29] The use of the "reasonable doubt" standard is

indispensable to command the respect and confidence of the community in the application of criminal law. It is critical that the moral force of criminal law be not diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs has confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty. This "reasonable doubt" standard has acquired such exalted stature in the realm of constitutional law as it gives life to the Due Process Clause which protects the accused against conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime with which he is charged.[30] The following exchanges between Rep. Rodolfo Albano and Rep. Pablo Garcia on this score during the deliberations in the floor of the House of Representatives are elucidating DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9 October 1990 MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law that what is alleged in the information must be proven beyond reasonable doubt. If we will prove only one act and find him guilty of the other acts enumerated in the information, does that not work against the right of the accused especially so if the amount committed, say, by falsification is less than P100 million, but the totality of the crime committed is P100 million since there is malversation, bribery, falsification of public document, coercion, theft? MR. GARCIA: Mr. Speaker, not everything alleged in the information needs to be proved beyond reasonable doubt. What is required to be proved beyond reasonable doubt is every element of the crime charged. For example, Mr. Speaker, there is an enumeration of the things taken by the robber in the information three pairs of pants, pieces of jewelry. These need not be proved beyond reasonable doubt, but these will not prevent the conviction of a crime for which he was charged just because, say, instead of 3 pairs of diamond earrings the prosecution proved two. Now, what is required to be proved beyond reasonable doubt is the element of the offense. MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the crime of plunder the totality of the amount is very important, I feel that such a series of overt criminal acts has to be taken singly. For instance, in the act of bribery, he was able to accumulate only P50,000 and in the crime of extortion, he was only able to accumulate P1 million. Now, when we add the totality of the other acts as required under this bill through the interpretation on the rule of evidence, it is just one single act, so how can we now convict him? MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an essential element of the crime, there is a need to prove that element beyond reasonable doubt. For example, one essential element of the crime is that the amount involved is P100 million.Now, in a series of defalcations and other acts of corruption in the enumeration the total amount would be P110 or P120 million, but there are certain acts that could not be proved, so, we will sum up the amounts involved in those transactions which were proved. Now, if the amount involved in these transactions, proved beyond reasonable doubt, is P100 million, then there is a crime of plunder (underscoring supplied). It is thus plain from the foregoing that the legislature did not in any manner refashion the standard quantum of proof in the crime of plunder. The burden still remains with the prosecution to prove beyond any iota of doubt every fact or element necessary to constitute the crime. The thesis that Sec. 4 does away with proof of each and every component of the crime suffers from a dismal misconception of the import of that provision. What the prosecution needs to prove beyond reasonable doubt is only a number of acts sufficient to form a combination or series which would constitute a pattern and involving an amount of at least P50,000,000.00. There is no need to prove each and every other act alleged in the Information to have been committed by the accused in furtherance of the overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth. To illustrate, supposing that the accused is charged in an Information for plunder with having committed fifty (50) raids on the public treasury. The prosecution need not prove all these fifty (50) raids, it being sufficient to prove by pattern at least two (2) of the raids beyond reasonable doubt provided only that they amounted to at least P50,000,000.00.[31] A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion that "pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy" inheres in the very acts of accumulating, acquiring or amassing hidden wealth. Stated otherwise, such pattern arises where the prosecution is able to prove beyond reasonable doubt the predicate acts as defined in Sec. 1, par. (d). Pattern is merely a by-product of

the proof of the predicate acts. This conclusion is consistent with reason and common sense. There would be no other explanation for a combination or series of overt or criminal acts to stash P50,000,000.00 or more, than "a scheme or conspiracy to amass, accumulate or acquire ill gotten wealth." The prosecution is therefore not required to make a deliberate and conscious effort to prove pattern as it necessarily follows with the establishment of a series or combination of the predicate acts. Relative to petitioner's contentions on the purported defect of Sec. 4 is his submission that "pattern" is "a very important element of the crime of plunder;" and that Sec. 4 is "two pronged, (as) it contains a rule of evidence and a substantive element of the crime," such that without it the accused cannot be convicted of plunder JUSTICE BELLOSILLO: In other words, cannot an accused be convicted under the Plunder Law without applying Section 4 on the Rule of Evidence if there is proof beyond reasonable doubt of the commission of the acts complained of? ATTY. AGABIN: In that case he can be convicted of individual crimes enumerated in the Revised Penal Code, but not plunder. JUSTICE BELLOSILLO: In other words, if all the elements of the crime are proved beyond reasonable doubt without applying Section 4, can you not have a conviction under the Plunder Law? ATTY. AGABIN: Not a conviction for plunder, your Honor. JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in convicting an accused charged for violation of the Plunder Law? ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a substantive element of the law x x x x JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4 when there is proof beyond reasonable doubt on the acts charged constituting plunder? ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it contains a rule of evidence and it contains a substantive element of the crime of plunder. So, there is no way by which we can avoid Section 4. JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar as the predicate crimes charged are concerned that you do not have to go that far by applying Section 4? ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very important element of the crime of plunder and that cannot be avoided by the prosecution.[32] We do not subscribe to petitioner's stand. Primarily, all the essential elements of plunder can be culled and understood from its definition in Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of them. Moreover, the epigraph and opening clause of Sec. 4 is clear and unequivocal: SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder x x x x It purports to do no more than prescribe a rule of procedure for the prosecution of a criminal case for plunder. Being a purely procedural measure, Sec. 4 does not define or establish any substantive right in favor of the accused but only operates in furtherance of a remedy. It is only a means to an end, an aid to substantive law. Indubitably, even without invoking Sec. 4, a conviction for plunder may be had, for what is crucial for the prosecution is to present sufficient evidence to engender that moral certitude exacted by the fundamental law to prove the guilt of the accused beyond reasonable doubt. Thus, even granting for the sake of argument that Sec. 4 is flawed and vitiated for the reasons advanced by petitioner, it may simply be severed from the rest of the provisions without necessarily resulting in the demise of the law; after all, the existing rules on evidence can supplant Sec. 4 more than enough. Besides, Sec. 7 of RA 7080 provides for a separability clause Sec. 7. Separability of Provisions. - If any provisions of this Act or the application thereof to any person or circumstance is held invalid, the remaining provisions of this Act and the application of such provisions to other persons or circumstances shall not be affected thereby.

Implicit in the foregoing section is that to avoid the whole act from being declared invalid as a result of the nullity of some of its provisions, assuming that to be the case although it is not really so, all the provisions thereof should accordingly be treated independently of each other, especially if by doing so, the objectives of the statute can best be achieved. As regards the third issue, again we agree with Justice Mendoza that plunder is a malum in se which requires proof of criminal intent. Thus, he says, in his Concurring Opinion x x x Precisely because the constitutive crimes are mala in se the element of mens rea must be proven in a prosecution for plunder. It is noteworthy that the amended information alleges that the crime of plunder was committed "willfully, unlawfully and criminally." It thus alleges guilty knowledge on the part of petitioner. In support of his contention that the statute eliminates the requirement of mens rea and that is the reason he claims the statute is void, petitioner cites the following remarks of Senator Taada made during the deliberation on S.B. No. 733: SENATOR TAADA . . . And the evidence that will be required to convict him would not be evidence for each and every individual criminal act but only evidence sufficient to establish the conspiracy or scheme to commit this crime of plunder.[33] However, Senator Taada was discussing 4 as shown by the succeeding portion of the transcript quoted by petitioner: SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in Section 4, Rule of Evidence, which, in the Gentleman's view, would provide for a speedier and faster process of attending to this kind of cases? SENATOR TAADA: Yes, Mr. President . . .[34] Senator Taada was only saying that where the charge is conspiracy to commit plunder, the prosecution need not prove each and every criminal act done to further the scheme or conspiracy, it being enough if it proves beyond reasonable doubt a pattern of overt or ciminal acts indicative of the overall unlawful scheme or conspiracy. As far as the acts constituting the pattern are concerned, however, the elements of the crime must be proved and the requisite mens rea must be shown. Indeed, 2 provides that Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court. The application of mitigating and extenuating circumstances in the Revised Penal Code to prosecutions under the Anti-Plunder Law indicates quite clearly that mens rea is an element of plunder since the degree of responsibility of the offender is determined by his criminal intent. It is true that 2 refers to "any person who participates with the said public officer in the commission of an offense contributing to the crime of plunder." There is no reason to believe, however, that it does not apply as well to the public officer as principal in the crime. As Justice Holmes said: "We agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean." [35] Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have been resolved in the affirmative by the decision of Congress in 1993 to include it among the heinous crimes punishable by reclusion perpetua to death. Other heinous crimes are punished with death as a straight penalty in R.A. No. 7659. Referring to these groups of heinous crimes, this Court held in People v. Echegaray:[36] The evil of a crime may take various forms. There are crimes that are, by their very nature, despicable, either because life was callously taken or the victim is treated like an animal and utterly dehumanized as to completely

disrupt the normal course of his or her growth as a human being . . . . Seen in this light, the capital crimes of kidnapping and serious illegal detention for ransom resulting in the death of the victim or the victim is raped, tortured, or subjected to dehumanizing acts; destructive arson resulting in death; and drug offenses involving minors or resulting in the death of the victim in the case of other crimes; as well as murder, rape, parricide, infanticide, kidnapping and serious illegal detention, where the victim is detained for more than three days or serious physical injuries were inflicted on the victim or threats to kill him were made or the victim is a minor, robbery with homicide, rape or intentional mutilation, destructive arson, and carnapping where the owner, driver or occupant of the carnapped vehicle is killed or raped, which are penalized by reclusion perpetua to death, are clearly heinous by their very nature. There are crimes, however, in which the abomination lies in the significance and implications of the subject criminal acts in the scheme of the larger socio-political and economic context in which the state finds itself to be struggling to develop and provide for its poor and underprivileged masses. Reeling from decades of corrupt tyrannical rule that bankrupted the government and impoverished the population, the Philippine Government must muster the political will to dismantle the culture of corruption, dishonesty, greed and syndicated criminality that so deeply entrenched itself in the structures of society and the psyche of the populace. [With the government] terribly lacking the money to provide even the most basic services to its people, any form of misappropriation or misapplication of government funds translates to an actual threat to the very existence of government, and in turn, the very survival of the people it governs over. Viewed in this context, no less heinous are the effects and repercussions of crimes like qualified bribery, destructive arson resulting in death, and drug offenses involving government officials, employees or officers, that their perpetrators must not be allowed to cause further destruction and damage to society. The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a malum in se. For when the acts punished are inherently immoral or inherently wrong, they are mala in se[37] and it does not matter that such acts are punished in a special law, especially since in the case of plunder the predicate crimes are mainly mala in se. Indeed, it would be absurd to treat prosecutions for plunder as though they are mere prosecutions for violations of the Bouncing Check Law (B.P. Blg. 22) or of an ordinance against jaywalking, without regard to the inherent wrongness of the acts. To clinch, petitioner likewise assails the validity of RA 7659, the amendatory law of RA 7080, on constitutional grounds. Suffice it to say however that it is now too late in the day for him to resurrect this long dead issue, the same having been eternally consigned by People v. Echegaray[38] to the archives of jurisprudential history. The declaration of this Court therein that RA 7659 is constitutionally valid stands as a declaration of the State, and becomes, by necessary effect, assimilated in the Constitution now as an integral part of it. Our nation has been racked by scandals of corruption and obscene profligacy of officials in high places which have shaken its very foundation. The anatomy of graft and corruption has become more elaborate in the corridors of time as unscrupulous people relentlessly contrive more and more ingenious ways to bilk the coffers of the government. Drastic and radical measures are imperative to fight the increasingly sophisticated, extraordinarily methodical and economicallycatastrophic looting of the national treasury. Such is the Plunder Law, especially designed to disentangle those ghastly tissues of grand-scale corruption which, if left unchecked, will spread like a malignant tumor and ultimately consume the moral and institutional fiber of our nation. The Plunder Law, indeed, is a living testament to the will of the legislature to ultimately eradicate this scourge and thus secure society against the avarice and other venalities in public office. These are times that try men's souls. In the checkered history of this nation, few issues of national importance can equal the amount of interest and passion generated by petitioner's ignominious fall from the highest office, and his eventual prosecution and trial under a virginal statute. This continuing saga has driven a wedge of dissension among our people that may linger for a long time. Only by responding to the clarion call for patriotism, to rise above factionalism and prejudices, shall we emerge triumphant in the midst of ferment. PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known as the Plunder Law, as amended by RA 7659, is CONSTITUTIONAL. Consequently, the petition to declare the law unconstitutional is DISMISSED for lack of merit. SO ORDERED.

G.R. No. 209287

July 1, 2014

MARIA CAROLINA P. ARAULLO, CHAIRPERSON, BAGONG ALYANSANG MAKABAYAN; JUDY M. TAGUIWALO, PROFESSOR, UNIVERSITY OF THE PHILIPPINES DILIMAN, CO-CHAIRPERSON, PAGBABAGO; HENRI KAHN, CONCERNED CITIZENS MOVEMENT; REP. LUZ ILAGAN, GABRIELA WOMEN'S PARTY REPRESENTATIVE; REP. CARLOS ISAGANI ZARATE, BAY AN MUNA PARTY-LIST REPRESENTATIVE; RENATO M. REYES, JR., SECRETARY GENERAL OF BAYAN; MANUEL K. DAYRIT, CHAIRMAN, ANG KAPATIRAN PARTY; VENCER MARI E. CRISOSTOMO, CHAIRPERSON, ANAKBAYAN; VICTOR VILLANUEVA, CONVENOR, YOUTH ACT NOW, Petitioners, vs. BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES; PAQUITO N. OCHOA, JR., EXECUTIVE SECRETARY; AND FLORENCIO B. ABAD, SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents. x-----------------------x G.R. No. 209135 AUGUSTO L. SY JUCO JR., Ph.D., Petitioner, vs. FLORENCIO B. ABAD, IN HIS CAPACITY AS THE SECRETARY OF DEPARTMENT OF BUDGET AND MANAGEMENT; AND HON. FRANKLIN MAGTUNAO DRILON, IN HIS CAP A CITY AS THE SENATE PRESIDENT OF THE PHILIPPINES, Respondents. x-----------------------x G.R. No. 209136 MANUELITO R. LUNA, Petitioner, vs. SECRETARY FLORENCIO ABAD, IN HIS OFFICIAL CAPACITY AS HEAD OF THE DEPARTMENT OF BUDGET AND MANAGEMENT; AND EXECUTIVE SECRETARY PAQUITO OCHOA, IN HIS OFFICIAL CAPACITY AS ALTER EGO OF THE PRESIDENT, Respondents. x-----------------------x G.R. No. 209155 ATTY. JOSE MALV AR VILLEGAS, JR., Petitioner, vs. THE HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.; AND THE SECRETARY OF BUDGET AND MANAGEMENT FLORENCIO B. ABAD, Respondents. x-----------------------x G.R. No. 209164 PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), REPRESENTED BY DEAN FROILAN M. BACUNGAN, BENJAMIN E. DIOKNO AND LEONOR M. BRIONES, Petitioners, vs. DEPARTMENT OF BUDGET AND MANAGEMENT AND/OR HON. FLORENCIO B. ABAD, Respondents. x-----------------------x

G.R. No. 209260 INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioner, vs. SECRETARY FLORENCIO B. ABAD OF THE DEPARTMENT OF BUDGET AND MANAGEMENT (DBM),Respondent. x-----------------------x G.R. No. 209442 GRECO ANTONIOUS BEDA B. BELGICA; BISHOP REUBEN MABANTE AND REV. JOSE L. GONZALEZ,Petitioners, vs. PRESIDENT BENIGNO SIMEON C. AQUINO III, THE SENATE OF THE PHILIPPINES, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON; THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER FELICIANO BELMONTE, JR.; THE EXECUTIVE OFFICE, REPRESENTED BY EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.; THE DEPARTMENT OF BUDGET AND MANAGEMENT, REPRESENTED BY SECRETARY FLORENCIO ABAD; THE DEPARTMENT OF FINANCE, REPRESENTED BY SECRETARY CESAR V. PURISIMA; AND THE BUREAU OF TREASURY, REPRESENTED BY ROSALIA V. DE LEON, Respondents. x-----------------------x G.R. No. 209517 CONFEDERATION FOR UNITY, RECOGNITION AND ADV AN CEMENT OF GOVERNMENT EMPLOYEES (COURAGE), REPRESENTED BY ITS 1ST VICE PRESIDENT, SANTIAGO DASMARINAS, JR.; ROSALINDA NARTATES, FOR HERSELF AND AS NATIONAL PRESIDENT OF THE CONSOLIDATED UNION OF EMPLOYEES NATIONAL HOUSING AUTHORITY (CUENHA); MANUEL BACLAGON, FOR HIMSELF AND AS PRESIDENT OF THE SOCIAL WELFARE EMPLOYEES ASSOCIATION OF THE PHILIPPINES, DEPARTMENT OF SOCIAL WELFARE AND DEVELOPMENT CENTRAL OFFICE (SWEAP-DSWD CO); ANTONIA PASCUAL, FOR HERSELF AND AS NATIONAL PRESIDENT OF THE DEPARTMENT OF AGRARIAN REFORM EMPLOYEES ASSOCIATION (DAREA); ALBERT MAGALANG, FOR HIMSELF AND AS PRESIDENT OF THE ENVIRONMENT AND MANAGEMENT BUREAU EMPLOYEES UNION (EMBEU); AND MARCIAL ARABA, FOR HIMSELF AND AS PRESIDENT OF THE KAPISANAN PARA SA KAGALINGAN NG MGA KAW ANI NG MMDA (KKKMMDA), Petitioners, vs. BENIGNO SIMEON C. AQUINO Ill, PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES; PAQUITO OCHOA, JR., EXECUTIVE SECRETARY; AND HON. FLORENCIO B. ABAD, SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents. x-----------------------x G.R. No. 209569 VOLUNTEERS AGAINST CRIME AND CORRUPTION (VACC), REPRESENTED BY DANTE L. JIMENEZ,Petitioner, vs. PAQUITO N. OCHOA, EXECUTIVE SECRETARY, AND FLORENCIO B. ABAD, SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents. DECISION BERSAMIN, J.:

For resolution are the consolidated petitions assailing the constitutionality of the Disbursement Acceleration Program(DAP), National Budget Circular (NBC) No. 541, and related issuances of the Department of Budget and Management (DBM) implementing the DAP. At the core of the controversy is Section 29(1) of Article VI of the 1987 Constitution, a provision of the fundamental law that firmly ordains that "[n]o money shall be paid out of the Treasury except in pursuance of an appropriation made by law." The tenor and context of the challenges posed by the petitioners against the DAP indicate that the DAP contravened this provision by allowing the Executive to allocate public money pooled from programmed and unprogrammed funds of its various agencies in the guise of the President exercising his constitutional authority under Section 25(5) of the 1987 Constitution to transfer funds out of savings to augment the appropriations of offices within the Executive Branch of the Government. But the challenges are further complicated by the interjection of allegations of transfer of funds to agencies or offices outside of the Executive. Antecedents What has precipitated the controversy? On September 25, 2013, Sen. Jinggoy Ejercito Estrada delivered a privilege speech in the Senate of the Philippines to reveal that some Senators, including himself, had been allotted an additional ₱50 Million each as "incentive" for voting in favor of the impeachment of Chief Justice Renato C. Corona. Responding to Sen. Estrada’s revelation, Secretary Florencio Abad of the DBM issued a public statement entitled Abad: Releases to Senators Part of Spending Acceleration Program,1 explaining that the funds released to the Senators had been part of the DAP, a program designed by the DBM to ramp up spending to accelerate economic expansion. He clarified that the funds had been released to the Senators based on their letters of request for funding; and that it was not the first time that releases from the DAP had been made because the DAP had already been instituted in 2011 to ramp up spending after sluggish disbursements had caused the growth of the gross domestic product (GDP) to slow down. He explained that the funds under the DAP were usually taken from (1) unreleased appropriations under Personnel Services;2 (2) unprogrammed funds; (3) carry-over appropriations unreleased from the previous year; and (4) budgets for slow-moving items or projects that had been realigned to support faster-disbursing projects. The DBM soon came out to claim in its website3 that the DAP releases had been sourced from savings generated by the Government, and from unprogrammed funds; and that the savings had been derived from (1) the pooling of unreleased appropriations, like unreleased Personnel Services 4 appropriations that would lapse at the end of the year, unreleased appropriations of slow-moving projects and discontinued projects per zero based budgeting findings;5 and (2) the withdrawal of unobligated allotments also for slow-moving programs and projects that had been earlier released to the agencies of the National Government. The DBM listed the following as the legal bases for the DAP’s use of savings,6 namely: (1) Section 25(5), Article VI of the 1987 Constitution, which granted to the President the authority to augment an item for his office in the general appropriations law; (2) Section 49 (Authority to Use Savings for Certain Purposes) and Section 38 (Suspension of Expenditure Appropriations), Chapter 5, Book VI of Executive Order (EO) No. 292 (Administrative Code of 1987); and (3) the General Appropriations Acts (GAAs) of 2011, 2012 and 2013, particularly their provisions on the (a) use of savings; (b) meanings of savings and augmentation; and (c) priority in the use of savings. As for the use of unprogrammed funds under the DAP, the DBM cited as legal bases the special provisions on unprogrammed fund contained in the GAAs of 2011, 2012 and 2013. The revelation of Sen. Estrada and the reactions of Sec. Abad and the DBM brought the DAP to the consciousness of the Nation for the first time, and made this present controversy inevitable. That the issues against the DAP came at a time when the Nation was still seething in anger over Congressional pork barrel – "an appropriation of government spending meant for localized projects and secured solely or primarily to bring money to a representative’s district"7 – excited the Nation as heatedly as the pork barrel controversy.

Nine petitions assailing the constitutionality of the DAP and the issuances relating to the DAP were filed within days of each other, as follows: G.R. No. 209135 (Syjuco), on October 7, 2013; G.R. No. 209136 (Luna), on October 7, 2013; G.R. No. 209155 (Villegas),8 on October 16, 2013; G.R. No. 209164 (PHILCONSA), on October 8, 2013; G.R. No. 209260 (IBP), on October 16, 2013; G.R. No. 209287 (Araullo), on October 17, 2013; G.R. No. 209442 (Belgica), on October 29, 2013; G.R. No. 209517 (COURAGE), on November6, 2013; and G.R. No. 209569 (VACC), on November 8, 2013. In G.R. No. 209287 (Araullo), the petitioners brought to the Court’s attention NBC No. 541 (Adoption of Operational Efficiency Measure – Withdrawal of Agencies’ Unobligated Allotments as of June 30, 2012), alleging that NBC No. 541, which was issued to implement the DAP, directed the withdrawal of unobligated allotments as of June 30, 2012 of government agencies and offices with low levels of obligations, both for continuing and current allotments. In due time, the respondents filed their Consolidated Comment through the Office of the Solicitor General (OSG). The Court directed the holding of oral arguments on the significant issues raised and joined. Issues Under the Advisory issued on November 14, 2013, the presentations of the parties during the oral arguments were limited to the following, to wit: Procedural Issue: A. Whether or not certiorari, prohibition, and mandamus are proper remedies to assail the constitutionality and validity of the Disbursement Acceleration Program (DAP), National Budget Circular (NBC) No. 541, and all other executive issuances allegedly implementing the DAP. Subsumed in this issue are whether there is a controversy ripe for judicial determination, and the standing of petitioners. Substantive Issues: B. Whether or not the DAP violates Sec. 29, Art. VI of the 1987 Constitution, which provides: "No money shall be paid out of the Treasury except in pursuance of an appropriation made by law." C. Whether or not the DAP, NBC No. 541, and all other executive issuances allegedly implementing the DAP violate Sec. 25(5), Art. VI of the 1987 Constitution insofar as: (a)They treat the unreleased appropriations and unobligated allotments withdrawn from government agencies as "savings" as the term is used in Sec. 25(5), in relation to the provisions of the GAAs of 2011, 2012 and 2013; (b)They authorize the disbursement of funds for projects or programs not provided in the GAAs for the Executive Department; and (c)They "augment" discretionary lump sum appropriations in the GAAs. D. Whether or not the DAP violates: (1) the Equal Protection Clause, (2) the system of checks and balances, and (3) the principle of public accountability enshrined in the 1987 Constitution considering that it authorizes the release of funds upon the request of legislators. E. Whether or not factual and legal justification exists to issue a temporary restraining order to restrain the implementation of the DAP, NBC No. 541, and all other executive issuances allegedly implementing the DAP. In its Consolidated Comment, the OSG raised the matter of unprogrammed funds in order to support its argument regarding the President’s power to spend. During the oral arguments, the propriety of releasing unprogrammed funds to support projects under the DAP was considerably discussed. The petitioners in G.R. No. 209287

(Araullo) and G.R. No. 209442 (Belgica) dwelled on unprogrammed funds in their respective memoranda. Hence, an additional issue for the oral arguments is stated as follows: F. Whether or not the release of unprogrammed funds under the DAP was in accord with the GAAs. During the oral arguments held on November 19, 2013, the Court directed Sec. Abad to submit a list of savings brought under the DAP that had been sourced from (a) completed programs; (b) discontinued or abandoned programs; (c) unpaid appropriations for compensation; (d) a certified copy of the President’s directive dated June 27, 2012 referred to in NBC No. 541; and (e) all circulars or orders issued in relation to the DAP. 9 In compliance, the OSG submitted several documents, as follows: (1) A certified copy of the Memorandum for the President dated June 25, 2012 (Omnibus Authority to Consolidate Savings/Unutilized Balances and their Realignment); 10 (2) Circulars and orders, which the respondents identified as related to the DAP, namely: a. NBC No. 528 dated January 3, 2011 (Guidelines on the Release of Funds for FY 2011); b. NBC No. 535 dated December 29, 2011 (Guidelines on the Release of Funds for FY 2012); c. NBC No. 541 dated July 18, 2012 (Adoption of Operational Efficiency Measure – Withdrawal of Agencies’ Unobligated Allotments as of June 30, 2012); d. NBC No. 545 dated January 2, 2013 (Guidelines on the Release of Funds for FY 2013); e. DBM Circular Letter No. 2004-2 dated January 26, 2004 (Budgetary Treatment of Commitments/Obligations of the National Government); f. COA-DBM Joint Circular No. 2013-1 dated March 15, 2013 (Revised Guidelines on the Submission of Quarterly Accountability Reports on Appropriations, Allotments, Obligations and Disbursements); g. NBC No. 440 dated January 30, 1995 (Adoption of a Simplified Fund Release System in the Government). (3) A breakdown of the sources of savings, including savings from discontinued projects and unpaid appropriations for compensation from 2011 to 2013 On January 28, 2014, the OSG, to comply with the Resolution issued on January 21, 2014 directing the respondents to submit the documents not yet submitted in compliance with the directives of the Court or its Members, submitted several evidence packets to aid the Court in understanding the factual bases of the DAP, to wit: (1) First Evidence Packet11 – containing seven memoranda issued by the DBM through Sec. Abad, inclusive of annexes, listing in detail the 116 DAP identified projects approved and duly signed by the President, as follows: a. Memorandum for the President dated October 12, 2011 (FY 2011 Proposed Disbursement Acceleration Program (Projects and Sources of Funds); b. Memorandum for the President dated December 12, 2011 (Omnibus Authority to Consolidate Savings/Unutilized Balances and its Realignment);

c. Memorandum for the President dated June 25, 2012 (Omnibus Authority to Consolidate Savings/Unutilized Balances and their Realignment); d. Memorandum for the President dated September 4, 2012 (Release of funds for other priority projects and expenditures of the Government); e. Memorandum for the President dated December 19, 2012 (Proposed Priority Projects and Expenditures of the Government); f. Memorandum for the President dated May 20, 2013 (Omnibus Authority to Consolidate Savings/Unutilized Balances and their Realignment to Fund the Quarterly Disbursement Acceleration Program); and g. Memorandum for the President dated September 25, 2013 (Funding for the Task Force Pablo Rehabilitation Plan). (2) Second Evidence Packet12 – consisting of 15 applications of the DAP, with their corresponding Special Allotment Release Orders (SAROs) and appropriation covers; (3) Third Evidence Packet13 – containing a list and descriptions of 12 projects under the DAP; (4) Fourth Evidence Packet14 – identifying the DAP-related portions of the Annual Financial Report (AFR) of the Commission on Audit for 2011 and 2012; (5) Fifth Evidence Packet15 – containing a letter of Department of Transportation and Communications(DOTC) Sec. Joseph Abaya addressed to Sec. Abad recommending the withdrawal of funds from his agency, inclusive of annexes; and (6) Sixth Evidence Packet16 – a print-out of the Solicitor General’s visual presentation for the January 28, 2014 oral arguments. On February 5, 2014,17 the OSG forwarded the Seventh Evidence Packet,18 which listed the sources of funds brought under the DAP, the uses of such funds per project or activity pursuant to DAP, and the legal bases thereof. On February 14, 2014, the OSG submitted another set of documents in further compliance with the Resolution dated January 28, 2014, viz: (1) Certified copies of the certifications issued by the Bureau of Treasury to the effect that the revenue collections exceeded the original revenue targets for the years 2011, 2012 and 2013, including collections arising from sources not considered in the original revenue targets, which certifications were required for the release of the unprogrammed funds as provided in Special Provision No. 1 of Article XLV, Article XVI, and Article XLV of the 2011, 2012 and 2013 GAAs; and (2) A report on releases of savings of the Executive Department for the use of the Constitutional Commissions and other branches of the Government, as well as the fund releases to the Senate and the Commission on Elections (COMELEC). RULING I. Procedural Issue: a) The petitions under Rule 65 are proper remedies

All the petitions are filed under Rule 65 of the Rules of Court, and include applications for the issuance of writs of preliminary prohibitory injunction or temporary restraining orders. More specifically, the nature of the petitions is individually set forth hereunder, to wit: G.R. No. 209135 (Syjuco)

Certiorari, Prohibition and Mandamus

G.R. No. 209136 (Luna)

Certiorariand Prohibition

G.R. No. 209155 (Villegas)

Certiorariand Prohibition

G.R. No. 209164 (PHILCONSA) Certiorariand Prohibition G.R. No. 209260 (IBP)

Prohibition

G.R. No. 209287 (Araullo)

Certiorariand Prohibition

G.R. No. 209442 (Belgica)

Certiorari

G.R. No. 209517 (COURAGE)

Certiorari and Prohibition

G.R. No. 209569 (VACC)

Certiorari and Prohibition

The respondents submit that there is no actual controversy that is ripe for adjudication in the absence of adverse claims between the parties;19 that the petitioners lacked legal standing to sue because no allegations were made to the effect that they had suffered any injury as a result of the adoption of the DAP and issuance of NBC No. 541; that their being taxpayers did not immediately confer upon the petitioners the legal standing to sue considering that the adoption and implementation of the DAP and the issuance of NBC No. 541 were not in the exercise of the taxing or spending power of Congress;20 and that even if the petitioners had suffered injury, there were plain, speedy and adequate remedies in the ordinary course of law available to them, like assailing the regularity of the DAP and related issuances before the Commission on Audit (COA) or in the trial courts. 21 The respondents aver that the special civil actions of certiorari and prohibition are not proper actions for directly assailing the constitutionality and validity of the DAP, NBC No. 541, and the other executive issuances implementing the DAP.22 In their memorandum, the respondents further contend that there is no authorized proceeding under the Constitution and the Rules of Court for questioning the validity of any law unless there is an actual case or controversy the resolution of which requires the determination of the constitutional question; that the jurisdiction of the Court is largely appellate; that for a court of law to pass upon the constitutionality of a law or any act of the Government when there is no case or controversy is for that court to set itself up as a reviewer of the acts of Congress and of the President in violation of the principle of separation of powers; and that, in the absence of a pending case or controversy involving the DAP and NBC No. 541, any decision herein could amount to a mere advisory opinion that no court can validly render.23 The respondents argue that it is the application of the DAP to actual situations that the petitioners can question either in the trial courts or in the COA; that if the petitioners are dissatisfied with the ruling either of the trial courts or of the COA, they can appeal the decision of the trial courts by petition for review on certiorari, or assail the decision or final order of the COA by special civil action for certiorari under Rule 64 of the Rules of Court. 24 The respondents’ arguments and submissions on the procedural issue are bereft of merit. Section 1, Article VIII of the 1987 Constitution expressly provides: Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. Thus, the Constitution vests judicial power in the Court and in such lower courts as may be established by law. In creating a lower court, Congress concomitantly determines the jurisdiction of that court, and that court, upon its creation, becomes by operation of the Constitution one of the repositories of judicial power. 25 However, only the Court is a constitutionally created court, the rest being created by Congress in its exercise of the legislative power. The Constitution states that judicial power includes the duty of the courts of justice not only "to settle actual controversies involving rights which are legally demandable and enforceable" but also "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." It has thereby expanded the concept of judicial power, which up to then was confined to its traditional ambit of settling actual controversies involving rights that were legally demandable and enforceable. The background and rationale of the expansion of judicial power under the 1987 Constitution were laid out during the deliberations of the 1986 Constitutional Commission by Commissioner Roberto R. Concepcion (a former Chief Justice of the Philippines) in his sponsorship of the proposed provisions on the Judiciary, where he said:– The Supreme Court, like all other courts, has one main function: to settle actual controversies involving conflicts of rights which are demandable and enforceable. There are rights which are guaranteed by law but cannot be enforced by a judicial party. In a decided case, a husband complained that his wife was unwilling to perform her duties as a wife. The Court said: "We can tell your wife what her duties as such are and that she is bound to comply with them, but we cannot force her physically to discharge her main marital duty to her husband. There are some rights guaranteed by law, but they are so personal that to enforce them by actual compulsion would be highly derogatory to human dignity." This is why the first part of the second paragraph of Section 1 provides that: Judicial power includes the duty of courts to settle actual controversies involving rights which are legally demandable or enforceable… The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a presidential system of government, the Supreme Court has, also, another important function. The powers of government are generally considered divided into three branches: the Legislative, the Executive and the Judiciary. Each one is supreme within its own sphere and independent of the others. Because of that supremacy power to determine whether a given law is valid or not is vested in courts of justice. Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgmenton matters of this nature. This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question. (Bold emphasis supplied)26 Upon interpellation by Commissioner Nolledo, Commissioner Concepcion clarified the scope of judicial power in the following manner:– MR. NOLLEDO. x x x The second paragraph of Section 1 states: "Judicial power includes the duty of courts of justice to settle actual controversies…" The term "actual controversies" according to the Commissioner should refer to questions which are political in nature and, therefore, the courts should not refuse to decide those political questions. But do I understand it right that this is restrictive or only an example? I know there are cases which are not actual yet the court can assume jurisdiction. An example is the petition for declaratory relief.

May I ask the Commissioner’s opinion about that? MR. CONCEPCION. The Supreme Court has no jurisdiction to grant declaratory judgments. MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power is not vested in the Supreme Court alone but also in other lower courts as may be created by law. MR. CONCEPCION. Yes. MR. NOLLEDO. And so, is this only an example? MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify political questions with jurisdictional questions. But there is a difference. MR. NOLLEDO. Because of the expression "judicial power"? MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but where there is a question as to whether the government had authority or had abused its authority to the extent of lacking jurisdiction or excess of jurisdiction, that is not a political question. Therefore, the court has the duty to decide. 27 Our previous Constitutions equally recognized the extent of the power of judicial review and the great responsibility of the Judiciary in maintaining the allocation of powers among the three great branches of Government. Speaking for the Court in Angara v. Electoral Commission,28 Justice Jose P. Laurel intoned: x x x In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several department and among the integral or constituent units thereof. xxxx The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other department; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. x x x 29 What are the remedies by which the grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government may be determined under the Constitution? The present Rules of Court uses two special civil actions for determining and correcting grave abuse of discretion amounting to lack or excess of jurisdiction. These are the special civil actions for certiorari and prohibition, and both are governed by Rule 65. A similar remedy of certiorari exists under Rule 64, but the remedy is expressly applicable only to the judgments and final orders or resolutions of the Commission on Elections and the Commission on Audit. The ordinary nature and function of the writ of certiorari in our present system are aptly explained in Delos Santos v. Metropolitan Bank and Trust Company:30 In the common law, from which the remedy of certiorari evolved, the writ of certiorari was issued out of Chancery, or the King’s Bench, commanding agents or officers of the inferior courts to return the record of a cause pending before them, so as to give the party more sure and speedy justice, for the writ would enable the superior court to determine from an inspection of the record whether the inferior court’s judgment was rendered without authority.

The errors were of such a nature that, if allowed to stand, they would result in a substantial injury to the petitioner to whom no other remedy was available. If the inferior court acted without authority, the record was then revised and corrected in matters of law. The writ of certiorari was limited to cases in which the inferior court was said to be exceeding its jurisdiction or was not proceeding according to essential requirements of law and would lie only to review judicial or quasi-judicial acts. The concept of the remedy of certiorari in our judicial system remains much the same as it has been in the common law. In this jurisdiction, however, the exercise of the power to issue the writ of certiorari is largely regulated by laying down the instances or situations in the Rules of Court in which a superior court may issue the writ of certiorari to an inferior court or officer. Section 1, Rule 65 of the Rules of Court compellingly provides the requirements for that purpose, viz: xxxx The sole office of the writ of certiorari is the correction of errors of jurisdiction, which includes the commission of grave abuse of discretion amounting to lack of jurisdiction. In this regard, mere abuse of discretion is not enough to warrant the issuance of the writ. The abuse of discretion must be grave, which means either that the judicial or quasi-judicial power was exercised in an arbitrary or despotic manner by reason of passion or personal hostility, or that the respondent judge, tribunal or board evaded a positive duty, or virtually refused to perform the duty enjoined or to act in contemplation of law, such as when such judge, tribunal or board exercising judicial or quasijudicial powers acted in a capricious or whimsical manner as to be equivalent to lack of jurisdiction.31 Although similar to prohibition in that it will lie for want or excess of jurisdiction, certiorari is to be distinguished from prohibition by the fact that it is a corrective remedy used for the re-examination of some action of an inferior tribunal, and is directed to the cause or proceeding in the lower court and not to the court itself, while prohibition is a preventative remedy issuing to restrain future action, and is directed to the court itself. 32 The Court expounded on the nature and function of the writ of prohibition in Holy Spirit Homeowners Association, Inc. v. Defensor:33 A petition for prohibition is also not the proper remedy to assail an IRR issued in the exercise of a quasi-legislative function. Prohibition is an extraordinary writ directed against any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions, ordering said entity or person to desist from further proceedings when said proceedings are without or in excess of said entity’s or person’s jurisdiction, or are accompanied with grave abuse of discretion, and there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law. Prohibition lies against judicial or ministerial functions, but not against legislative or quasi-legislative functions. Generally, the purpose of a writ of prohibition is to keep a lower court within the limits of its jurisdiction in order to maintain the administration of justice in orderly channels. Prohibition is the proper remedy to afford relief against usurpation of jurisdiction or power by an inferior court, or when, in the exercise of jurisdiction in handling matters clearly within its cognizance the inferior court transgresses the bounds prescribed to it by the law, or where there is no adequate remedy available in the ordinary course of law by which such relief can be obtained. Where the principal relief sought is to invalidate an IRR, petitioners’ remedy is an ordinary action for its nullification, an action which properly falls under the jurisdiction of the Regional Trial Court. In any case, petitioners’ allegation that "respondents are performing or threatening to perform functions without or in excess of their jurisdiction" may appropriately be enjoined by the trial court through a writ of injunction or a temporary restraining order. With respect to the Court, however, the remedies of certiorari and prohibition are necessarily broader in scope and reach, and the writ of certiorari or prohibition may be issued to correct errors of jurisdiction committed not only by a tribunal, corporation, board or officer exercising judicial, quasi-judicial or ministerial functions but also to set right, undo and restrain any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the Government, even if the latter does not exercise judicial, quasi-judicial or ministerial functions. This application is expressly authorized by the text of the second paragraph of Section 1, supra. Thus, petitions for certiorari and prohibition are appropriate remedies to raise constitutional issues and to review and/or prohibit or nullify the acts of legislative and executive officials.34

Necessarily, in discharging its duty under Section 1, supra, to set right and undo any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the Government, the Court is not at all precluded from making the inquiry provided the challenge was properly brought by interested or affected parties. The Court has been thereby entrusted expressly or by necessary implication with both the duty and the obligation of determining, in appropriate cases, the validity of any assailed legislative or executive action. This entrustment is consistent with the republican system of checks and balances. 35 Following our recent dispositions concerning the congressional pork barrel, the Court has become more alert to discharge its constitutional duty. We will not now refrain from exercising our expanded judicial power in order to review and determine, with authority, the limitations on the Chief Executive’s spending power. b) Requisites for the exercise of the power of judicial review were complied with The requisites for the exercise of the power of judicial review are the following, namely: (1) there must bean actual case or justiciable controversy before the Court; (2) the question before the Court must be ripe for adjudication; (3) the person challenging the act must be a proper party; and (4) the issue of constitutionality must be raised at the earliest opportunity and must be the very litis mota of the case.36 The first requisite demands that there be an actual case calling for the exercise of judicial power by the Court.37 An actual case or controversy, in the words of Belgica v. Executive Secretary Ochoa:38 x x x 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. In other words, "[t]here must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence." 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." "Withal, courts will decline to pass upon constitutional issues through advisory opinions, bereft as they are of authority to resolve hypothetical or moot questions." An actual and justiciable controversy exists in these consolidated cases. The incompatibility of the perspectives of the parties on the constitutionality of the DAP and its relevant issuances satisfy the requirement for a conflict between legal rights. The issues being raised herein meet the requisite ripeness considering that the challenged executive acts were already being implemented by the DBM, and there are averments by the petitioners that such implementation was repugnant to the letter and spirit of the Constitution. Moreover, the implementation of the DAP entailed the allocation and expenditure of huge sums of public funds. The fact that public funds have been allocated, disbursed or utilized by reason or on account of such challenged executive acts gave rise, therefore, to an actual controversy that is ripe for adjudication by the Court. It is true that Sec. Abad manifested during the January 28, 2014 oral arguments that the DAP as a program had been meanwhile discontinued because it had fully served its purpose, saying: "In conclusion, Your Honors, may I inform the Court that because the DAP has already fully served its purpose, the Administration’s economic managers have recommended its termination to the President. x x x."39 The Solicitor General then quickly confirmed the termination of the DAP as a program, and urged that its termination had already mooted the challenges to the DAP’s constitutionality, viz: DAP as a program, no longer exists, thereby mooting these present cases brought to challenge its constitutionality. Any constitutional challenge should no longer be at the level of the program, which is now extinct, but at the level of its prior applications or the specific disbursements under the now defunct policy. We challenge the petitioners to pick and choose which among the 116 DAP projects they wish to nullify, the full details we will have provided by February 5. We urge this Court to be cautious in limiting the constitutional authority of the President and the Legislature to respond to the dynamic needs of the country and the evolving

demands of governance, lest we end up straight jacketing our elected representatives in ways not consistent with our constitutional structure and democratic principles.40 A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value. 41 The Court cannot agree that the termination of the DAP as a program was a supervening event that effectively mooted these consolidated cases. Verily, the Court had in the past exercised its power of judicial review despite the cases being rendered moot and academic by supervening events, like: (1) when there was a grave violation of the Constitution; (2) when the case involved a situation of exceptional character and was of paramount public interest; (3) when the constitutional issue raised required the formulation of controlling principles to guide the Bench, the Bar and the public; and (4) when the case was capable of repetition yet evading review. 42 Assuming that the petitioners’ several submissions against the DAP were ultimately sustained by the Court here, these cases would definitely come under all the exceptions. Hence, the Court should not abstain from exercising its power of judicial review. Did the petitioners have the legal standing to sue? Legal standing, as a requisite for the exercise of judicial review, refers to "a right of appearance in a court of justice on a given question."43 The concept of legal standing, or locus standi, was particularly discussed in De Castro v. Judicial and Bar Council,44 where the Court said: In public or constitutional litigations, the Court is often burdened with the determination of the locus standi of the petitioners due to the ever-present need to regulate the invocation of the intervention of the Court to correct any official action or policy in order to avoid obstructing the efficient functioning of public officials and offices involved in public service. It is required, therefore, that the petitioner must have a personal stake in the outcome of the controversy, for, as indicated in Agan, Jr. v. Philippine International Air Terminals Co., Inc.: The question on legal standing is whether such parties have "alleged 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." Accordingly, it has been held that the interest of a person assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of. It is true that as early as in 1937, in People v. Vera, the Court adopted the direct injury test for determining whether a petitioner in a public action had locus standi. There, the Court held that the person who would assail the validity of a statute must have "a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result." Vera was followed in Custodio v. President of the Senate, Manila Race Horse Trainers’ Association v. De la Fuente, Anti-Chinese League of the Philippines v. Felix, and Pascual v. Secretary of Public Works. Yet, the Court has also held that the requirement of locus standi, being a mere procedural technicality, can be waived by the Court in the exercise of its discretion. For instance, in 1949, in Araneta v. Dinglasan, the Court liberalized the approach when the cases had "transcendental importance." Some notable controversies whose petitioners did not pass the direct injury test were allowed to be treated in the same way as in Araneta v. Dinglasan. In the 1975 decision in Aquino v. Commission on Elections, this Court decided to resolve the issues raised by the petition due to their "far reaching implications," even if the petitioner had no personality to file the suit. The liberal approach of Aquino v. Commission on Elections has been adopted in several notable cases, permitting ordinary citizens, legislators, and civic organizations to bring their suits involving the constitutionality or validity of laws, regulations, and rulings.

However, the assertion of a public right as a predicate for challenging a supposedly illegal or unconstitutional executive or legislative action rests on the theory that the petitioner represents the public in general. Although such petitioner may not be as adversely affected by the action complained against as are others, it is enough that he sufficiently demonstrates in his petition that he is entitled to protection or relief from the Court in the vindication of a public right. Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to gain locus standi. That is not surprising, for even if the issue may appear to concern only the public in general, such capacities nonetheless equip the petitioner with adequate interest to sue. In David v. Macapagal-Arroyo, the Court aptly explains why: Case law in most jurisdiction snow allows both "citizen" and "taxpayer" standing in public actions. The distinction was first laid down in Beauchamp v. Silk, where it was held that the plaintiff in a taxpayer’s suit is in a different category from the plaintiff in a citizen’s suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere instrument of the public concern. As held by the New York Supreme Court in People ex rel Case v. Collins: "In matter of mere public right, however…the people are the real parties…It is at least the right, if not the duty, of every citizen to interfere and see that a public offence be properly pursued and punished, and that a public grievance be remedied." With respect to taxpayer’s suits, Terr v. Jordan held that "the right of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be denied."45 The Court has cogently observed in Agan, Jr. v. Philippine International Air Terminals Co., Inc. 46 that "[s]tanding is a peculiar concept in constitutional law because in some cases, suits are not brought by parties who have been personally injured by the operation of a law or any other government act but by concerned citizens, taxpayers or voters who actually sue in the public interest." Except for PHILCONSA, a petitioner in G.R. No. 209164, the petitioners have invoked their capacities as taxpayers who, by averring that the issuance and implementation of the DAP and its relevant issuances involved the illegal disbursements of public funds, have an interest in preventing the further dissipation of public funds. The petitioners in G.R. No. 209287 (Araullo) and G.R. No. 209442 (Belgica) also assert their right as citizens to sue for the enforcement and observance of the constitutional limitations on the political branches of the Government.47 On its part, PHILCONSA simply reminds that the Court has long recognized its legal standing to bring cases upon constitutional issues.48 Luna, the petitioner in G.R. No. 209136, cites his additional capacity as a lawyer. The IBP, the petitioner in G.R. No. 209260, stands by "its avowed duty to work for the rule of law and of paramount importance of the question in this action, not to mention its civic duty as the official association of all lawyers in this country."49 Under their respective circumstances, each of the petitioners has established sufficient interest in the outcome of the controversy as to confer locus standi on each of them. In addition, considering that the issues center on the extent of the power of the Chief Executive to disburse and allocate public funds, whether appropriated by Congress or not, these cases pose issues that are of transcendental importance to the entire Nation, the petitioners included. As such, the determination of such important issues call for the Court’s exercise of its broad and wise discretion "to waive the requirement and so remove the impediment to its addressing and resolving the serious constitutional questions raised." 50 II. Substantive Issues 1. Overview of the Budget System An understanding of the Budget System of the Philippines will aid the Court in properly appreciating and justly resolving the substantive issues. a) Origin of the Budget System

The term "budget" originated from the Middle English word bouget that had derived from the Latin word bulga (which means bag or purse).51 In the Philippine setting, Commonwealth Act (CA) No. 246 (Budget Act) defined "budget" as the financial program of the National Government for a designated fiscal year, consisting of the statements of estimated receipts and expenditures for the fiscal year for which it was intended to be effective based on the results of operations during the preceding fiscal years. The term was given a different meaning under Republic Act No. 992 (Revised Budget Act) by describing the budget as the delineation of the services and products, or benefits that would accrue to the public together with the estimated unit cost of each type of service, product or benefit. 52 For a forthright definition, budget should simply be identified as the financial plan of the Government, 53 or "the master plan of government."54 The concept of budgeting has not been the product of recent economies. In reality, financing public goals and activities was an idea that existed from the creation of the State.55 To protect the people, the territory and sovereignty of the State, its government must perform vital functions that required public expenditures. At the beginning, enormous public expenditures were spent for war activities, preservation of peace and order, security, administration of justice, religion, and supply of limited goods and services. 56 In order to finance those expenditures, the State raised revenues through taxes and impositions. 57 Thus, budgeting became necessary to allocate public revenues for specific government functions.58 The State’s budgeting mechanism eventually developed through the years with the growing functions of its government and changes in its market economy. The Philippine Budget System has been greatly influenced by western public financial institutions. This is because of the country’s past as a colony successively of Spain and the United States for a long period of time. Many aspects of the country’s public fiscal administration, including its Budget System, have been naturally patterned after the practices and experiences of the western public financial institutions. At any rate, the Philippine Budget System is presently guided by two principal objectives that are vital to the development of a progressive democratic government, namely: (1) to carry on all government activities under a comprehensive fiscal plan developed, authorized and executed in accordance with the Constitution, prevailing statutes and the principles of sound public management; and (2) to provide for the periodic review and disclosure of the budgetary status of the Government in such detail so that persons entrusted by law with the responsibility as well as the enlightened citizenry can determine the adequacy of the budget actions taken, authorized or proposed, as well as the true financial position of the Government.59 b) Evolution of the Philippine Budget System The budget process in the Philippines evolved from the early years of the American Regime up to the passage of the Jones Law in 1916. A Budget Office was created within the Department of Finance by the Jones Law to discharge the budgeting function, and was given the responsibility to assist in the preparation of an executive budget for submission to the Philippine Legislature.60 As early as under the 1935 Constitution, a budget policy and a budget procedure were established, and subsequently strengthened through the enactment of laws and executive acts.61 EO No. 25, issued by President Manuel L. Quezon on April 25, 1936, created the Budget Commission to serve as the agency that carried out the President’s responsibility of preparing the budget. 62 CA No. 246, the first budget law, went into effect on January 1, 1938 and established the Philippine budget process. The law also provided a line-item budget as the framework of the Government’s budgeting system,63 with emphasis on the observance of a "balanced budget" to tie up proposed expenditures with existing revenues. CA No. 246 governed the budget process until the passage on June 4, 1954 of Republic Act (RA) No. 992,whereby Congress introduced performance-budgeting to give importance to functions, projects and activities in terms of expected results.64 RA No. 992 also enhanced the role of the Budget Commission as the fiscal arm of the Government.65 The 1973 Constitution and various presidential decrees directed a series of budgetary reforms that culminated in the enactment of PD No. 1177 that President Marcos issued on July30, 1977, and of PD No. 1405, issued on June 11, 1978. The latter decree converted the Budget Commission into the Ministry of Budget, and gave its head the rank of a Cabinet member.

The Ministry of Budget was later renamed the Office of Budget and Management (OBM) under EO No. 711. The OBM became the DBM pursuant to EO No. 292 effective on November 24, 1989. c) The Philippine Budget Cycle66 Four phases comprise the Philippine budget process, specifically: (1) Budget Preparation; (2) Budget Legislation; (3) Budget Execution; and (4) Accountability. Each phase is distinctly separate from the others but they overlap in the implementation of the budget during the budget year. c.1.Budget Preparation67 The budget preparation phase is commenced through the issuance of a Budget Call by the DBM. The Budget Call contains budget parameters earlier set by the Development Budget Coordination Committee (DBCC) as well as policy guidelines and procedures to aid government agencies in the preparation and submission of their budget proposals. The Budget Call is of two kinds, namely: (1) a National Budget Call, which is addressed to all agencies, including state universities and colleges; and (2) a Corporate Budget Call, which is addressed to all government-owned and -controlled corporations (GOCCs) and government financial institutions (GFIs). Following the issuance of the Budget Call, the various departments and agencies submit their respective Agency Budget Proposals to the DBM. To boost citizen participation, the current administration has tasked the various departments and agencies to partner with civil society organizations and other citizen-stakeholders in the preparation of the Agency Budget Proposals, which proposals are then presented before a technical panel of the DBM in scheduled budget hearings wherein the various departments and agencies are given the opportunity to defend their budget proposals. DBM bureaus thereafter review the Agency Budget Proposals and come up with recommendations for the Executive Review Board, comprised by the DBM Secretary and the DBM’s senior officials. The discussions of the Executive Review Board cover the prioritization of programs and their corresponding support vis-à-vis the priority agenda of the National Government, and their implementation. The DBM next consolidates the recommended agency budgets into the National Expenditure Program (NEP)and a Budget of Expenditures and Sources of Financing (BESF). The NEP provides the details of spending for each department and agency by program, activity or project (PAP), and is submitted in the form of a proposed GAA. The Details of Selected Programs and Projects is the more detailed disaggregation of key PAPs in the NEP, especially those in line with the National Government’s development plan. The Staffing Summary provides the staffing complement of each department and agency, including the number of positions and amounts allocated. The NEP and BESF are thereafter presented by the DBM and the DBCC to the President and the Cabinet for further refinements or reprioritization. Once the NEP and the BESF are approved by the President and the Cabinet, the DBM prepares the budget documents for submission to Congress. The budget documents consist of: (1) the President’s Budget Message, through which the President explains the policy framework and budget priorities; (2) the BESF, mandated by Section 22, Article VII of the Constitution, 68 which contains the macroeconomic assumptions, public sector context, breakdown of the expenditures and funding sources for the fiscal year and the two previous years; and (3) the NEP. Public or government expenditures are generally classified into two categories, specifically: (1) capital expenditures or outlays; and (2) current operating expenditures. Capital expenditures are the expenses whose usefulness lasts for more than one year, and which add to the assets of the Government, including investments in the capital of government-owned or controlled corporations and their subsidiaries.69 Current operating expenditures are the purchases of goods and services in current consumption the benefit of which does not extend beyond the fiscal year.70 The two components of current expenditures are those for personal services (PS), and those for maintenance and other operating expenses(MOOE). Public expenditures are also broadly grouped according to their functions into: (1) economic development expenditures (i.e., expenditures on agriculture and natural resources, transportation and communications, commerce and industry, and other economic development efforts);71 (2) social services or social development expenditures (i.e., government outlay on education, public health and medicare, labor and welfare and others);72 (3) general government or general public services expenditures (i.e., expenditures for the general government, legislative services, the administration of justice, and for pensions and gratuities);73 (4) national

defense expenditures (i.e., sub-divided into national security expenditures and expenditures for the maintenance of peace and order);74 and (5) public debt.75 Public expenditures may further be classified according to the nature of funds, i.e., general fund, special fund or bond fund.76 On the other hand, public revenues complement public expenditures and cover all income or receipts of the government treasury used to support government expenditures.77 Classical economist Adam Smith categorized public revenues based on two principal sources, stating: "The revenue which must defray…the necessary expenses of government may be drawn either, first from some fund which peculiarly belongs to the sovereign or commonwealth, and which is independent of the revenue of the people, or, secondly, from the revenue of the people."78 Adam Smith’s classification relied on the two aspects of the nature of the State: first, the State as a juristic person with an artificial personality, and, second, the State as a sovereign or entity possessing supreme power. Under the first aspect, the State could hold property and engage in trade, thereby deriving what is called its quasi private income or revenues, and which "peculiarly belonged to the sovereign." Under the second aspect, the State could collect by imposing charges on the revenues of its subjects in the form of taxes.79 In the Philippines, public revenues are generally derived from the following sources, to wit: (1) tax revenues(i.e., compulsory contributions to finance government activities); 80 (2) capital revenues(i.e., proceeds from sales of fixed capital assets or scrap thereof and public domain, and gains on such sales like sale of public lands, buildings and other structures, equipment, and other properties recorded as fixed assets); 81 (3) grants(i.e., voluntary contributions and aids given to the Government for its operation on specific purposes in the form of money and/or materials, and do not require any monetary commitment on the part of the recipient); 82 (4) extraordinary income(i.e., repayment of loans and advances made by government corporations and local governments and the receipts and shares in income of the Banko Sentral ng Pilipinas, and other receipts);83 and (5) public borrowings(i.e., proceeds of repayable obligations generally with interest from domestic and foreign creditors of the Government in general, including the National Government and its political subdivisions). 84 More specifically, public revenues are classified as follows: 85 General Income

Specific Income

1.

Subsidy Income from National Government

1. Income Taxes

2.

Subsidy from Central Office

3. Taxes on Goods and Services

3.

Subsidy from Regional Office/Staff Bureaus

4. Taxes on International Trade and Transactions

4.

Income from Government Services

5. Other Taxes 6.Fines and Penalties-Tax Revenue

5.

Income from Government Business Operations

6.

Sales Revenue

7.

Rent Income

8.

Insurance Income

9.

Dividend Income

10.

Interest Income

11.

Sale of Confiscated Goods and Properties

12.

Foreign Exchange (FOREX) Gains

13.

Miscellaneous Operating and

2. Property Taxes

7. Other Specific Income

Service Income 14.

Fines and Penalties-Government Services and Business Operations

15.

Income from Grants and Donations

c.2. Budget Legislation86 The Budget Legislation Phase covers the period commencing from the time Congress receives the President’s Budget, which is inclusive of the NEPand the BESF, up to the President’s approval of the GAA. This phase is also known as the Budget Authorization Phase, and involves the significant participation of the Legislative through its deliberations. Initially, the President’s Budget is assigned to the House of Representatives’ Appropriations Committee on First Reading. The Appropriations Committee and its various Sub-Committees schedule and conduct budget hearings to examine the PAPs of the departments and agencies. Thereafter, the House of Representatives drafts the General Appropriations Bill (GAB).87 The GABis sponsored, presented and defended by the House of Representatives’ Appropriations Committee and Sub-Committees in plenary session. As with other laws, the GAB is approved on Third Reading before the House of Representatives’ version is transmitted to the Senate.88 After transmission, the Senate conducts its own committee hearings on the GAB. To expedite proceedings, the Senate may conduct its committee hearings simultaneously with the House of Representatives’ deliberations. The Senate’s Finance Committee and its Sub-Committees may submit the proposed amendments to the GAB to the plenary of the Senate only after the House of Representatives has formally transmitted its version to the Senate. The Senate version of the GAB is likewise approved on Third Reading.89 The House of Representatives and the Senate then constitute a panel each to sit in the Bicameral Conference Committee for the purpose of discussing and harmonizing the conflicting provisions of their versions of the GAB. The "harmonized" version of the GAB is next presented to the President for approval.90 The President reviews the GAB, and prepares the Veto Message where budget items are subjected to direct veto, 91 or are identified for conditional implementation. If, by the end of any fiscal year, the Congress shall have failed to pass the GAB for the ensuing fiscal year, the GAA for the preceding fiscal year shall be deemed re-enacted and shall remain in force and effect until the GAB is passed by the Congress.92 c.3. Budget Execution93 With the GAA now in full force and effect, the next step is the implementation of the budget. The Budget Execution Phase is primarily the function of the DBM, which is tasked to perform the following procedures, namely: (1) to issue the programs and guidelines for the release of funds; (2) to prepare an Allotment and Cash Release Program; (3) to release allotments; and (4) to issue disbursement authorities. The implementation of the GAA is directed by the guidelines issued by the DBM. Prior to this, the various departments and agencies are required to submit Budget Execution Documents(BED) to outline their plans and performance targets by laying down the physical and financial plan, the monthly cash program, the estimate of monthly income, and the list of obligations that are not yet due and demandable. Thereafter, the DBM prepares an Allotment Release Program (ARP)and a Cash Release Program (CRP).The ARP sets a limit for allotments issued in general and to a specific agency. The CRP fixes the monthly, quarterly and annual disbursement levels.

Allotments, which authorize an agency to enter into obligations, are issued by the DBM. Allotments are lesser in scope than appropriations, in that the latter embrace the general legislative authority to spend. Allotments may be released in two forms – through a comprehensive Agency Budget Matrix (ABM),94 or, individually, by SARO.95 Armed with either the ABM or the SARO, agencies become authorized to incur obligations 96 on behalf of the Government in order to implement their PAPs. Obligations may be incurred in various ways, like hiring of personnel, entering into contracts for the supply of goods and services, and using utilities. In order to settle the obligations incurred by the agencies, the DBM issues a disbursement authority so that cash may be allocated in payment of the obligations. A cash or disbursement authority that is periodically issued is referred to as a Notice of Cash Allocation (NCA),97 which issuance is based upon an agency’s submission of its Monthly Cash Program and other required documents. The NCA specifies the maximum amount of cash that can be withdrawn from a government servicing bank for the period indicated. Apart from the NCA, the DBM may issue a Non-Cash Availment Authority(NCAA) to authorize non-cash disbursements, or a Cash Disbursement Ceiling(CDC) for departments with overseas operations to allow the use of income collected by their foreign posts for their operating requirements. Actual disbursement or spending of government funds terminates the Budget Execution Phase and is usually accomplished through the Modified Disbursement Scheme under which disbursements chargeable against the National Treasury are coursed through the government servicing banks. c.4. Accountability98 Accountability is a significant phase of the budget cycle because it ensures that the government funds have been effectively and efficiently utilized to achieve the State’s socio-economic goals. It also allows the DBM to assess the performance of agencies during the fiscal year for the purpose of implementing reforms and establishing new policies. An agency’s accountability may be examined and evaluated through (1) performance targets and outcomes; (2) budget accountability reports; (3) review of agency performance; and (4) audit conducted by the Commission on Audit(COA). 2. Nature of the DAP as a fiscal plan a. DAP was a program designed to promote economic growth Policy is always a part of every budget and fiscal decision of any Administration. 99 The national budget the Executive prepares and presents to Congress represents the Administration’s "blueprint for public policy" and reflects the Government’s goals and strategies.100 As such, the national budget becomes a tangible representation of the programs of the Government in monetary terms, specifying therein the PAPs and services for which specific amounts of public funds are proposed and allocated. 101 Embodied in every national budget is government spending.102 When he assumed office in the middle of 2010, President Aquino made efficiency and transparency in government spending a significant focus of his Administration. Yet, although such focus resulted in an improved fiscal deficit of 0.5% in the gross domestic product (GDP) from January to July of 2011, it also unfortunately decelerated government project implementation and payment schedules.103 The World Bank observed that the Philippines’ economic growth could be reduced, and potential growth could be weakened should the Government continue with its underspending and fail to address the large deficiencies in infrastructure. 104 The economic situation prevailing in the middle of 2011 thus paved the way for the development and implementation of the DAP as a stimulus package intended to fast-track public spending and to push economic growth by investing on highimpact budgetary PAPs to be funded from the "savings" generated during the year as well as from unprogrammed funds.105 In that respect, the DAP was the product of "plain executive policy-making" to stimulate the economy by way of accelerated spending.106The Administration would thereby accelerate government spending by: (1)

streamlining the implementation process through the clustering of infrastructure projects of the Department of Public Works and Highways (DPWH) and the Department of Education (DepEd),and (2) front loading PPP-related projects107 due for implementation in the following year.108 Did the stimulus package work? The March 2012 report of the World Bank,109 released after the initial implementation of the DAP, revealed that the DAP was partially successful. The disbursements under the DAP contributed 1.3 percentage points to GDP growth by the fourth quarter of 2011.110 The continued implementation of the DAP strengthened growth by 11.8% year on year while infrastructure spending rebounded from a 29% contraction to a 34% growth as of September 2013.111 The DAP thus proved to be a demonstration that expenditure was a policy instrument that the Government could use to direct the economies towards growth and development.112 The Government, by spending on public infrastructure, would signify its commitment of ensuring profitability for prospective investors.113 The PAPs funded under the DAP were chosen for this reason based on their: (1) multiplier impact on the economy and infrastructure development; (2) beneficial effect on the poor; and (3) translation into disbursements. 114 b. History of the implementation of the DAP, and sources of funds under the DAP How the Administration’s economic managers conceptualized and developed the DAP, and finally presented it to the President remains unknown because the relevant documents appear to be scarce. The earliest available document relating to the genesis of the DAP was the memorandum of October 12,2011 from Sec. Abad seeking the approval of the President to implement the proposed DAP. The memorandum, which contained a list of the funding sources for ₱72.11 billion and of the proposed priority projects to be funded,115 reads: MEMORANDUM FOR THE PRESIDENT xxxx SUBJECT: FY 2011 PROPOSED DISBURSEMENT ACCELERATION PROGRAM (PROJECTS AND SOURCES OF FUNDS) DATE: OCTOBER 12, 2011 Mr. President, this is to formally confirm your approval of the Disbursement Acceleration Program totaling ₱72.11 billion. We are already working with all the agencies concerned for the immediate execution of the projects therein. A. Fund Sources for the Acceleration Program

Fund Sources

FY 2011 Unreleased Personal Services (PS) Appropriations

Amount (In million Php) 30,000

Description

Unreleased Personnel Services (PS) appropriations which will lapse at the end of FY 2011 but may be pooled as savings and

Action Requested Declare as savings and approve/ authorize its use for the 2011 Disbursement

realigned for priority programs that require immediate funding

Acceleration Program

FY 2011 Unreleased Appropriations

482

FY 2010 Unprogrammed Fund

12,336

Supported by the GFI Dividends

Approve and authorize its use for the 2011 Disbursement Acceleration Program

FY 2010 Carryover Appropriation

21,544

Unreleased appropriations (slow moving projects and programs for discontinuance) and savings from Zero-based Budgeting Initiative

With prior approval from the President in November 2010 to declare as savings and with authority to use for priority projects

FY 2011 Budget items for realignment

7,748

FY 2011 Agency Budget items that can be realigned within the agency to fund new fast disbursing projects DPWH-3.981 Billion DA – 2.497 Billion DOT – 1.000 Billion DepEd – 270 Million

For information

TOTAL

Unreleased appropriations (slow moving projects and programs for discontinuance)

72.110

B. Projects in the Disbursement Acceleration Program (Descriptions of projects attached as Annex A) GOCCs and GFIs Agency/Project (SARO and NCA Release) 1. LRTA: Rehabilitation of LRT 1 and 2 2. NHA: a. Resettlement of North Triangle residents to Camarin A7 b. Housing for BFP/BJMP c. On-site development for families living along dangerous

Allotment (in Million Php) 1,868 11,050 450 500 10,000

d. Relocation sites for informal settlers along Iloilo River and its tributaries

100

3. PHIL. HEART CENTER: Upgrading of ageing physical plant and medical equipment

357

4. CREDIT INFO CORP: Establishment of centralized credit information system

75

5. PIDS: purchase of land to relocate the PIDS office and building construction

100

6. HGC: Equity infusion for credit insurance and mortgage guaranty operations of HGC

400

7. PHIC: Obligations incurred (premium subsidy for indigent families) in January-June 2010, booked for payment in Jul[y] – Dec 2010. The delay in payment is due to the delay in the certification of the LGU counterpart. Without it, the NG is obliged to pay the full amount.

1,496

8. Philpost: Purchase of foreclosed property. Payment of Mandatory Obligations, (GSIS, PhilHealth, ECC), Franking Privilege

644

9. BSP: First equity infusion out of Php 40B capitalization under the BSP Law

10,000

10. PCMC: Capital and Equipment Renovation

280

11. LCOP: a. Pediatric Pulmonary Program b. Bio-regenerative Technology Program (Stem-Cell Research – subject to legal review and presentation)

105

12. TIDCORP: NG Equity infusion

570

35 70

TOTAL

26,945

NGAs/LGUs Agency/Project

Allotment (SARO) (In Million Php)

Cash Requirement (NCA)

13. DOF-BIR: NPSTAR centralization of data processing and others (To be synchronized with GFMIS activities)

758

758

14. COA: IT infrastructure program and hiring of additional litigational experts

144

144

15. DND-PAF: On Base Housing

Facilities and Communication Equipment

30

30

2,959

2,223

1,629

1,629

919

183

411

411

1,293

1,293

1,293

132 5,432

18. DBM: Conduct of National Survey of Farmers/Fisherfolks/Ips

625

625

19. DOJ: Operating requirements of 50 investigation agents and 15 state attorneys

11

11

20. DOT: Preservation of the Cine Corregidor Complex

25

25

1,819

1,819

425

425

275

275

190

190

2,800

2,800

24. OEO-FDCP: Establishment of the National Film Archive and local cinematheques, and other local activities

20

20

25. DPWH: Various infrastructure projects

5,500

5,500

16. DA: a. Irrigation, FMRs and Integrated Community Based Multi-Species Hatchery and Aquasilvi Farming b. Mindanao Rural Development Project c. NIA Agno River Integrated Irrigation Project 17. DAR: a. Agrarian Reform Communities Project 2 b. Landowners Compensation

21. OPAPP: Activities for Peace Process (PAMANA- Project details: budget breakdown, implementation plan, and conditions on fund release attached as Annex B) 22. DOST a. Establishment of National Meterological and Climate Center b. Enhancement of Doppler Radar Network for National Weather Watch, Accurate Forecasting and Flood Early Warning 23. DOF-BOC: To settle the principal obligations with PDIC consistent with the agreement with the CISS and SGS

26. DepEd/ERDT/DOST: Thin Client Cloud Computing Project

270

270

27. DOH: Hiring of nurses and midwives

294

294

1,100

1,100

29. DILG: Performance Challenge Fund (People Empowered Community Driven Development with DSWD and NAPC)

250

50

30. ARMM: Comprehensive Peace and Development Intervention

8,592

8,592

31. DOTC-MRT: Purchase of additional MRT cars

4,500

-

32. LGU Support Fund

6,500

6,500

33. Various Other Local Projects

6,500

6,500

750

750

45,165

44,000

28. TESDA: Training Program in partnership with BPO industry and other sectors

34. Development Assistance to the Province of Quezon TOTAL C. Summary Fund Sources Identified for Approval (In Million Php)

Allotments for Release

Cash Requirements for Release in FY 2011

72,110

70,895

GOCCs

26,895

26,895

NGAs/LGUs

45,165

44,000

Total

For His Excellency’s Consideration (Sgd.) FLORENCIO B. ABAD [/] APPROVED [ ] DISAPPROVED (Sgd.) H.E. BENIGNO S. AQUINO, III OCT 12, 2011

72,110

The memorandum of October 12, 2011 was followed by another memorandum for the President dated December 12, 2011116 requesting omnibus authority to consolidate the savings and unutilized balances for fiscal year 2011. Pertinent portions of the memorandum of December 12, 2011 read: MEMORANDUM FOR THE PRESIDENT xxxx SUBJECT: Omnibus Authority to Consolidate Savings/Unutilized Balances and its Realignment DATE: December 12, 2011 This is to respectfully request for the grant of Omnibus Authority to consolidate savings/unutilized balances in FY 2011 corresponding to completed or discontinued projects which may be pooled to fund additional projects or expenditures. In addition, Mr. President, this measure will allow us to undertake projects even if their implementation carries over to 2012 without necessarily impacting on our budget deficit cap next year. BACKGROUND 1.0 The DBM, during the course of performance reviews conducted on the agencies’ operations, particularly on the implementation of their projects/activities, including expenses incurred in undertaking the same, have identified savings out of the 2011 General Appropriations Act. Said savings correspond to completed or discontinued projects under certain departments/agencies which may be pooled, for the following: 1.1 to provide for new activities which have not been anticipated during preparation of the budget; 1.2 to augment additional requirements of on-going priority projects; and 1.3 to provide for deficiencies under the Special Purpose Funds, e.g., PDAF, Calamity Fund, Contingent Fund 1.4 to cover for the modifications of the original allotment class allocation as a result of on-going priority projects and implementation of new activities 2.0 x x x x 2.1 x x x 2.2 x x x ON THE UTILIZATION OF POOLED SAVINGS 3.0 It may be recalled that the President approved our request for omnibus authority to pool savings/unutilized balances in FY 2010 last November 25, 2010. 4.0 It is understood that in the utilization of the pooled savings, the DBM shall secure the corresponding approval/confirmation of the President. Furthermore, it is assured that the proposed realignments shall be within the authorized Expenditure level.

5.0 Relative thereto, we have identified some expenditure items that may be sourced from the said pooled appropriations in FY 2010 that will expire on December 31, 2011 and appropriations in FY 2011 that may be declared as savings to fund additional expenditures. 5.1 The 2010 Continuing Appropriations (pooled savings) is proposed to be spent for the projects that we have identified to be immediate actual disbursements considering that this same fund source will expire on December 31, 2011. 5.2 With respect to the proposed expenditure items to be funded from the FY 2011 Unreleased Appropriations, most of these are the same projects for which the DBM is directed by the Office of the President, thru the Executive Secretary, to source funds. 6.0 Among others, the following are such proposed additional projects that have been chosen given their multiplier impact on economy and infrastructure development, their beneficial effect on the poor, and their translation into disbursements. Please note that we have classified the list of proposed projects as follows: 7.0 x x x FOR THE PRESIDENT’S APPROVAL 8.0 Foregoing considered, may we respectfully request for the President’s approval for the following: 8.1 Grant of omnibus authority to consolidate FY 2011 savings/unutilized balances and its realignment; and 8.2 The proposed additional projects identified for funding. For His Excellency’s consideration and approval. (Sgd.) [/] APPROVED [ ] DISAPPROVED (Sgd.) H.E. BENIGNO S. AQUINO, III DEC 21, 2011 Substantially identical requests for authority to pool savings and to fund proposed projects were contained in various other memoranda from Sec. Abad dated June 25, 2012,117 September 4, 2012,118 December 19, 2012,119 May 20, 2013,120 and September 25, 2013.121 The President apparently approved all the requests, withholding approval only of the proposed projects contained in the June 25, 2012 memorandum, as borne out by his marginal note therein to the effect that the proposed projects should still be "subject to further discussions." 122 In order to implement the June25, 2012 memorandum, Sec. Abad issued NBC No. 541 (Adoption of Operational Efficiency Measure – Withdrawal of Agencies’ Unobligated Allotments as of June 30, 2012),123 reproduced herein as follows: NATIONAL BUDGET CIRCULAR No. 541 July 18, 2012

TO: All Heads of Departments/Agencies/State Universities and Colleges and other Offices of the National Government, Budget and Planning Officers; Heads of Accounting Units and All Others Concerned SUBJECT : Adoption of Operational Efficiency Measure – Withdrawal of Agencies’ Unobligated Allotments as of June 30, 2012 1.0 Rationale The DBM, as mandated by Executive Order (EO) No. 292 (Administrative Code of 1987), periodically reviews and evaluates the departments/agencies’ efficiency and effectiveness in utilizing budgeted funds for the delivery of services and production of goods, consistent with the government priorities. In the event that a measure is necessary to further improve the operational efficiency of the government, the President is authorized to suspend or stop further use of funds allotted for any agency or expenditure authorized in the General Appropriations Act. Withdrawal and pooling of unutilized allotment releases can be effected by DBM based on authority of the President, as mandated under Sections 38 and 39, Chapter 5, Book VI of EO 292. For the first five months of 2012, the National Government has not met its spending targets. In order to accelerate spending and sustain the fiscal targets during the year, expenditure measures have to be implemented to optimize the utilization of available resources. Departments/agencies have registered low spending levels, in terms of obligations and disbursements per initial review of their 2012 performance. To enhance agencies’ performance, the DBM conducts continuous consultation meetings and/or send call-up letters, requesting them to identify slow-moving programs/projects and the factors/issues affecting their performance (both pertaining to internal systems and those which are outside the agencies’ spheres of control). Also, they are asked to formulate strategies and improvement plans for the rest of 2012. Notwithstanding these initiatives, some departments/agencies have continued to post low obligation levels as of end of first semester, thus resulting to substantial unobligated allotments. In line with this, the President, per directive dated June 27, 2012 authorized the withdrawal of unobligated allotments of agencies with low levels of obligations as of June 30, 2012, both for continuing and current allotments. This measure will allow the maximum utilization of available allotments to fund and undertake other priority expenditures of the national government. 2.0 Purpose 2.1 To provide the conditions and parameters on the withdrawal of unobligated allotments of agencies as of June 30, 2012 to fund priority and/or fast-moving programs/projects of the national government; 2.2 To prescribe the reports and documents to be used as bases on the withdrawal of said unobligated allotments; and 2.3 To provide guidelines in the utilization or reallocation of the withdrawn allotments. 3.0 Coverage 3.1 These guidelines shall cover the withdrawal of unobligated allotments as of June 30, 2012 of all national government agencies (NGAs) charged against FY 2011 Continuing Appropriation (R.A. No.10147) and FY 2012 Current Appropriation (R.A. No. 10155), pertaining to: 3.1.1 Capital Outlays (CO);

3.1.2 Maintenance and Other Operating Expenses (MOOE) related to the implementation of programs and projects, as well as capitalized MOOE; and 3.1.3 Personal Services corresponding to unutilized pension benefits declared as savings by the agencies concerned based on their updated/validated list of pensioners. 3.2 The withdrawal of unobligated allotments may cover the identified programs, projects and activities of the departments/agencies reflected in the DBM list shown as Annex A or specific programs and projects as may be identified by the agencies. 4.0 Exemption These guidelines shall not apply to the following: 4.1 NGAs 4.1.1 Constitutional Offices/Fiscal Autonomy Group, granted fiscal autonomy under the Philippine Constitution; and 4.1.2 State Universities and Colleges, adopting the Normative Funding allocation scheme i.e., distribution of a predetermined budget ceiling. 4.2 Fund Sources 4.2.1 Personal Services other than pension benefits; 4.2.2 MOOE items earmarked for specific purposes or subject to realignment conditions per General Provisions of the GAA: • Confidential and Intelligence Fund; • Savings from Traveling, Communication, Transportation and Delivery, Repair and Maintenance, Supplies and Materials and Utility which shall be used for the grant of Collective Negotiation Agreement incentive benefit; • Savings from mandatory expenditures which can be realigned only in the last quarter after taking into consideration the agency’s full year requirements, i.e., Petroleum, Oil and Lubricants, Water, Illumination, Power Services, Telephone, other Communication Services and Rent. 4.2.3 Foreign-Assisted Projects (loan proceeds and peso counterpart); 4.2.4 Special Purpose Funds such as: E-Government Fund, International Commitments Fund, PAMANA, Priority Development Assistance Fund, Calamity Fund, Budgetary Support to GOCCs and Allocation to LGUs, among others; 4.2.5 Quick Response Funds; and 4.2.6 Automatic Appropriations i.e., Retirement Life Insurance Premium and Special Accounts in the General Fund. 5.0 Guidelines 5.1 National government agencies shall continue to undertake procurement activities notwithstanding the implementation of the policy of withdrawal of unobligated allotments until the

end of the third quarter, FY 2012. Even without the allotments, the agency shall proceed in undertaking the procurement processes (i.e., procurement planning up to the conduct of bidding but short of awarding of contract) pursuant to GPPB Circular Nos. 02-2008 and 01-2009 and DBM Circular Letter No. 2010-9. 5.2 For the purpose of determining the amount of unobligated allotments that shall be withdrawn, all departments/agencies/operating units (OUs) shall submit to DBM not later than July 30, 2012, the following budget accountability reports as of June 30, 2012; • Statement of Allotments, Obligations and Balances (SAOB); • Financial Report of Operations (FRO); and • Physical Report of Operations. 5.3 In the absence of the June 30, 2012 reports cited under item 5.2 of this Circular, the agency’s latest report available shall be used by DBM as basis for withdrawal of allotment. The DBM shall compute/approximate the agency’s obligation level as of June 30 to derive its unobligated allotments as of same period. Example: If the March 31 SAOB or FRO reflects actual obligations of P 800M then the June 30 obligation level shall approximate to ₱1,600 M (i.e., ₱800 M x 2 quarters). 5.4 All released allotments in FY 2011 charged against R.A. No. 10147 which remained unobligated as of June 30, 2012 shall be immediately considered for withdrawal. This policy is based on the following considerations: 5.4.1 The departments/agencies’ approved priority programs and projects are assumed to be implementation-ready and doable during the given fiscal year; and 5.4.2 The practice of having substantial carryover appropriations may imply that the agency has a slower-than-programmed implementation capacity or agency tends to implement projects within a two-year timeframe. 5.5. Consistent with the President’s directive, the DBM shall, based on evaluation of the reports cited above and results of consultations with the departments/agencies, withdraw the unobligated allotments as of June 30, 2012 through issuance of negative Special Allotment Release Orders (SAROs). 5.6 DBM shall prepare and submit to the President, a report on the magnitude of withdrawn allotments. The report shall highlight the agencies which failed to submit the June 30 reports required under this Circular. 5.7 The withdrawn allotments may be: 5.7.1 Reissued for the original programs and projects of the agencies/OUs concerned, from which the allotments were withdrawn; 5.7.2 Realigned to cover additional funding for other existing programs and projects of the agency/OU; or 5.7.3 Used to augment existing programs and projects of any agency and to fund priority programs and projects not considered in the 2012 budget but expected to be started or implemented during the current year. 5.8 For items 5.7.1 and 5.7.2 above, agencies/OUs concerned may submit to DBM a Special Budget Request (SBR), supported with the following:

5.8.1 Physical and Financial Plan (PFP); 5.8.2 Monthly Cash Program (MCP); and 5.8.3 Proof that the project/activity has started the procurement processes i.e., Proof of Posting and/or Advertisement of the Invitation to Bid. 5.9 The deadline for submission of request/s pertaining to these categories shall be until the end of the third quarter i.e., September 30, 2012. After said cut-off date, the withdrawn allotments shall be pooled and form part of the overall savings of the national government. 5.10 Utilization of the consolidated withdrawn allotments for other priority programs and projects as cited under item 5.7.3 of this Circular, shall be subject to approval of the President. Based on the approval of the President, DBM shall issue the SARO to cover the approved priority expenditures subject to submission by the agency/OU concerned of the SBR and supported with PFP and MCP. 5.11 It is understood that all releases to be made out of the withdrawn allotments (both 2011 and 2012 unobligated allotments) shall be within the approved Expenditure Program level of the national government for the current year. The SAROs to be issued shall properly disclose the appropriation source of the release to determine the extent of allotment validity, as follows: • For charges under R.A. 10147 – allotments shall be valid up to December 31, 2012; and • For charges under R.A. 10155 – allotments shall be valid up to December 31, 2013. 5.12 Timely compliance with the submission of existing BARs and other reportorial requirements is reiterated for monitoring purposes. 6.0 Effectivity This circular shall take effect immediately. (Sgd.) FLORENCIO B. ABAD Secretary As can be seen, NBC No. 541 specified that the unobligated allotments of all agencies and departments as of June 30, 2012 that were charged against the continuing appropriations for fiscal year 2011 and the 2012 GAA (R.A. No. 10155) were subject to withdrawal through the issuance of negative SAROs, but such allotments could be either: (1) reissued for the original PAPs of the concerned agencies from which they were withdrawn; or (2) realigned to cover additional funding for other existing PAPs of the concerned agencies; or (3) used to augment existing PAPs of any agency and to fund priority PAPs not considered in the 2012 budget but expected to be started or implemented in 2012. Financing the other priority PAPs was made subject to the approval of the President. Note here that NBC No. 541 used terminologies like "realignment" and "augmentation" in the application of the withdrawn unobligated allotments. Taken together, all the issuances showed how the DAP was to be implemented and funded, that is — (1) by declaring "savings" coming from the various departments and agencies derived from pooling unobligated allotments and withdrawing unreleased appropriations; (2) releasing unprogrammed funds; and (3) applying the "savings" and unprogrammed funds to augment existing PAPs or to support other priority PAPs. c. DAP was not an appropriation measure; hence, no appropriation law was required to adopt or to implement it

Petitioners Syjuco, Luna, Villegas and PHILCONSA state that Congress did not enact a law to establish the DAP, or to authorize the disbursement and release of public funds to implement the DAP. Villegas, PHILCONSA, IBP, Araullo, and COURAGE observe that the appropriations funded under the DAP were not included in the 2011, 2012 and 2013 GAAs. To petitioners IBP, Araullo, and COURAGE, the DAP, being actually an appropriation that set aside public funds for public use, should require an enabling law for its validity. VACC maintains that the DAP, because it involved huge allocations that were separate and distinct from the GAAs, circumvented and duplicated the GAAs without congressional authorization and control. The petitioners contend in unison that based on how it was developed and implemented the DAP violated the mandate of Section 29(1), Article VI of the 1987 Constitution that "[n]o money shall be paid out of the Treasury except in pursuance of an appropriation made by law." The OSG posits, however, that no law was necessary for the adoption and implementation of the DAP because of its being neither a fund nor an appropriation, but a program or an administrative system of prioritizing spending; and that the adoption of the DAP was by virtue of the authority of the President as the Chief Executive to ensure that laws were faithfully executed. We agree with the OSG’s position. The DAP was a government policy or strategy designed to stimulate the economy through accelerated spending. In the context of the DAP’s adoption and implementation being a function pertaining to the Executive as the main actor during the Budget Execution Stage under its constitutional mandate to faithfully execute the laws, including the GAAs, Congress did not need to legislate to adopt or to implement the DAP. Congress could appropriate but would have nothing more to do during the Budget Execution Stage. Indeed, appropriation was the act by which Congress "designates a particular fund, or sets apart a specified portion of the public revenue or of the money in the public treasury, to be applied to some general object of governmental expenditure, or to some individual purchase or expense."124 As pointed out in Gonzales v. Raquiza:125 ‘"In a strict sense, appropriation has been defined ‘as nothing more than the legislative authorization prescribed by the Constitution that money may be paid out of the Treasury,’ while appropriation made by law refers to ‘the act of the legislature setting apart or assigning to a particular use a certain sum to be used in the payment of debt or dues from the State to its creditors.’" 126 On the other hand, the President, in keeping with his duty to faithfully execute the laws, had sufficient discretion during the execution of the budget to adapt the budget to changes in the country’s economic situation. 127 He could adopt a plan like the DAP for the purpose. He could pool the savings and identify the PAPs to be funded under the DAP. The pooling of savings pursuant to the DAP, and the identification of the PAPs to be funded under the DAP did not involve appropriation in the strict sense because the money had been already set apart from the public treasury by Congress through the GAAs. In such actions, the Executive did not usurp the power vested in Congress under Section 29(1), Article VI of the Constitution. 3. Unreleased appropriations and withdrawn unobligated allotments under the DAP were not savings, and the use of such appropriations contravened Section 25(5), Article VI of the 1987 Constitution. Notwithstanding our appreciation of the DAP as a plan or strategy validly adopted by the Executive to ramp up spending to accelerate economic growth, the challenges posed by the petitioners constrain us to dissect the mechanics of the actual execution of the DAP. The management and utilization of the public wealth inevitably demands a most careful scrutiny of whether the Executive’s implementation of the DAP was consistent with the Constitution, the relevant GAAs and other existing laws. a. Although executive discretion and flexibility are necessary in the execution of the budget, any transfer of appropriated funds

should conform to Section 25(5), Article VI of the Constitution We begin this dissection by reiterating that Congress cannot anticipate all issues and needs that may come into play once the budget reaches its execution stage. Executive discretion is necessary at that stage to achieve a sound fiscal administration and assure effective budget implementation. The heads of offices, particularly the President, require flexibility in their operations under performance budgeting to enable them to make whatever adjustments are needed to meet established work goals under changing conditions. 128 In particular, the power to transfer funds can give the President the flexibility to meet unforeseen events that may otherwise impede the efficient implementation of the PAPs set by Congress in the GAA. Congress has traditionally allowed much flexibility to the President in allocating funds pursuant to the GAAs,129particularly when the funds are grouped to form lump sum accounts.130 It is assumed that the agencies of the Government enjoy more flexibility when the GAAs provide broader appropriation items.131 This flexibility comes in the form of policies that the Executive may adopt during the budget execution phase. The DAP – as a strategy to improve the country’s economic position – was one policy that the President decided to carry out in order to fulfill his mandate under the GAAs. Denying to the Executive flexibility in the expenditure process would be counterproductive. In Presidential Spending Power,132 Prof. Louis Fisher, an American constitutional scholar whose specialties have included budget policy, has justified extending discretionary authority to the Executive thusly: [T]he impulse to deny discretionary authority altogether should be resisted. There are many number of reasons why obligations and outlays by administrators may have to differ from appropriations by legislators. Appropriations are made many months, and sometimes years, in advance of expenditures. Congress acts with imperfect knowledge in trying to legislate in fields that are highly technical and constantly undergoing change. New circumstances will develop to make obsolete and mistaken the decisions reached by Congress at the appropriation stage. It is not practicable for Congress to adjust to each new development by passing separate supplemental appropriation bills. Were Congress to control expenditures by confining administrators to narrow statutory details, it would perhaps protect its power of the purse but it would not protect the purse itself. The realities and complexities of public policy require executive discretion for the sound management of public funds. xxxx x x x The expenditure process, by its very nature, requires substantial discretion for administrators. They need to exercise judgment and take responsibility for their actions, but those actions ought to be directed toward executing congressional, not administrative policy. Let there be discretion, but channel it and use it to satisfy the programs and priorities established by Congress. In contrast, by allowing to the heads of offices some power to transfer funds within their respective offices, the Constitution itself ensures the fiscal autonomy of their offices, and at the same time maintains the separation of powers among the three main branches of the Government. The Court has recognized this, and emphasized so in Bengzon v. Drilon,133 viz: The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and constraints on the manner the independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy and violative not only of the express mandate of the Constitution but especially as regards the Supreme Court, of the independence and separation of powers upon which the entire fabric of our constitutional system is based. In the case of the President, the power to transfer funds from one item to another within the Executive has not been the mere offshoot of established usage, but has emanated from law itself. It has existed since the time of the American Governors-General.134 Act No. 1902 (An Act authorizing the Governor-General to direct any unexpended balances of appropriations be returned to the general fund of the Insular Treasury and to transfer from the general fund moneys which have been returned thereto), passed on May 18, 1909 by the First Philippine Legislature,135 was the first enabling law that granted statutory authority to the President to transfer funds. The

authority was without any limitation, for the Act explicitly empowered the Governor-General to transfer any unexpended balance of appropriations for any bureau or office to another, and to spend such balance as if it had originally been appropriated for that bureau or office. From 1916 until 1920, the appropriations laws set a cap on the amounts of funds that could be transferred, thereby limiting the power to transfer funds. Only 10% of the amounts appropriated for contingent or miscellaneous expenses could be transferred to a bureau or office, and the transferred funds were to be used to cover deficiencies in the appropriations also for miscellaneous expenses of said bureau or office. In 1921, the ceiling on the amounts of funds to be transferred from items under miscellaneous expenses to any other item of a certain bureau or office was removed. During the Commonwealth period, the power of the President to transfer funds continued to be governed by the GAAs despite the enactment of the Constitution in 1935. It is notable that the 1935 Constitution did not include a provision on the power to transfer funds. At any rate, a shift in the extent of the President’s power to transfer funds was again experienced during this era, with the President being given more flexibility in implementing the budget. The GAAs provided that the power to transfer all or portions of the appropriations in the Executive Department could be made in the "interest of the public, as the President may determine." 136 In its time, the 1971 Constitutional Convention wanted to curtail the President’s seemingly unbounded discretion in transferring funds.137 Its Committee on the Budget and Appropriation proposed to prohibit the transfer of funds among the separate branches of the Government and the independent constitutional bodies, but to allow instead their respective heads to augment items of appropriations from savings in their respective budgets under certain limitations.138 The clear intention of the Convention was to further restrict, not to liberalize, the power to transfer appropriations.139 Thus, the Committee on the Budget and Appropriation initially considered setting stringent limitations on the power to augment, and suggested that the augmentation of an item of appropriation could be made "by not more than ten percent if the original item of appropriation to be augmented does not exceed one million pesos, or by not more than five percent if the original item of appropriation to be augmented exceeds one million pesos."140 But two members of the Committee objected to the ₱1,000,000.00 threshold, saying that the amount was arbitrary and might not be reasonable in the future. The Committee agreed to eliminate the ₱1,000,000.00 threshold, and settled on the ten percent limitation.141 In the end, the ten percent limitation was discarded during the plenary of the Convention, which adopted the following final version under Section 16, Article VIII of the 1973 Constitution, to wit: (5) No law shall be passed authorizing any transfer of appropriations; however, the President, the Prime Minister, the Speaker, 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 1973 Constitution explicitly and categorically prohibited the transfer of funds from one item to another, unless Congress enacted a law authorizing the President, the Prime Minister, the Speaker, the Chief Justice of the Supreme Court, and the heads of the Constitutional omissions to transfer funds for the purpose of augmenting any item from savings in another item in the GAA of their respective offices. The leeway was limited to augmentation only, and was further constricted by the condition that the funds to be transferred should come from savings from another item in the appropriation of the office.142 On July 30, 1977, President Marcos issued PD No. 1177, providing in its Section 44 that: Section 44. Authority to Approve Fund Transfers. The President shall have the authority to transfer any fund appropriated for the different departments, bureaus, offices and agencies of the Executive Department which are included in the General Appropriations Act, to any program, project, or activity of any department, bureau or office included in the General Appropriations Act or approved after its enactment. The President shall, likewise, have the authority to augment any appropriation of the Executive Department in the General Appropriations Act, from savings in the appropriations of another department, bureau, office or agency within the Executive Branch, pursuant to the provisions of Article VIII, Section 16 (5) of the Constitution.

In Demetria v. Alba, however, the Court struck down the first paragraph of Section 44 for contravening Section 16(5)of the 1973 Constitution, ruling: Paragraph 1 of Section 44 of P.D. No. 1177 unduly over-extends the privilege granted under said Section 16. It empowers the President to indiscriminately transfer funds from one department, bureau, office or agency of the Executive Department to any program, project or activity of any department, bureau or office included in the General Appropriations Act or approved after its enactment, without regard as to whether or not the funds to be transferred are actually savings in the item from which the same are to be taken, or whether or not the transfer is for the purpose of augmenting the item to which said transfer is to be made. It does not only completely disregard the standards set in the fundamental law, thereby amounting to an undue delegation of legislative powers, but likewise goes beyond the tenor thereof. Indeed, such constitutional infirmities render the provision in question null and void.143 It is significant that Demetria was promulgated 25 days after the ratification by the people of the 1987 Constitution, whose Section 25(5) of Article VI is identical to Section 16(5), Article VIII of the 1973 Constitution, to wit: Section 25. x x x xxxx 5) No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations. xxxx The foregoing history makes it evident that the Constitutional Commission included Section 25(5), supra, to keep a tight rein on the exercise of the power to transfer funds appropriated by Congress by the President and the other high officials of the Government named therein. The Court stated in Nazareth v. Villar:144 In the funding of current activities, projects, and programs, the general rule should still be that the budgetary amount contained in the appropriations bill is the extent Congress will determine as sufficient for the budgetary allocation for the proponent agency. The only exception is found in Section 25 (5), Article VI of the Constitution, by which 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 are authorized to transfer appropriations to augmentany item in the GAA for their respective offices from the savings in other items of their respective appropriations. The plain language of the constitutional restriction leaves no room for the petitioner’s posture, which we should now dispose of as untenable. It bears emphasizing that the exception in favor of the high officials named in Section 25(5), Article VI of the Constitution limiting the authority to transfer savings only to augment another item in the GAA is strictly but reasonably construed as exclusive. As the Court has expounded in Lokin, Jr. v. Commission on Elections: When the statute itself enumerates the exceptions to the application of the general rule, the exceptions are strictly but reasonably construed. The exceptions extend only as far as their language fairly warrants, and all doubts should be resolved in favor of the general provision rather than the exceptions. Where the general rule is established by a statute with exceptions, none but the enacting authority can curtail the former. Not even the courts may add to the latter by implication, and it is a rule that an express exception excludes all others, although it is always proper in determining the applicability of the rule to inquire whether, in a particular case, it accords with reason and justice. The appropriate and natural office of the exception is to exempt something from the scope of the general words of a statute, which is otherwise within the scope and meaning of such general words. Consequently, the existence of an exception in a statute clarifies the intent that the statute shall apply to all cases not excepted. Exceptions are subject to the rule of strict construction; hence, any doubt will be resolved in favor of the general provision and

against the exception. Indeed, the liberal construction of a statute will seem to require in many circumstances that the exception, by which the operation of the statute is limited or abridged, should receive a restricted construction. Accordingly, we should interpret Section 25(5), supra, in the context of a limitation on the President’s discretion over the appropriations during the Budget Execution Phase. b. Requisites for the valid transfer of appropriated funds under Section 25(5), Article VI of the 1987 Constitution The transfer of appropriated funds, to be valid under Section 25(5), supra, must be made upon a concurrence of the following requisites, namely: (1) There is a law authorizing 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 the Constitutional Commissions to transfer funds within their respective offices; (2) The funds to be transferred are savings generated from the appropriations for their respective offices; and (3) The purpose of the transfer is to augment an item in the general appropriations law for their respective offices. b.1. First Requisite–GAAs of 2011 and 2012 lacked valid provisions to authorize transfers of funds under the DAP; hence, transfers under the DAP were unconstitutional Section 25(5), supra, not being a self-executing provision of the Constitution, must have an implementing law for it to be operative. That law, generally, is the GAA of a given fiscal year. To comply with the first requisite, the GAAs should expressly authorize the transfer of funds. Did the GAAs expressly authorize the transfer of funds? In the 2011 GAA, the provision that gave the President and the other high officials the authority to transfer funds was Section 59, as follows: Section 59. Use of Savings. The President of the Philippines, the Senate President, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, the Heads of Constitutional Commissions enjoying fiscal autonomy, and the Ombudsman are hereby authorized to augment any item in this Act from savings in other items of their respective appropriations. In the 2012 GAA, the empowering provision was Section 53, to wit: Section 53. Use of Savings. The President of the Philippines, the Senate President, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, the Heads of Constitutional Commissions enjoying fiscal autonomy, and the Ombudsman are hereby authorized to augment any item in this Act from savings in other items of their respective appropriations. In fact, the foregoing provisions of the 2011 and 2012 GAAs were cited by the DBM as justification for the use of savings under the DAP.145 A reading shows, however, that the aforequoted provisions of the GAAs of 2011 and 2012 were textually unfaithful to the Constitution for not carrying the phrase "for their respective offices" contained in Section 25(5), supra. The impact of the phrase "for their respective offices" was to authorize only transfers of funds within their offices (i.e., in the case of the President, the transfer was to an item of appropriation within the Executive). The

provisions carried a different phrase ("to augment any item in this Act"), and the effect was that the 2011 and 2012 GAAs thereby literally allowed the transfer of funds from savings to augment any item in the GAAs even if the item belonged to an office outside the Executive. To that extent did the 2011 and 2012 GAAs contravene the Constitution. At the very least, the aforequoted provisions cannot be used to claim authority to transfer appropriations from the Executive to another branch, or to a constitutional commission. Apparently realizing the problem, Congress inserted the omitted phrase in the counterpart provision in the 2013 GAA, to wit: Section 52. Use of Savings. The President of the Philippines, the Senate President, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, the Heads of Constitutional Commissions enjoying fiscal autonomy, and the Ombudsman are hereby authorized to use savings in their respective appropriations to augment actual deficiencies incurred for the current year in any item of their respective appropriations. Even had a valid law authorizing the transfer of funds pursuant to Section 25(5), supra, existed, there still remained two other requisites to be met, namely: that the source of funds to be transferred were savings from appropriations within the respective offices; and that the transfer must be for the purpose of augmenting an item of appropriation within the respective offices. b.2. Second Requisite – There were no savings from which funds could be sourced for the DAP Were the funds used in the DAP actually savings? The petitioners claim that the funds used in the DAP — the unreleased appropriations and withdrawn unobligated allotments — were not actual savings within the context of Section 25(5), supra, and the relevant provisions of the GAAs. Belgica argues that "savings" should be understood to refer to the excess money after the items that needed to be funded have been funded, or those that needed to be paid have been paid pursuant to the budget.146 The petitioners posit that there could be savings only when the PAPs for which the funds had been appropriated were actually implemented and completed, or finally discontinued or abandoned. They insist that savings could not be realized with certainty in the middle of the fiscal year; and that the funds for "slow-moving" PAPs could not be considered as savings because such PAPs had not actually been abandoned or discontinued yet.147 They stress that NBC No. 541, by allowing the withdrawn funds to be reissued to the "original program or project from which it was withdrawn," conceded that the PAPs from which the supposed savings were taken had not been completed, abandoned or discontinued.148 The OSG represents that "savings" were "appropriations balances," being the difference between the appropriation authorized by Congress and the actual amount allotted for the appropriation; that the definition of "savings" in the GAAs set only the parameters for determining when savings occurred; that it was still the President (as well as the other officers vested by the Constitution with the authority to augment) who ultimately determined when savings actually existed because savings could be determined only during the stage of budget execution; that the President must be given a wide discretion to accomplish his tasks; and that the withdrawn unobligated allotments were savings inasmuch as they were clearly "portions or balances of any programmed appropriation…free from any obligation or encumbrances which are (i) still available after the completion or final discontinuance or abandonment of the work, activity or purpose for which the appropriation is authorized…" We partially find for the petitioners. In ascertaining the meaning of savings, certain principles should be borne in mind. The first principle is that Congress wields the power of the purse. Congress decides how the budget will be spent; what PAPs to fund; and the amounts of money to be spent for each PAP. The second principle is that the Executive, as the department of the Government tasked to enforce the laws, is expected to faithfully execute the GAA and to spend the budget in accordance with the provisions of the GAA.149 The Executive is expected to faithfully implement the PAPs for which Congress allocated funds, and to limit the expenditures within the allocations, unless exigencies result to deficiencies for which augmentation is authorized, subject to the conditions provided by law. The third principle is that in making the President’s power to augment operative under the GAA, Congress recognizes the need for flexibility in budget execution. In so doing, Congress diminishes its own power of the purse, for it delegates a

fraction of its power to the Executive. But Congress does not thereby allow the Executive to override its authority over the purse as to let the Executive exceed its delegated authority. And the fourth principle is that savings should be actual. "Actual" denotes something that is real or substantial, or something that exists presently in fact, as opposed to something that is merely theoretical, possible, potential or hypothetical. 150 The foregoing principles caution us to construe savings strictly against expanding the scope of the power to augment. It is then indubitable that the power to augment was to be used only when the purpose for which the funds had been allocated were already satisfied, or the need for such funds had ceased to exist, for only then could savings be properly realized. This interpretation prevents the Executive from unduly transgressing Congress’ power of the purse. The definition of "savings" in the GAAs, particularly for 2011, 2012 and 2013, reflected this interpretation and made it operational, viz: Savings refer to portions or balances of any programmed appropriation in this Act free from any obligation or encumbrance which are: (i) still available after the completion or final discontinuance or abandonment of the work, activity or purpose for which the appropriation is authorized; (ii) from appropriations balances arising from unpaid compensation and related costs pertaining to vacant positions and leaves of absence without pay; and (iii) from appropriations balances realized from the implementation of measures resulting in improved systems and efficiencies and thus enabled agencies to meet and deliver the required or planned targets, programs and services approved in this Act at a lesser cost. The three instances listed in the GAAs’ aforequoted definition were a sure indication that savings could be generated only upon the purpose of the appropriation being fulfilled, or upon the need for the appropriation being no longer existent. The phrase "free from any obligation or encumbrance" in the definition of savings in the GAAs conveyed the notion that the appropriation was at that stage when the appropriation was already obligated and the appropriation was already released. This interpretation was reinforced by the enumeration of the three instances for savings to arise, which showed that the appropriation referred to had reached the agency level. It could not be otherwise, considering that only when the appropriation had reached the agency level could it be determined whether (a) the PAP for which the appropriation had been authorized was completed, finally discontinued, or abandoned; or (b) there were vacant positions and leaves of absence without pay; or (c) the required or planned targets, programs and services were realized at a lesser cost because of the implementation of measures resulting in improved systems and efficiencies. The DBM declares that part of the savings brought under the DAP came from "pooling of unreleased appropriations such as unreleased Personnel Services appropriations which will lapse at the end of the year, unreleased appropriations of slow moving projects and discontinued projects per Zero-Based Budgeting findings." The declaration of the DBM by itself does not state the clear legal basis for the treatment of unreleased or unalloted appropriations as savings. The fact alone that the appropriations are unreleased or unalloted is a mere description of the status of the items as unalloted or unreleased. They have not yet ripened into categories of items from which savings can be generated. Appropriations have been considered "released" if there has already been an allotment or authorization to incur obligations and disbursement authority. This means that the DBM has issued either an ABM (for those not needing clearance), or a SARO (for those needing clearance), and consequently an NCA, NCAA or CDC, as the case may be. Appropriations remain unreleased, for instance, because of noncompliance with documentary requirements (like the Special Budget Request), or simply because of the unavailability of funds. But the appropriations do not actually reach the agencies to which they were allocated under the GAAs, and have remained with the DBM technically speaking. Ergo, unreleased appropriations refer to appropriations with allotments but without disbursement authority. For us to consider unreleased appropriations as savings, unless these met the statutory definition of savings, would seriously undercut the congressional power of the purse, because such appropriations had not even reached and been used by the agency concerned vis-à-vis the PAPs for which Congress had allocated them.

However, if an agency has unfilled positions in its plantilla and did not receive an allotment and NCA for such vacancies, appropriations for such positions, although unreleased, may already constitute savings for that agency under the second instance. Unobligated allotments, on the other hand, were encompassed by the first part of the definition of "savings" in the GAA, that is, as "portions or balances of any programmed appropriation in this Act free from any obligation or encumbrance." But the first part of the definition was further qualified by the three enumerated instances of when savings would be realized. As such, unobligated allotments could not be indiscriminately declared as savings without first determining whether any of the three instances existed. This signified that the DBM’s withdrawal of unobligated allotments had disregarded the definition of savings under the GAAs. Justice Carpio has validly observed in his Separate Concurring Opinion that MOOE appropriations are deemed divided into twelve monthly allocations within the fiscal year; hence, savings could be generated monthly from the excess or unused MOOE appropriations other than the Mandatory Expenditures and Expenditures for Businesstype Activities because of the physical impossibility to obligate and spend such funds as MOOE for a period that already lapsed. Following this observation, MOOE for future months are not savings and cannot be transferred. The DBM’s Memorandum for the President dated June 25, 2012 (which became the basis of NBC No. 541) stated: ON THE AUTHORITY TO WITHDRAW UNOBLIGATED ALLOTMENTS 5.0 The DBM, during the course of performance reviews conducted on the agencies’ operations, particularly on the implementation of their projects/activities, including expenses incurred in undertaking the same, have been continuously calling the attention of all National Government agencies (NGAs) with low levels of obligations as of end of the first quarter to speedup the implementation of their programs and projects in the second quarter. 6.0 Said reminders were made in a series of consultation meetings with the concerned agencies and with call-up letters sent. 7.0 Despite said reminders and the availability of funds at the department’s disposal, the level of financial performance of some departments registered below program, with the targeted obligations/disbursements for the first semester still not being met. 8.0 In order to maximize the use of the available allotment, all unobligated balances as of June 30, 2012, both for continuing and current allotments shall be withdrawn and pooled to fund fast moving programs/projects. 9.0 It may be emphasized that the allotments to be withdrawn will be based on the list of slow moving projects to be identified by the agencies and their catch up plans to be evaluated by the DBM. It is apparent from the foregoing text that the withdrawal of unobligated allotments would be based on whether the allotments pertained to slow-moving projects, or not. However, NBC No. 541 did not set in clear terms the criteria for the withdrawal of unobligated allotments, viz: 3.1. These guidelines shall cover the withdrawal of unobligated allotments as of June 30, 2012 ofall national government agencies (NGAs) charged against FY 2011 Continuing Appropriation (R.A. No. 10147) and FY 2012 Current Appropriation (R.A. No. 10155), pertaining to: 3.1.1 Capital Outlays (CO); 3.1.2 Maintenance and Other Operating Expenses (MOOE) related to the implementation of programs and projects, as well as capitalized MOOE; and

3.1.3 Personal Services corresponding to unutilized pension benefits declared as savings by the agencies concerned based on their undated/validated list of pensioners. A perusal of its various provisions reveals that NBC No. 541 targeted the "withdrawal of unobligated allotments of agencies with low levels of obligations"151 "to fund priority and/or fast-moving programs/projects."152 But the fact that the withdrawn allotments could be "[r]eissued for the original programs and projects of the agencies/OUs concerned, from which the allotments were withdrawn"153 supported the conclusion that the PAPs had not yet been finally discontinued or abandoned. Thus, the purpose for which the withdrawn funds had been appropriated was not yet fulfilled, or did not yet cease to exist, rendering the declaration of the funds as savings impossible. Worse, NBC No. 541 immediately considered for withdrawal all released allotments in 2011 charged against the 2011 GAA that had remained unobligated based on the following considerations, to wit: 5.4.1 The departments/agencies’ approved priority programs and projects are assumed to be implementation-ready and doable during the given fiscal year; and 5.4.2 The practice of having substantial carryover appropriations may imply that the agency has a slowerthan-programmed implementation capacity or agency tends to implement projects within a two-year timeframe. Such withdrawals pursuant to NBC No. 541, the circular that affected the unobligated allotments for continuing and current appropriations as of June 30, 2012, disregarded the 2-year period of availability of the appropriations for MOOE and capital outlay extended under Section 65, General Provisions of the 2011 GAA, viz: Section 65. Availability of Appropriations. — Appropriations for MOOE and capital outlays authorized in this Act shall be available for release and obligation for the purpose specified, and under the same special provisions applicable thereto, for a period extending to one fiscal year after the end of the year in which such items were appropriated: PROVIDED, That appropriations for MOOE and capital outlays under R.A. No. 9970 shall be made available up to the end of FY 2011: PROVIDED, FURTHER, That a report on these releases and obligations shall be submitted to the Senate Committee on Finance and the House Committee on Appropriations. and Section 63 General Provisions of the 2012 GAA, viz: Section 63. Availability of Appropriations. — Appropriations for MOOE and capital outlays authorized in this Act shall be available for release and obligation for the purpose specified, and under the same special provisions applicable thereto, for a period extending to one fiscal year after the end of the year in which such items were appropriated: PROVIDED, That a report on these releases and obligations shall be submitted to the Senate Committee on Finance and the House Committee on Appropriations, either in printed form or by way of electronic document.154 Thus, another alleged area of constitutional infirmity was that the DAP and its relevant issuances shortened the period of availability of the appropriations for MOOE and capital outlays. Congress provided a one-year period of availability of the funds for all allotment classes in the 2013 GAA (R.A. No. 10352), to wit: Section 63. Availability of Appropriations.— All appropriations authorized in this Act shall be available for release and obligation for the purposes specified, and under the same special provisions applicable thereto, until the end of FY 2013: PROVIDED, That a report on these releases and obligations shall be submitted to the Senate Committee on Finance and House Committee on Appropriations, either in printed form or by way of electronic document. Yet, in his memorandum for the President dated May 20, 2013, Sec. Abad sought omnibus authority to consolidate savings and unutilized balances to fund the DAP on a quarterly basis, viz:

7.0 If the level of financial performance of some department will register below program, even with the availability of funds at their disposal, the targeted obligations/disbursements for each quarter will not be met. It is important to note that these funds will lapse at the end of the fiscal year if these remain unobligated. 8.0 To maximize the use of the available allotment, all unobligated balances at the end of every quarter, both for continuing and current allotments shall be withdrawn and pooled to fund fast moving programs/projects. 9.0 It may be emphasized that the allotments to be withdrawn will be based on the list of slow moving projects to be identified by the agencies and their catch up plans to be evaluated by the DBM. The validity period of the affected appropriations, already given the brief Lifes pan of one year, was further shortened to only a quarter of a year under the DBM’s memorandum dated May 20, 2013. The petitioners accuse the respondents of forcing the generation of savings in order to have a larger fund available for discretionary spending. They aver that the respondents, by withdrawing unobligated allotments in the middle of the fiscal year, in effect deprived funding for PAPs with existing appropriations under the GAAs. 155 The respondents belie the accusation, insisting that the unobligated allotments were being withdrawn upon the instance of the implementing agencies based on their own assessment that they could not obligate those allotments pursuant to the President’s directive for them to spend their appropriations as quickly as they could in order to ramp up the economy.156 We agree with the petitioners. Contrary to the respondents’ insistence, the withdrawals were upon the initiative of the DBM itself. The text of NBC No. 541 bears this out, to wit: 5.2 For the purpose of determining the amount of unobligated allotments that shall be withdrawn, all departments/agencies/operating units (OUs) shall submit to DBM not later than July 30, 2012, the following budget accountability reports as of June 30, 2012; • Statement of Allotments, Obligation and Balances (SAOB); • Financial Report of Operations (FRO); and • Physical Report of Operations. 5.3 In the absence of the June 30, 2012 reports cited under item 5.2 of this Circular, the agency’s latest report available shall be used by DBM as basis for withdrawal of allotment. The DBM shall compute/approximate the agency’s obligation level as of June 30 to derive its unobligated allotments as of same period. Example: If the March 31 SAOB or FRO reflects actual obligations of P 800M then the June 30 obligation level shall approximate to ₱1,600 M (i.e., ₱800 M x 2 quarters). The petitioners assert that no law had authorized the withdrawal and transfer of unobligated allotments and the pooling of unreleased appropriations; and that the unbridled withdrawal of unobligated allotments and the retention of appropriated funds were akin to the impoundment of appropriations that could be allowed only in case of "unmanageable national government budget deficit" under the GAAs, 157 thus violating the provisions of the GAAs of 2011, 2012 and 2013 prohibiting the retention or deduction of allotments.158 In contrast, the respondents emphasize that NBC No. 541 adopted a spending, not saving, policy as a last-ditch effort of the Executive to push agencies into actually spending their appropriations; that such policy did not amount to an impoundment scheme, because impoundment referred to the decision of the Executive to refuse to spend funds for political or ideological reasons; and that the withdrawal of allotments under NBC No. 541 was made pursuant to Section 38, Chapter 5, Book VI of the Administrative Code, by which the President was granted

the authority to suspend or otherwise stop further expenditure of funds allotted to any agency whenever in his judgment the public interest so required. The assertions of the petitioners are upheld. The withdrawal and transfer of unobligated allotments and the pooling of unreleased appropriations were invalid for being bereft of legal support. Nonetheless, such withdrawal of unobligated allotments and the retention of appropriated funds cannot be considered as impoundment. According to Philippine Constitution Association v. Enriquez:159 "Impoundment refers to a refusal by the President, for whatever reason, to spend funds made available by Congress. It is the failure to spend or obligate budget authority of any type." Impoundment under the GAA is understood to mean the retention or deduction of appropriations. The 2011 GAA authorized impoundment only in case of unmanageable National Government budget deficit, to wit: Section 66. Prohibition Against Impoundment of Appropriations. No appropriations authorized under this Act shall be impounded through retention or deduction, unless in accordance with the rules and regulations to be issued by the DBM: PROVIDED, That all the funds appropriated for the purposes, programs, projects and activities authorized under this Act, except those covered under the Unprogrammed Fund, shall be released pursuant to Section 33 (3), Chapter 5, Book VI of E.O. No. 292. Section 67. Unmanageable National Government Budget Deficit. Retention or deduction of appropriations authorized in this Act shall be effected only in cases where there is an unmanageable national government budget deficit. Unmanageable national government budget deficit as used in this section shall be construed to mean that (i) the actual national government budget deficit has exceeded the quarterly budget deficit targets consistent with the full-year target deficit as indicated in the FY 2011 Budget of Expenditures and Sources of Financing submitted by the President and approved by Congress pursuant to Section 22, Article VII of the Constitution, or (ii) there are clear economic indications of an impending occurrence of such condition, as determined by the Development Budget Coordinating Committee and approved by the President. The 2012 and 2013 GAAs contained similar provisions. The withdrawal of unobligated allotments under the DAP should not be regarded as impoundment because it entailed only the transfer of funds, not the retention or deduction of appropriations. Nor could Section 68 of the 2011 GAA (and the similar provisions of the 2012 and 2013 GAAs) be applicable. They uniformly stated: Section 68. Prohibition Against Retention/Deduction of Allotment. Fund releases from appropriations provided in this Act shall be transmitted intact or in full to the office or agency concerned. No retention or deduction as reserves or overhead shall be made, except as authorized by law, or upon direction of the President of the Philippines. The COA shall ensure compliance with this provision to the extent that sub-allotments by agencies to their subordinate offices are in conformity with the release documents issued by the DBM. The provision obviously pertained to the retention or deduction of allotments upon their release from the DBM, which was a different matter altogether. The Court should not expand the meaning of the provision by applying it to the withdrawal of allotments. The respondents rely on Section 38, Chapter 5, Book VI of the Administrative Code of 1987 to justify the withdrawal of unobligated allotments. But the provision authorized only the suspension or stoppage of further expenditures, not the withdrawal of unobligated allotments, to wit: Section 38. Suspension of Expenditure of Appropriations.- Except as otherwise provided in the General Appropriations Act and whenever in his judgment the public interest so requires, the President, upon notice to the

head of office concerned, is authorized to suspend or otherwise stop further expenditure of funds allotted for any agency, or any other expenditure authorized in the General Appropriations Act, except for personal services appropriations used for permanent officials and employees. Moreover, the DBM did not suspend or stop further expenditures in accordance with Section 38, supra, but instead transferred the funds to other PAPs. It is relevant to remind at this juncture that the balances of appropriations that remained unexpended at the end of the fiscal year were to be reverted to the General Fund.1âwphi1 This was the mandate of Section 28, Chapter IV, Book VI of the Administrative Code, to wit: Section 28. Reversion of Unexpended Balances of Appropriations, Continuing Appropriations.- Unexpended balances of appropriations authorized in the General Appropriation Act shall revert to the unappropriated surplus of the General Fund at the end of the fiscal year and shall not thereafter be available for expenditure except by subsequent legislative enactment: Provided, that appropriations for capital outlays shall remain valid until fully spent or reverted: provided, further, that continuing appropriations for current operating expenditures may be specifically recommended and approved as such in support of projects whose effective implementation calls for multi-year expenditure commitments: provided, finally, that the President may authorize the use of savings realized by an agency during given year to meet non-recurring expenditures in a subsequent year. The balances of continuing appropriations shall be reviewed as part of the annual budget preparation process and the preparation process and the President may approve upon recommendation of the Secretary, the reversion of funds no longer needed in connection with the activities funded by said continuing appropriations. The Executive could not circumvent this provision by declaring unreleased appropriations and unobligated allotments as savings prior to the end of the fiscal year. b.3. Third Requisite – No funds from savings could be transferred under the DAP to augment deficient items not provided in the GAA The third requisite for a valid transfer of funds is that the purpose of the transfer should be "to augment an item in the general appropriations law for the respective offices." The term "augment" means to enlarge or increase in size, amount, or degree.160 The GAAs for 2011, 2012 and 2013 set as a condition for augmentation that the appropriation for the PAP item to be augmented must be deficient, to wit: – x x x Augmentation implies the existence in this Act of a program, activity, or project with an appropriation, which upon implementation, or subsequent evaluation of needed resources, is determined to be deficient. In no case shall a non-existent program, activity, or project, be funded by augmentation from savings or by the use of appropriations otherwise authorized in this Act. In other words, an appropriation for any PAP must first be determined to be deficient before it could be augmented from savings. Note is taken of the fact that the 2013 GAA already made this quite clear, thus: Section 52. Use of Savings. The President of the Philippines, the Senate President, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, the Heads of Constitutional Commissions enjoying fiscal autonomy, and the Ombudsman are hereby authorized to use savings in their respective appropriations to augment actual deficiencies incurred for the current year in any item of their respective appropriations. As of 2013, a total of ₱144.4 billion worth of PAPs were implemented through the DAP. 161 Of this amount ₱82.5 billion were released in 2011 and ₱54.8 billion in 2012.162 Sec. Abad has reported that 9% of the total DAP releases were applied to the PAPs identified by the legislators. 163

The petitioners disagree, however, and insist that the DAP supported the following PAPs that had not been covered with appropriations in the respective GAAs, namely: (i) ₱1.5 billion for the Cordillera People’s Liberation Army; (ii) ₱1.8 billion for the Moro National Liberation Front; (iii) ₱700 million for assistance to Quezon Province;164 (iv) ₱50 million to ₱100 (million) each to certain senators;165 (v) ₱10 billion for the relocation of families living along dangerous zones under the National Housing Authority; (vi) ₱10 billion and ₱20 billion equity infusion under the Bangko Sentral; (vii) ₱5.4 billion landowners’ compensation under the Department of Agrarian Reform; (viii) ₱8.6 billion for the ARMM comprehensive peace and development program; (ix) ₱6.5 billion augmentation of LGU internal revenue allotments (x) ₱5 billion for crucial projects like tourism road construction under the Department of Tourism and the Department of Public Works and Highways; (xi) ₱1.8 billion for the DAR-DPWH Tulay ng Pangulo; (xii) ₱1.96 billion for the DOH-DPWH rehabilitation of regional health units; and (xiii) ₱4 billion for the DepEd-PPP school infrastructure projects.166 In refutation, the OSG argues that a total of 116 DAP-financed PAPs were implemented, had appropriation covers, and could properly be accounted for because the funds were released following and pursuant to the standard practices adopted by the DBM.167 In support of its argument, the OSG has submitted seven evidence packets containing memoranda, SAROs, and other pertinent documents relative to the implementation and fund transfers under the DAP.168 Upon careful review of the documents contained in the seven evidence packets, we conclude that the "savings" pooled under the DAP were allocated to PAPs that were not covered by any appropriations in the pertinent GAAs. For example, the SARO issued on December 22, 2011 for the highly vaunted Disaster Risk, Exposure, Assessment and Mitigation (DREAM) project under the Department of Science and Technology (DOST) covered the amount of ₱1.6 Billion,169 broken down as follows: APPROPRIATION CODE A.03.a.01.a

PARTICULARS Generation of new knowledge and technologies and research capability building in priority areas identified as strategic to National Development Personnel Services Maintenance and Other Operating Expenses Capital Outlays

AMOUNT AUTHORIZED

P 43,504,024 1,164,517,589 391,978,387 P 1,600,000,000

the pertinent provision of the 2011 GAA (R.A. No. 10147) showed that Congress had appropriated only ₱537,910,000 for MOOE, but nothing for personnel services and capital outlays, to wit: Personnel Services

Maintenance and Other Operating Expenditures

Capital Outlays

TOTAL

III. Operations a. Funding Assistance to Science 177,406,000 1,887,365,000 49,090,000 2,113,861,000 and Technology Activities 1. Central Office a. Generation of new knowledge and technologies and research capability building in priority areas identified as strategic to National Development

1,554,238,000

1,554,238,000

537,910,000

537,910,000

Aside from this transfer under the DAP to the DREAM project exceeding by almost 300% the appropriation by Congress for the program Generation of new knowledge and technologies and research capability building in priority areas identified as strategic to National Development, the Executive allotted funds for personnel services and capital outlays. The Executive thereby substituted its will to that of Congress. Worse, the Executive had not earlier proposed any amount for personnel services and capital outlays in the NEP that became the basis of the 2011 GAA.170 It is worth stressing in this connection that the failure of the GAAs to set aside any amounts for an expense category sufficiently indicated that Congress purposely did not see fit to fund, much less implement, the PAP concerned. This indication becomes clearer when even the President himself did not recommend in the NEP to fund the PAP. The consequence was that any PAP requiring expenditure that did not receive any appropriation under the GAAs could only be a new PAP, any funding for which would go beyond the authority laid down by Congress in enacting the GAAs. That happened in some instances under the DAP. In relation to the December 22, 2011 SARO issued to the Philippine Council for Industry, Energy and Emerging Technology Research and Development (DOST-PCIEETRD)171 for Establishment of the Advanced Failure Analysis Laboratory, which reads: APPROPRIATION CODE

A.02.a

PARTICULARS Development, integration and coordination of the National Research System for Industry, Energy and Emerging Technology and Related Fields Capital Outlays

AMOUNT AUTHORIZED

P 300,000,000

the appropriation code and the particulars appearing in the SARO did not correspond to the program specified in the GAA, whose particulars were Research and Management Services(inclusive of the following activities: (1) Technological and Economic Assessment for Industry, Energy and Utilities; (2) Dissemination of Science and Technology Information; and (3) Management of PCIERD Information System for Industry, Energy and Utilities. Even assuming that Development, integration and coordination of the National Research System for Industry, Energy and Emerging Technology and Related Fields– the particulars stated in the SARO – could fall under the broad program description of Research and Management Services– as appearing in the SARO, it would

nonetheless remain a new activity by reason of its not being specifically stated in the GAA. As such, the DBM, sans legislative authorization, could not validly fund and implement such PAP under the DAP. In defending the disbursements, however, the OSG contends that the Executive enjoyed sound discretion in implementing the budget given the generality in the language and the broad policy objectives identified under the GAAs;172 and that the President enjoyed unlimited authority to spend the initial appropriations under his authority to declare and utilize savings,173 and in keeping with his duty to faithfully execute the laws. Although the OSG rightly contends that the Executive was authorized to spend in line with its mandate to faithfully execute the laws (which included the GAAs), such authority did not translate to unfettered discretion that allowed the President to substitute his own will for that of Congress. He was still required to remain faithful to the provisions of the GAAs, given that his power to spend pursuant to the GAAs was but a delegation to him from Congress. Verily, the power to spend the public wealth resided in Congress, not in the Executive. 174 Moreover, leaving the spending power of the Executive unrestricted would threaten to undo the principle of separation of powers.175 Congress acts as the guardian of the public treasury in faithful discharge of its power of the purse whenever it deliberates and acts on the budget proposal submitted by the Executive. 176 Its power of the purse is touted as the very foundation of its institutional strength,177 and underpins "all other legislative decisions and regulating the balance of influence between the legislative and executive branches of government."178 Such enormous power encompasses the capacity to generate money for the Government, to appropriate public funds, and to spend the money.179 Pertinently, when it exercises its power of the purse, Congress wields control by specifying the PAPs for which public money should be spent. It is the President who proposes the budget but it is Congress that has the final say on matters of appropriations.180For this purpose, appropriation involves two governing principles, namely: (1) "a Principle of the Public Fisc, asserting that all monies received from whatever source by any part of the government are public funds;" and (2) "a Principle of Appropriations Control, prohibiting expenditure of any public money without legislative authorization."181To conform with the governing principles, the Executive cannot circumvent the prohibition by Congress of an expenditure for a PAP by resorting to either public or private funds.182 Nor could the Executive transfer appropriated funds resulting in an increase in the budget for one PAP, for by so doing the appropriation for another PAP is necessarily decreased. The terms of both appropriations will thereby be violated. b.4 Third Requisite – Cross-border augmentations from savings were prohibited by the Constitution By providing that 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 the Constitutional Commissions may be authorized to augment any item in the GAA "for their respective offices," Section 25(5), supra, has delineated borders between their offices, such that funds appropriated for one office are prohibited from crossing over to another office even in the guise of augmentation of a deficient item or items. Thus, we call such transfers of funds cross-border transfers or cross-border augmentations. To be sure, the phrase "respective offices" used in Section 25(5), supra, refers to the entire Executive, with respect to the President; the Senate, with respect to the Senate President; the House of Representatives, with respect to the Speaker; the Judiciary, with respect to the Chief Justice; the Constitutional Commissions, with respect to their respective Chairpersons. Did any cross-border transfers or augmentations transpire? During the oral arguments on January 28, 2014, Sec. Abad admitted making some cross-border augmentations, to wit: JUSTICE BERSAMIN:

Alright, the whole time that you have been Secretary of Department of Budget and Management, did the Executive Department ever redirect any part of savings of the National Government under your control cross border to another department? SECRETARY ABAD: Well, in the Memos that we submitted to you, such an instance, Your Honor JUSTICE BERSAMIN: Can you tell me two instances? I don’t recall having read your material. SECRETARY ABAD: Well, the first instance had to do with a request from the House of Representatives. They started building their elibrary in 2010 and they had a budget for about 207 Million but they lack about 43 Million to complete its 250 Million requirements. Prior to that, the COA, in an audit observation informed the Speaker that they had to continue with that construction otherwise the whole building, as well as the equipments therein may suffer from serious deterioration. And at that time, since the budget of the House of Representatives was not enough to complete 250 Million, they wrote to the President requesting for an augmentation of that particular item, which was granted, Your Honor. The second instance in the Memos is a request from the Commission on Audit. At the time they were pushing very strongly the good governance programs of the government and therefore, part of that is a requirement to conduct audits as well as review financial reports of many agencies. And in the performance of that function, the Commission on Audit needed information technology equipment as well as hire consultants and litigators to help them with their audit work and for that they requested funds from the Executive and the President saw that it was important for the Commission to be provided with those IT equipments and litigators and consultants and the request was granted, Your Honor. JUSTICE BERSAMIN: These cross border examples, cross border augmentations were not supported by appropriations… SECRETARY ABAD: They were, we were augmenting existing items within their… (interrupted) JUSTICE BERSAMIN: No, appropriations before you augmented because this is a cross border and the tenor or text of the Constitution is quite clear as far as I am concerned. It says here, "The power to augment may only be made to increase any item in the General Appropriations Law for their respective offices." Did you not feel constricted by this provision? SECRETARY ABAD: Well, as the Constitution provides, the prohibition we felt was on the transfer of appropriations, Your Honor. What we thought we did was to transfer savings which was needed by the Commission to address deficiency in an existing item in both the Commission as well as in the House of Representatives; that’s how we saw…(interrupted) JUSTICE BERSAMIN: So your position as Secretary of Budget is that you could do that? SECRETARY ABAD:

In an extreme instances because…(interrupted) JUSTICE BERSAMIN: No, no, in all instances, extreme or not extreme, you could do that, that’s your feeling. SECRETARY ABAD: Well, in that particular situation when the request was made by the Commission and the House of Representatives, we felt that we needed to respond because we felt…(interrupted). 183 The records show, indeed, that funds amounting to ₱143,700,000.00 and ₱250,000,000.00 were transferred under the DAP respectively to the COA184 and the House of Representatives.185 Those transfers of funds, which constituted cross-border augmentations for being from the Executive to the COA and the House of Representatives, are graphed as follows:186

OFFICE

Commission on Audit

PURPOSE

DATE RELEASED

IT Infrastructure Program and hiring of additional litigation experts

Congress – Completion of the construction of the House of Legislative Library and Archives Representatives Building/Congressional e-library

AMOUNT (In thousand pesos) Reserve Imposed

11/11/11 07/23/12

Releases 143,700

207,034 (Savings of HOR)

250,000

The respondents further stated in their memorandum that the President "made available" to the "Commission on Elections the savings of his department upon [its] request for funds…"187 This was another instance of a crossborder augmentation. The respondents justified all the cross-border transfers thusly: 99. The Constitution does not prevent the President from transferring savings of his department to another department upon the latter’s request, provided it is the recipient department that uses such funds to augment its own appropriation. In such a case, the President merely gives the other department access to public funds but he cannot dictate how they shall be applied by that department whose fiscal autonomy is guaranteed by the Constitution.188 In the oral arguments held on February 18, 2014, Justice Vicente V. Mendoza, representing Congress, announced a different characterization of the cross-border transfers of funds as in the nature of "aid" instead of "augmentation," viz: HONORABLE MENDOZA: The cross-border transfers, if Your Honors please, is not an application of the DAP. What were these crossborder transfers? They are transfers of savings as defined in the various General Appropriations Act. So, that makes it similar to the DAP, the use of savings. There was a cross-border which appears to be in violation of Section 25, paragraph 5 of Article VI, in the sense that the border was crossed. But never has it been claimed that the purpose was to augment a deficient item in another department of the government or agency of the government. The cross-border transfers, if Your Honors please, were in the nature of [aid] rather than augmentations. Here is a government entity separate and independent from the Executive Department solely in need of public funds. The President is there 24 hours a day, 7 days a week. He’s in charge of the whole operation although six or seven heads of government offices are given the power to augment. Only the President stationed

there and in effect in-charge and has the responsibility for the failure of any part of the government. You have election, for one reason or another, the money is not enough to hold election. There would be chaos if no money is given as an aid, not to augment, but as an aid to a department like COA. The President is responsible in a way that the other heads, given the power to augment, are not. So, he cannot very well allow this, if Your Honor please.189 JUSTICE LEONEN: May I move to another point, maybe just briefly. I am curious that the position now, I think, of government is that some transfers of savings is now considered to be, if I’m not mistaken, aid not augmentation. Am I correct in my hearing of your argument? HONORABLE MENDOZA: That’s our submission, if Your Honor, please. JUSTICE LEONEN: May I know, Justice, where can we situate this in the text of the Constitution? Where do we actually derive the concepts that transfers of appropriation from one branch to the other or what happened in DAP can be considered a said? What particular text in the Constitution can we situate this? HONORABLE MENDOZA: There is no particular provision or statutory provision for that matter, if Your Honor please. It is drawn from the fact that the Executive is the executive in-charge of the success of the government. JUSTICE LEONEN: So, the residual powers labelled in Marcos v. Manglapus would be the basis for this theory of the government? HONORABLE MENDOZA: Yes, if Your Honor, please. JUSTICE LEONEN: A while ago, Justice Carpio mentioned that the remedy is might be to go to Congress. That there are opportunities and there have been opportunities of the President to actually go to Congress and ask for supplemental budgets? HONORABLE MENDOZA: If there is time to do that, I would say yes. JUSTICE LEONEN: So, the theory of aid rather than augmentation applies in extra-ordinary situation? HONORABLE MENDOZA: Very extra-ordinary situations. JUSTICE LEONEN:

But Counsel, this would be new doctrine, in case? HONORABLE MENDOZA: Yes, if Your Honor please.190 Regardless of the variant characterizations of the cross-border transfers of funds, the plain text of Section 25(5), supra, disallowing cross border transfers was disobeyed. Cross-border transfers, whether as augmentation, or as aid, were prohibited under Section 25(5), supra. 4. Sourcing the DAP from unprogrammed funds despite the original revenue targets not having been exceeded was invalid Funding under the DAP were also sourced from unprogrammed funds provided in the GAAs for 2011, 2012,and 2013. The respondents stress, however, that the unprogrammed funds were not brought under the DAP as savings, but as separate sources of funds; and that, consequently, the release and use of unprogrammed funds were not subject to the restrictions under Section 25(5), supra. The documents contained in the Evidence Packets by the OSG have confirmed that the unprogrammed funds were treated as separate sources of funds. Even so, the release and use of the unprogrammed funds were still subject to restrictions, for, to start with, the GAAs precisely specified the instances when the unprogrammed funds could be released and the purposes for which they could be used. The petitioners point out that a condition for the release of the unprogrammed funds was that the revenue collections must exceed revenue targets; and that the release of the unprogrammed funds was illegal because such condition was not met.191 The respondents disagree, holding that the release and use of the unprogrammed funds under the DAP were in accordance with the pertinent provisions of the GAAs. In particular, the DBM avers that the unprogrammed funds could be availed of when any of the following three instances occur, to wit: (1) the revenue collections exceeded the original revenue targets proposed in the BESFs submitted by the President to Congress; (2) new revenues were collected or realized from sources not originally considered in the BESFs; or(3) newly-approved loans for foreign assisted projects were secured, or when conditions were triggered for other sources of funds, such as perfected loan agreements for foreign-assisted projects.192 This view of the DBM was adopted by all the respondents in their Consolidated Comment.193 The BESFs for 2011, 2012 and 2013 uniformly defined "unprogrammed appropriations" as appropriations that provided standby authority to incur additional agency obligations for priority PAPs when revenue collections exceeded targets, and when additional foreign funds are generated. 194 Contrary to the DBM’s averment that there were three instances when unprogrammed funds could be released, the BESFs envisioned only two instances. The third mentioned by the DBM – the collection of new revenues from sources not originally considered in the BESFs – was not included. This meant that the collection of additional revenues from new sources did not warrant the release of the unprogrammed funds. Hence, even if the revenues not considered in the BESFs were collected or generated, the basic condition that the revenue collections should exceed the revenue targets must still be complied with in order to justify the release of the unprogrammed funds. The view that there were only two instances when the unprogrammed funds could be released was bolstered by the following texts of the Special Provisions of the 2011 and 2012 GAAs, to wit: 2011 GAA 1. Release of Fund. The amounts authorized herein shall be released only when the revenue collections exceed the original revenue targets submitted by the President of the Philippines to Congress pursuant to Section 22, Article VII of the Constitution, including savings generated from programmed appropriations for the year:

PROVIDED, That collections arising from sources not considered in the aforesaid original revenue targets may be used to cover releases from appropriations in this Fund: PROVIDED, FURTHER, That in case of newly approved loans for foreign-assisted projects, the existence of a perfected loan agreement for the purpose shall be sufficient basis for the issuance of a SARO covering the loan proceeds: PROVIDED, FURTHERMORE, That if there are savings generated from the programmed appropriations for the first two quarters of the year, the DBM may, subject to the approval of the President, release the pertinent appropriations under the Unprogrammed Fund corresponding to only fifty percent (50%) of the said savings net of revenue shortfall: PROVIDED, FINALLY, That the release of the balance of the total savings from programmed appropriations for the year shall be subject to fiscal programming and approval of the President. 2012 GAA 1. Release of the Fund. The amounts authorized herein shall be released only when the revenue collections exceed the original revenue targets submitted by the President of the Philippines to Congress pursuant to Section 22, Article VII of the Constitution: PROVIDED, That collections arising from sources not considered in the aforesaid original revenue targets may be used to cover releases from appropriations in this Fund: PROVIDED, FURTHER, That in case of newly approved loans for foreign-assisted projects, the existence of a perfected loan agreement for the purpose shall be sufficient basis for the issuance of a SARO covering the loan proceeds. As can be noted, the provisos in both provisions to the effect that "collections arising from sources not considered in the aforesaid original revenue targets may be used to cover releases from appropriations in this Fund" gave the authority to use such additional revenues for appropriations funded from the unprogrammed funds. They did not at all waive compliance with the basic requirement that revenue collections must still exceed the original revenue targets. In contrast, the texts of the provisos with regard to additional revenues generated from newly-approved foreign loans were clear to the effect that the perfected loan agreement would be in itself "sufficient basis" for the issuance of a SARO to release the funds but only to the extent of the amount of the loan. In such instance, the revenue collections need not exceed the revenue targets to warrant the release of the loan proceeds, and the mere perfection of the loan agreement would suffice. It can be inferred from the foregoing that under these provisions of the GAAs the additional revenues from sources not considered in the BESFs must be taken into account in determining if the revenue collections exceeded the revenue targets. The text of the relevant provision of the 2013 GAA, which was substantially similar to those of the GAAs for 2011 and 2012, already made this explicit, thus: 1. Release of the Fund. The amounts authorized herein shall be released only when the revenue collections exceed the original revenue targets submitted by the President of the Philippines to Congress pursuant to Section 22, Article VII of the Constitution, including collections arising from sources not considered in the aforesaid original revenue target, as certified by the BTr: PROVIDED, That in case of newly approved loans for foreignassisted projects, the existence of a perfected loan agreement for the purpose shall be sufficient basis for the issuance of a SARO covering the loan proceeds. Consequently, that there were additional revenues from sources not considered in the revenue target would not be enough. The total revenue collections must still exceed the original revenue targets to justify the release of the unprogrammed funds (other than those from newly-approved foreign loans). The present controversy on the unprogrammed funds was rooted in the correct interpretation of the phrase "revenue collections should exceed the original revenue targets." The petitioners take the phrase to mean that the total revenue collections must exceed the total revenue target stated in the BESF, but the respondents understand the phrase to refer only to the collections for each source of revenue as enumerated in the BESF, with the condition being deemed complied with once the revenue collections from a particular source already exceeded the stated target. The BESF provided for the following sources of revenue, with the corresponding revenue target stated for each source of revenue, to wit:

TAX REVENUES Taxes on Net Income and Profits Taxes on Property Taxes on Domestic Goods and Services General Sales, Turnover or VAT Selected Excises on Goods Selected Taxes on Services Taxes on the Use of Goods or Property or Permission to Perform Activities Other Taxes Taxes on International Trade and Transactions NON-TAX REVENUES Fees and Charges BTR Income Government Services Interest on NG Deposits Interest on Advances to Government Corporations Income from Investments Interest on Bond Holdings Guarantee Fee Gain on Foreign Exchange NG Income Collected by BTr Dividends on Stocks NG Share from Airport Terminal Fee NG Share from PAGCOR Income NG Share from MIAA Profit Privatization Foreign Grants Thus, when the Court required the respondents to submit a certification from the Bureau of Treasury (BTr) to the effect that the revenue collections had exceeded the original revenue targets,195 they complied by submitting certifications from the BTr and Department of Finance (DOF) pertaining to only one identified source of revenue – the dividends from the shares of stock held by the Government in government-owned and controlled corporations. To justify the release of the unprogrammed funds for 2011, the OSG presented the certification dated March 4, 2011 issued by DOF Undersecretary Gil S. Beltran, as follows: This is to certify that under the Budget for Expenditures and Sources of Financing for 2011, the programmed income from dividends from shares of stock in government-owned and controlled corporations is 5.5 billion. This is to certify further that based on the records of the Bureau of Treasury, the National Government has recorded dividend income amounting to ₱23.8 billion as of 31 January 2011. 196 For 2012, the OSG submitted the certification dated April 26, 2012 issued by National Treasurer Roberto B. Tan, viz:

This is to certify that the actual dividend collections remitted to the National Government for the period January to March 2012 amounted to ₱19.419 billion compared to the full year program of ₱5.5 billion for 2012. 197 And, finally, for 2013, the OSG presented the certification dated July 3, 2013 issued by National Treasurer Rosalia V. De Leon, to wit: This is to certify that the actual dividend collections remitted to the National Government for the period January to May 2013 amounted to ₱12.438 billion compared to the full year program of ₱10.0198 billion for 2013. Moreover, the National Government accounted for the sale of the right to build and operate the NAIA expressway amounting to ₱11.0 billion in June 2013.199 The certifications reflected that by collecting dividends amounting to ₱23.8 billion in 2011, ₱19.419 billion in 2012, and ₱12.438 billion in 2013 the BTr had exceeded only the ₱5.5 billion in target revenues in the form of dividends from stocks in each of 2011 and 2012, and only the ₱10 billion in target revenues in the form of dividends from stocks in 2013. However, the requirement that revenue collections exceed the original revenue targets was to be construed in light of the purpose for which the unprogrammed funds were incorporated in the GAAs as standby appropriations to support additional expenditures for certain priority PAPs should the revenue collections exceed the resource targets assumed in the budget or when additional foreign project loan proceeds were realized. The unprogrammed funds were included in the GAAs to provide ready cover so as not to delay the implementation of the PAPs should new or additional revenue sources be realized during the year. 200 Given the tenor of the certifications, the unprogrammed funds were thus not yet supported by the corresponding resources. 201 The revenue targets stated in the BESF were intended to address the funding requirements of the proposed programmed appropriations. In contrast, the unprogrammed funds, as standby appropriations, were to be released only when there were revenues in excess of what the programmed appropriations required. As such, the revenue targets should be considered as a whole, not individually; otherwise, we would be dealing with artificial revenue surpluses. The requirement that revenue collections must exceed revenue target should be understood to mean that the revenue collections must exceed the total of the revenue targets stated in the BESF. Moreover, to release the unprogrammed funds simply because there was an excess revenue as to one source of revenue would be an unsound fiscal management measure because it would disregard the budget plan and foster budget deficits, in contravention of the Government’s surplus budget policy. 202 We cannot, therefore, subscribe to the respondents’ view. 5. Equal protection, checks and balances, and public accountability challenges The DAP is further challenged as violative of the Equal Protection Clause, the system of checks and balances, and the principle of public accountability. With respect to the challenge against the DAP under the Equal Protection Clause,203 Luna argues that the implementation of the DAP was "unfair as it [was] selective" because the funds released under the DAP was not made available to all the legislators, with some of them refusing to avail themselves of the DAP funds, and others being unaware of the availability of such funds. Thus, the DAP practised "undue favoritism" in favor of select legislators in contravention of the Equal Protection Clause. Similarly, COURAGE contends that the DAP violated the Equal Protection Clause because no reasonable classification was used in distributing the funds under the DAP; and that the Senators who supposedly availed themselves of said funds were differently treated as to the amounts they respectively received. Anent the petitioners’ theory that the DAP violated the system of checks and balances, Luna submits that the grant of the funds under the DAP to some legislators forced their silence about the issues and anomalies

surrounding the DAP. Meanwhile, Belgica stresses that the DAP, by allowing the legislators to identify PAPs, authorized them to take part in the implementation and execution of the GAAs, a function that exclusively belonged to the Executive; that such situation constituted undue and unjustified legislative encroachment in the functions of the Executive; and that the President arrogated unto himself the power of appropriation vested in Congress because NBC No. 541 authorized the use of the funds under the DAP for PAPs not considered in the 2012 budget. Finally, the petitioners insist that the DAP was repugnant to the principle of public accountability enshrined in the Constitution,204 because the legislators relinquished the power of appropriation to the Executive, and exhibited a reluctance to inquire into the legality of the DAP. The OSG counters the challenges, stating that the supposed discrimination in the release of funds under the DAP could be raised only by the affected Members of Congress themselves, and if the challenge based on the violation of the Equal Protection Clause was really against the constitutionality of the DAP, the arguments of the petitioners should be directed to the entitlement of the legislators to the funds, not to the proposition that all of the legislators should have been given such entitlement. The challenge based on the contravention of the Equal Protection Clause, which focuses on the release of funds under the DAP to legislators, lacks factual and legal basis. The allegations about Senators and Congressmen being unaware of the existence and implementation of the DAP, and about some of them having refused to accept such funds were unsupported with relevant data. Also, the claim that the Executive discriminated against some legislators on the ground alone of their receiving less than the others could not of itself warrant a finding of contravention of the Equal Protection Clause. The denial of equal protection of any law should be an issue to be raised only by parties who supposedly suffer it, and, in these cases, such parties would be the few legislators claimed to have been discriminated against in the releases of funds under the DAP. The reason for the requirement is that only such affected legislators could properly and fully bring to the fore when and how the denial of equal protection occurred, and explain why there was a denial in their situation. The requirement was not met here. Consequently, the Court was not put in the position to determine if there was a denial of equal protection. To have the Court do so despite the inadequacy of the showing of factual and legal support would be to compel it to speculate, and the outcome would not do justice to those for whose supposed benefit the claim of denial of equal protection has been made. The argument that the release of funds under the DAP effectively stayed the hands of the legislators from conducting congressional inquiries into the legality and propriety of the DAP is speculative. That deficiency eliminated any need to consider and resolve the argument, for it is fundamental that speculation would not support any proper judicial determination of an issue simply because nothing concrete can thereby be gained. In order to sustain their constitutional challenges against official acts of the Government, the petitioners must discharge the basic burden of proving that the constitutional infirmities actually existed.205 Simply put, guesswork and speculation cannot overcome the presumption of the constitutionality of the assailed executive act. We do not need to discuss whether or not the DAP and its implementation through the various circulars and memoranda of the DBM transgressed the system of checks and balances in place in our constitutional system. Our earlier expositions on the DAP and its implementing issuances infringing the doctrine of separation of powers effectively addressed this particular concern. Anent the principle of public accountability being transgressed because the adoption and implementation of the DAP constituted an assumption by the Executive of Congress’ power of appropriation, we have already held that the DAP and its implementing issuances were policies and acts that the Executive could properly adopt and do in the execution of the GAAs to the extent that they sought to implement strategies to ramp up or accelerate the economy of the country. 6. Doctrine of operative fact was applicable After declaring the DAP and its implementing issuances constitutionally infirm, we must now deal with the consequences of the declaration.

Article 7 of the Civil Code provides: Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary. When the courts declared a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution. A legislative or executive act that is declared void for being unconstitutional cannot give rise to any right or obligation.206 However, the generality of the rule makes us ponder whether rigidly applying the rule may at times be impracticable or wasteful. Should we not recognize the need to except from the rigid application of the rule the instances in which the void law or executive act produced an almost irreversible result? The need is answered by the doctrine of operative fact. The doctrine, definitely not a novel one, has been exhaustively explained in De Agbayani v. Philippine National Bank: 207 The decision now on appeal reflects the orthodox view that an unconstitutional act, for that matter an executive order or a municipal ordinance likewise suffering from that infirmity, cannot be the source of any legal rights or duties. Nor can it justify any official act taken under it. Its repugnancy to the fundamental law once judicially declared results in its being to all intents and purposes a mere scrap of paper. As the new Civil Code puts it: ‘When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern.’ Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws of the Constitution. It is understandable why it should be so, the Constitution being supreme and paramount. Any legislative or executive act contrary to its terms cannot survive. Such a view has support in logic and possesses the merit of simplicity. It may not however be sufficiently realistic. It does not admit of doubt that prior to the declaration of nullity such challenged legislative or executive act must have been in force and had to be complied with. This is so as until after the judiciary, in an appropriate case, declares its invalidity, it is entitled to obedience and respect. Parties may have acted under it and may have changed their positions. What could be more fitting than that in a subsequent litigation regard be had to what has been done while such legislative or executive act was in operation and presumed to be valid in all respects. It is now accepted as a doctrine that prior to its being nullified, its existence as a fact must be reckoned with. This is merely to reflect 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. 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. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, with respect to particular relations, individual and corporate, and particular conduct, private and official.’" The doctrine of operative fact recognizes the existence of the law or executive act prior to the determination of its unconstitutionality as an operative fact that produced consequences that cannot always be erased, ignored or disregarded. In short, it nullifies the void law or executive act but sustains its effects. It provides an exception to the general rule that a void or unconstitutional law produces no effect. 208 But its use must be subjected to great scrutiny and circumspection, and it cannot be invoked to validate an unconstitutional law or executive act, but is resorted to only as a matter of equity and fair play. 209 It applies only to cases where extraordinary circumstances exist, and only when the extraordinary circumstances have met the stringent conditions that will permit its application.

We find the doctrine of operative fact applicable to the adoption and implementation of the DAP. Its application to the DAP proceeds from equity and fair play. The consequences resulting from the DAP and its related issuances could not be ignored or could no longer be undone. To be clear, the doctrine of operative fact extends to a void or unconstitutional executive act. The term executive act is broad enough to include any and all acts of the Executive, including those that are quasi legislative and quasi-judicial in nature. The Court held so in Hacienda Luisita, Inc. v. Presidential Agrarian Reform Council: 210 Nonetheless, the minority is of the persistent view that the applicability of the operative fact doctrine should be limited to statutes and rules and regulations issued by the executive department that are accorded the same status as that of a statute or those which are quasi-legislative in nature. Thus, the minority concludes that the phrase ‘executive act’ used in the case of De Agbayani v. Philippine National Bank refers only to acts, orders, and rules and regulations that have the force and effect of law. The minority also made mention of the Concurring Opinion of Justice Enrique Fernando in Municipality of Malabang v. Benito, where it was supposedly made explicit that the operative fact doctrine applies to executive acts, which are ultimately quasi-legislative in nature. We disagree. For one, neither the De Agbayani case nor the Municipality of Malabang case elaborates what ‘executive act’ mean. Moreover, while orders, rules and regulations issued by the President or the executive branch have fixed definitions and meaning in the Administrative Code and jurisprudence, the phrase ‘executive act’ does not have such specific definition under existing laws. It should be noted that in the cases cited by the minority, nowhere can it be found that the term ‘executive act’ is confined to the foregoing. Contrarily, the term ‘executive act’ is broad enough to encompass decisions of administrative bodies and agencies under the executive department which are subsequently revoked by the agency in question or nullified by the Court. A case in point is the concurrent appointment of Magdangal B. Elma (Elma) as Chairman of the Presidential Commission on Good Government (PCGG) and as Chief Presidential Legal Counsel (CPLC) which was declared unconstitutional by this Court in Public Interest Center, Inc. v. Elma. In said case, this Court ruled that the concurrent appointment of Elma to these offices is in violation of Section 7, par. 2, Article IX-B of the 1987 Constitution, since these are incompatible offices. Notably, the appointment of Elma as Chairman of the PCGG and as CPLC is, without a question, an executive act. Prior to the declaration of unconstitutionality of the said executive act, certain acts or transactions were made in good faith and in reliance of the appointment of Elma which cannot just be set aside or invalidated by its subsequent invalidation. In Tan v. Barrios, this Court, in applying the operative fact doctrine, held that despite the invalidity of the jurisdiction of the military courts over civilians, certain operative facts must be acknowledged to have existed so as not to trample upon the rights of the accused therein. Relevant thereto, in Olaguer v. Military Commission No. 34, it was ruled that ‘military tribunals pertain to the Executive Department of the Government and are simply instrumentalities of the executive power, provided by the legislature for the President as Commander-in-Chief to aid him in properly commanding the army and navy and enforcing discipline therein, and utilized under his orders or those of his authorized military representatives.’ Evidently, the operative fact doctrine is not confined to statutes and rules and regulations issued by the executive department that are accorded the same status as that of a statute or those which are quasi-legislative in nature. Even assuming that De Agbayani initially applied the operative fact doctrine only to executive issuances like orders and rules and regulations, said principle can nonetheless be applied, by analogy, to decisions made by the President or the agencies under the executive department. This doctrine, in the interest of justice and equity, can be applied liberally and in a broad sense to encompass said decisions of the executive branch. In keeping with the demands of equity, the Court can apply the operative fact doctrine to acts and consequences that resulted from the reliance not only on a law or executive act which is quasi-legislative in nature but also on decisions or orders of the executive branch which were later nullified. This Court is not unmindful that such acts and consequences must be recognized in the higher interest of justice, equity and fairness. Significantly, a decision made by the President or the administrative agencies has to be complied with because it has the force and effect of law, springing from the powers of the President under the Constitution and existing laws. Prior to the nullification or recall of said decision, it may have produced acts and consequences in conformity to and in reliance of said decision, which must be respected. It is on this score that the operative fact

doctrine should be applied to acts and consequences that resulted from the implementation of the PARC Resolution approving the SDP of HLI. (Bold underscoring supplied for emphasis) In Commissioner of Internal Revenue v. San Roque Power Corporation,211 the Court likewise declared that "for the operative fact doctrine to apply, there must be a ‘legislative or executive measure,’ meaning a law or executive issuance." Thus, the Court opined there that the operative fact doctrine did not apply to a mere administrative practice of the Bureau of Internal Revenue, viz: Under Section 246, taxpayers may rely upon a rule or ruling issued by the Commissioner from the time the rule or ruling is issued up to its reversal by the Commissioner or this Court. The reversal is not given retroactive effect. This, in essence, is the doctrine of operative fact. There must, however, be a rule or ruling issued by the Commissioner that is relied upon by the taxpayer in good faith. A mere administrative practice, not formalized into a rule or ruling, will not suffice because such a mere administrative practice may not be uniformly and consistently applied. An administrative practice, if not formalized as a rule or ruling, will not be known to the general public and can be availed of only by those with informal contacts with the government agency. It is clear from the foregoing that the adoption and the implementation of the DAP and its related issuances were executive acts.1avvphi1 The DAP itself, as a policy, transcended a merely administrative practice especially after the Executive, through the DBM, implemented it by issuing various memoranda and circulars. The pooling of savings pursuant to the DAP from the allotments made available to the different agencies and departments was consistently applied throughout the entire Executive. With the Executive, through the DBM, being in charge of the third phase of the budget cycle – the budget execution phase, the President could legitimately adopt a policy like the DAP by virtue of his primary responsibility as the Chief Executive of directing the national economy towards growth and development. This is simply because savings could and should be determined only during the budget execution phase. As already mentioned, the implementation of the DAP resulted into the use of savings pooled by the Executive to finance the PAPs that were not covered in the GAA, or that did not have proper appropriation covers, as well as to augment items pertaining to other departments of the Government in clear violation of the Constitution. To declare the implementation of the DAP unconstitutional without recognizing that its prior implementation constituted an operative fact that produced consequences in the real as well as juristic worlds of the Government and the Nation is to be impractical and unfair. Unless the doctrine is held to apply, the Executive as the disburser and the offices under it and elsewhere as the recipients could be required to undo everything that they had implemented in good faith under the DAP. That scenario would be enormously burdensome for the Government. Equity alleviates such burden. The other side of the coin is that it has been adequately shown as to be beyond debate that the implementation of the DAP yielded undeniably positive results that enhanced the economic welfare of the country. To count the positive results may be impossible, but the visible ones, like public infrastructure, could easily include roads, bridges, homes for the homeless, hospitals, classrooms and the like. Not to apply the doctrine of operative fact to the DAP could literally cause the physical undoing of such worthy results by destruction, and would result in most undesirable wastefulness. Nonetheless, as Justice Brion has pointed out during the deliberations, the doctrine of operative fact does not always apply, and is not always the consequence of every declaration of constitutional invalidity. It can be invoked only in situations where the nullification of the effects of what used to be a valid law would result in inequity and injustice;212but where no such result would ensue, the general rule that an unconstitutional law is totally ineffective should apply. In that context, as Justice Brion has clarified, the doctrine of operative fact can apply only to the PAPs that can no longer be undone, and whose beneficiaries relied in good faith on the validity of the DAP, but cannot apply to the authors, proponents and implementors of the DAP, unless there are concrete findings of good faith in their favor by the proper tribunals determining their criminal, civil, administrative and other liabilities. WHEREFORE, the Court PARTIALLY GRANTS the petitions for certiorari and prohibition; and DECLARES the following acts and practices under the Disbursement Acceleration Program, National Budget Circular No. 541 and

related executive issuances UNCONSTITUTIONAL for being in violation of Section 25(5), Article VI of the 1987 Constitution and the doctrine of separation of powers, namely: (a) The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year and without complying with the statutory definition of savings contained in the General Appropriations Acts; (b) The cross-border transfers of the savings of the Executive to augment the appropriations of other offices outside the Executive; and (c) The funding of projects, activities and programs that were not covered by any appropriation in the General Appropriations Act. The Court further DECLARES VOID the use of unprogrammed funds despite the absence of a certification by the National Treasurer that the revenue collections exceeded the revenue targets for non-compliance with the conditions provided in the relevant General Appropriations Acts. SO ORDERED. A.M. No. 11-7-10-SC

July 31, 2012

Re: COA Opinion on the Computation of the Appraised Value of the Properties Purchased by the Retired Chief/Associate Justices of the Supreme Court. RESOLUTION PER CURIAM: The present administrative matter stems from the two Memoranda, dated July 14, 2011 and August 10, 2010, submitted by Atty. Eden T. Candelaria, Deputy Clerk of Court and Chief Administrative Officer, Office of Administrative Services, to the Office of the Chief Justice. These Memoranda essentially ask the Court to determine the proper formula to be used in computing the appraisal value that a retired Chief Justice and several Associate Justices of the Supreme Court have to pay to acquire the government properties they used during their tenure. THE FACTUAL ANTECEDENTS This issue has its roots in the June 8, 2010 Opinion1 issued by the Legal Services Sector, Office of the General Counsel of the Commission on Audit (COA), which found that an underpayment amounting to P221,021.50 resulted when five (5) retired Supreme Court justices purchased from the Supreme Court the personal properties assigned to them during their incumbency in the Court, to wit: 1âwphi1

Name of Justice

Artemio Panganiban (Chief Justice)

Valuation under Items Purchased CFAG (in pesos)

Valuation under COA Difference Memorandum (in pesos) No. 98-569A (in pesos)

Toyota Camry, 2003 model

341,241.10

365,000.00

23,758.90

Toyota Grandia,

136,500.00

151,000.00

14,500.00

2002 model Toyota Camry, 2001 model

115,800.00

156,000.00

40,200.00

Toyota Camry, 2005 model

579,532.50

580,600.00

1,067.50

Toyota Grandia, 2003 model

117,300.00

181,200.00

63,900.00

Angelina S. Gutierrez Toyota Grandia, (Associate Justice) 2002 model

115,800.00

150,600.00

34,800.00

Adolfo S. Azcuna (Associate Justice)

Toyota Camry, 2005 model

536,105.00

543,300.00

9,195.00

Toyota Grandia, 2002 model

117,300.00

145,000.00

27,700.00

2,399.90

2,500.00

100.10

Ruben T. Reyes (Associate Justice)

Sony TV Set Ma. Alicia

5,800.002

The COA attributed this underpayment to the use by the Property Division of the Supreme Court of the wrong formula in computing the appraisal value of the purchased vehicles. According to the COA, the Property Division erroneously appraised the subject motor vehicles by applying Constitutional Fiscal Autonomy Group (CFAG) Joint Resolution No. 35 dated April 23, 1997 and its guidelines, in compliance with the Resolution of the Court En Banc dated March 23, 2004 in A.M. No. 03-12-01,3 when it should have applied the formula found in COA Memorandum No. 98-569-A4 dated August 5, 1998. Recommendations of the Office of Administrative Services In her Memorandum dated August 10, 2010, Atty. Candelaria recommended that the Court advise the COA to respect the in-house computation based on the CFAG formula, noting that this was the first time that the COA questioned the authority of the Court in using CFAG Joint Resolution No. 35 and its guidelines in the appraisal and disposal of government property since these were issued in 1997. As a matter of fact, in two previous instances involving two (2) retired Court of Appeals Associate Justices,5the COA upheld the in-house appraisal of government property using the formula found in the CFAG guidelines. More importantly, the Constitution itself grants the Judiciary fiscal autonomy in the handling of its budget and resources. Full autonomy, among others,6 contemplates the guarantee of full flexibility in the allocation and utilization of the Judiciary’s resources, based on its own determination of what it needs. The Court thus has the recognized authority to allocate and disburse such sums as may be provided or required by law in the course of the discharge of its functions.7 To allow the COA to substitute the Court’s policy in the disposal of its property would be tantamount to an encroachment into this judicial prerogative. OUR RULING We find Atty. Candelaria’s recommendation to be well-taken. The COA’s authority to conduct post-audit examinations on constitutional bodies granted fiscal autonomy is provided under Section 2(1), Article IX-D of the 1987 Constitution, which states: Section 2. (1) The Commission on Audit shall have the power, authority, and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations with original charters, and on a post-audit basis: (a) constitutional bodies, commissions and offices that have been granted fiscal autonomy under this Constitution. emphasis ours

This authority, however, must be read not only in light of the Court’s fiscal autonomy, but also in relation with the constitutional provisions on judicial independence and the existing jurisprudence and Court rulings on these matters. Separation of Powers and Judicial Independence In Angara v. Electoral Commission,8 we explained the principle of separation of powers, as follows: The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. x x x And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution.9 The concept of the independence of the three branches of government, on the other hand, extends 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.10To 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.11 Under the Judiciary’s unique circumstances, independence encompasses the idea that individual judges can freely exercise their mandate to resolve justiciable disputes, while the judicial branch, as a whole, should work in the discharge of its constitutional functions free of restraints and influence from the other branches, save only for those imposed by the Constitution itself.12 Thus, judicial independence can be "broken down into two distinct concepts: decisional independence and institutional independence." 13 Decisional independence "refers to a judge’s ability to render decisions free from political or popular influence based solely on the individual facts and applicable law."14 On the other hand, institutional independence "describes the separation of the judicial branch from the executive and legislative branches of government."15 Simply put, institutional independence refers to the "collective independence of the judiciary as a body."16 In the case In the Matter of the Allegations Contained in the Columns of Mr. Amado P. Macasaet Published in Malaya Dated September 18, 19, 20 and 21, 2007,17 the Court delineated the distinctions between the two concepts of judicial independence in the following manner: One concept is individual judicial independence, which focuses on each particular judge and seeks to insure his or her ability to decide cases with autonomy within the constraints of the law. A judge has this kind of independence when he can do his job without having to hear – or at least without having to take it seriously if he does hear – criticisms of his personal morality and fitness for judicial office. The second concept is institutional judicial independence. It focuses on the independence of the judiciary as a branch of government and protects judges as a class. A truly independent judiciary is possible only when both concepts of independence are preserved - wherein public confidence in the competence and integrity of the judiciary is maintained, and the public accepts the legitimacy of judicial authority. An erosion of this confidence threatens the maintenance of an independent Third Estate. italics and emphases ours Recognizing the vital role that the Judiciary plays in our system of government as the sole repository of judicial power, with the power to determine whether any act of any branch or instrumentality of the government is attended with grave abuse of discretion,18 no less than the Constitution provides a number of safeguards to ensure that judicial independence is protected and maintained. The Constitution expressly prohibits Congress from depriving the Supreme Court of its jurisdiction, as enumerated in Section 5, Article VII of the Constitution, or from passing a law that undermines the security of tenure of the

members of the judiciary.19 The Constitution also mandates that the judiciary shall enjoy fiscal autonomy,20 and grants the Supreme Court administrative supervision over all courts and judicial personnel. Jurisprudence 21 has characterized administrative supervision as exclusive, noting that only the Supreme Court can oversee the judges and court personnel's compliance with all laws, rules and regulations. No other branch of government may intrude into this power, without running afoul of the doctrine of separation of powers.22 The Constitution protects as well the salaries of the Justices and judges by prohibiting any decrease in their salary during their continuance in office,23 and ensures their security of tenure by providing that "Members of the Supreme Court and judges of lower courts shall hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office."24 With these guarantees, justices and judges can administer justice undeterred by any fear of reprisals brought on by their judicial action. They can act inspired solely by their knowledge of the law and by the dictates of their conscience, free from the corrupting influence of base or unworthy motives.25 All of these constitutional provisions were put in place to strengthen judicial independence, not only by clearly stating the Court’s powers, but also by providing express limits on the power of the two other branches of government to interfere with the Court’s affairs. Fiscal Autonomy One of the most important aspects of judicial independence is the constitutional grant of fiscal autonomy. Just as the Executive may not prevent a judge from discharging his or her judicial duty (for example, by physically preventing a court from holding its hearings) and just as the Legislature may not enact laws removing all jurisdiction from courts,26 the courts may not be obstructed from their freedom to use or dispose of their funds for purposes germane to judicial functions. While, as a general proposition, the authority of legislatures to control the purse in the first instance is unquestioned, any form of interference by the Legislative or the Executive on the Judiciary’s fiscal autonomy amounts to an improper check on a co-equal branch of government. If the judicial branch is to perform its primary function of adjudication, it must be able to command adequate resources for that purpose. This authority to exercise (or to compel the exercise of) legislative power over the national purse (which at first blush appears to be a violation of concepts of separateness and an invasion of legislative autonomy) is necessary to maintain judicial independence27 and is expressly provided for by the Constitution through the grant of fiscal autonomy under Section 3, Article VIII. This provision states: Section 3. The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year and, after approval, shall be automatically and regularly released. In Bengzon v. Drilon,28 we had the opportunity to define the scope and extent of fiscal autonomy in the following manner: As envisioned in the Constitution, the fiscal autonomy enjoyed by the Judiciary, the Civil Service Commission, the Commission on Audit, the Commission on Elections, and the Office of the Ombudsman contemplates a guarantee of full flexibility to allocate and utilize their resources with the wisdom and dispatch that their needs require. It recognizes the power and authority to levy, assess and collect fees, fix rates of compensation not exceeding the highest rates authorized by law for compensation and pay plans of the government and allocate and disburse such sums as may be provided by law or prescribed by them in the course of the discharge of their functions. Fiscal autonomy means freedom from outside control. If the Supreme Court says it needs 100 typewriters but DBM rules we need only 10 typewriters and sends its recommendations to Congress without even informing us, the autonomy given by the Constitution becomes an empty and illusory platitude. The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and constraints on the manner the independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy and violative not only of the express mandate of the Constitution but especially as regards the Supreme Court, of the independence and separation of powers upon which the entire fabric of our constitutional system is based. In the interest of comity and cooperation, the Supreme Court, Constitutional Commissions, and

the Ombudsman have so far limited their objections to constant reminders. We now agree with the petitioners that this grant of autonomy should cease to be a meaningless provision.29 (emphases ours) In this cited case, the Court set aside President Corazon Aquino’s veto of particular provisions of the General Appropriations Act for the Fiscal Year 1992 relating to the payment of the adjusted pensions of retired justices of the Supreme Court and the Court of Appeals, on the basis of the Judiciary’s constitutionally guaranteed independence and fiscal autonomy. The Court ruled: In the case at bar, the veto of these specific provisions in the General Appropriations Act is tantamount to dictating to the Judiciary how its funds should be utilized, which is clearly repugnant to fiscal autonomy. The freedom of the Chief Justice to make adjustments in the utilization of the funds appropriated from the expenditures of the judiciary, including the use of any savings from any particular item to cover deficits or shortages in other items of the Judiciary is withheld. Pursuant to the Constitutional mandate, the Judiciary must enjoy freedom in the disposition of the funds allocated to it in the appropriations law. It knows its priorities just as it is aware of the fiscal restraints. The Chief Justice must be given a free hand on how to augment appropriations where augmentation is needed.30 The Court’s declarations in Bengzon make it clear that the grant of fiscal autonomy to the Judiciary is more extensive than the mere automatic and regular release of its approved annual appropriations;31 real fiscal autonomy covers the grant to the Judiciary of the authority to use and dispose of its funds and properties at will, free from any outside control or interference. Application to the Present Case The Judiciary’s fiscal autonomy is realized through the actions of the Chief Justice, as its head, and of the Supreme Court En Banc, in the exercise of administrative control and supervision of the courts and its personnel. As the Court En Banc’s Resolution (dated March 23, 2004) in A.M. No. 03-12-01 reflects, the fiscal autonomy of the Judiciary serves as the basis in allowing the sale of the Judiciary’s properties to retiring Justices of the Supreme Court and the appellate courts: WHEREAS, by the constitutional mandate of fiscal autonomy as defined in Bengzon v. Drilon (G.R. No. 103524, 15 April 1992, 208 SCRA 133, 150) the Judiciary has "full flexibility to allocate and utilize (its) resources with the wisdom and dispatch that (its) needs require"; WHEREAS, the long-established tradition and practice of Justices or Members of appellate courts of purchasing for sentimental reasons at retirement government properties they used during their tenure has been recognized as a privilege enjoyed only by such government officials; and WHEREAS, the exercise of such privilege needs regulation to the end that respect for sentiments that a retiring Justice attaches to properties he or she officially used during his or her tenure should be in consonance with the need for restraint in the utilization and disposition of government resources. By way of a long standing tradition, partly based on the intention to reward long and faithful service, the sale to the retired Justices of specifically designated properties that they used during their incumbency has been recognized both as a privilege and a benefit. This has become an established practice within the Judiciary that even the COA has previously recognized.32 The En Banc Resolution also deems the grant of the privilege as a form of additional retirement benefit that the Court can grant its officials and employees in the exercise of its power of administrative supervision. Under this administrative authority, the Court has the power to administer the Judiciary’s internal affairs, and this includes the authority to handle and manage the retirement applications and entitlements of its personnel as provided by law and by its own grants. 33 Thus, under the guarantees of the Judiciary’s fiscal autonomy and its independence, the Chief Justice and the Court En Banc determine and decide the who, what, where, when and how of the privileges and benefits they extend to justices, judges, court officials and court personnel within the parameters of the Court’s granted power; they determine the terms, conditions and restrictions of the grant as grantor.

In the context of the grant now in issue, the use of the formula provided in CFAG Joint Resolution No. 35 is a part of the Court’s exercise of its discretionary authority to determine the manner the granted retirement privileges and benefits can be availed of. Any kind of interference on how these retirement privileges and benefits are exercised and availed of, not only violates the fiscal autonomy and independence of the Judiciary, but also encroaches upon the constitutional duty and privilege of the Chief Justice and the Supreme Court En Banc to manage the Judiciary’s own affairs. As a final point, we add that this view finds full support in the Government Accounting and Auditing Manual (GAAM), Volume 1, particularly, Section 501 of Title 7, Chapter 3, which states: Section 501. Authority or responsibility for property disposal/divestment. – The full and sole authority and responsibility for the divestment and disposal of property and other assets owned by the national government agencies or instrumentalities, local government units and government-owned and/or controlled corporations and their subsidiaries shall be lodged in the heads of the departments, bureaus, and offices of the national government, the local government units and the governing bodies or managing heads of government-owned or controlled corporations and their subsidiaries conformably to their respective corporate charters or articles of incorporation, who shall constitute the appropriate committee or body to undertake the same. italics supplied; emphases ours This provision clearly recognizes that the Chief Justice, as the head of the Judiciary, possesses the full and sole authority and responsibility to divest and dispose of the properties and assets of the Judiciary; as Head of Office, he determines the manner and the conditions of disposition, which in this case relate to a benefit. As the usual practice of the Court, this authority is exercised by the Chief Justice in consultation with the Court En Banc. However, whether exercised by the Chief Justice or by the Supreme Court En Banc, the grant of such authority and discretion is unequivocal and leaves no room for interpretations and insertions. ACCORDINGLY, premises considered, the in-house computation of the appraisal value made by the Property Division, Office of `Administrative Services, of the properties purchased by the retired Chief Justice and Associate Justices of the Supreme Court, based on CFAG Joint Resolution No. 35 dated April 23, 1997, as directed under the Court Resolution dated March 23, 2004 in A.M. No. 03-12-01, is CONFIRMED to be legal and valid. Let the Commission on Audit be accordingly advised of this Resolution for its guidance. SO ORDERED. A.M. No. 13-09-08-SC

October 1, 2013

RE: REQUEST FOR GUIDANCE/CLARIFICATION ON SECTION 7, RULE III OF REPUBLIC ACT NO. 10154 REQUIRING RETIRING GOVERNMENT EMPLOYEES TO SECURE A CLEARANCE OF PENDENCY/NONPENDENCY OF CASE/S FROM THE CIVIL SERVICE COMMISSION. RESOLUTION PERLAS-BERNABE, J.: Before the Court is a Memorandum dated September 18, 2013 from Atty. Eden T. Candelaria, Deputy Clerk of Court and Chief Administrative Officer, Office of Administrative Services of the Supreme Court, requesting guidance/clarification on the applicability to the Judiciary of Section 7, Rule III of the Implementing Rules and Regulations of Republic Act No. (RA) 101541 which states: Section 7. Notice of Pendency of Case. The retiring employee shall seek Clearance of Pendency/Non-Pendency of Administrative Case from his/her employer agency, Civil Service Commission (CSC), Office of the Ombudsman, or in case of presidential appointees, from the Office of the President. Section 6,2 Article VIII of the 1987 Philippine Constitution (Constitution) exclusively vests in the Court administrative supervision over all courts and court personnel. 3 As such, it oversees the court personnel’s compliance with all laws and takes the proper administrative action against them for any violation thereof. 4 As an

adjunct thereto, it keeps in its custody records pertaining to the administrative cases of retiring court personnel.1âwphi1 In view of the foregoing, the Court rules that the subject provision – which requires retiring government employees to secure a prior clearance of pendency/non-pendency of administrative case/s from, among others, the CSC – should not be made to apply to employees of the Judiciary.1âwphi1 To deem it otherwise would disregard the Court’s constitutionally-enshrined power of administrative supervision over its personnel. Besides, retiring court personnel are already required to secure a prior clearance of the pendency/non-pendency of administrative case/s from the Court which makes the CSC clearance a superfluous and non-expeditious requirement contrary to the declared state policy of RA 10154.5 To further clarify the matter, the same principles dictate that a prior clearance of pendency/non-pendency of administrative case/s from the Office of the President (albeit some court personnel are presidential appointees, e.g., Supreme Court Justices) or the Office of the Ombudsman should not equally apply to retiring court personnel. Verily, the administrative supervision of court personnel and all affairs related thereto fall within the exclusive province of the Judiciary. It must, however, be noted that since the Constitution only accords the Judiciary administrative supervision over its personnel, a different treatment of the clearance requirement obtains with respect to criminal cases. As such, a clearance requirement which pertains to criminal cases may be imposed by the appropriate government agency, i.e., the Office of the Ombudsman,6 on retiring court personnel as it is a matter beyond the ambit of the Judiciary’s power of administrative supervision. WHEREFORE, the requirement of seeking a Clearance of Pendency/Non-Pendency of Administrative Case from the Civil Service Commission embodied in Section 7, Rule III of the Implementing Rules and Regulations of Republic Act No. 10154 is declared INAPPLICABLE to retiring employees of the Judiciary. SO ORDERED. UDK-15143, January 21, 2015 IN THE MATTER OF: SAVE THE SUPREME COURT JUDICIAL INDEPENDENCE AND FISCAL AUTONOMY MOVEMENT v. ABOLITION OF JUDICIARY DEVELOPMENT FUND (JDF) AND REDUCTION OF FISCAL AUTONOMY. RESOLUTION LEONEN, J.: This case involves the proposed bills abolishing the Judiciary Development Fund1 and replacing it with the “Judiciary Support Fund.” Funds collected from the proposed Judiciary Support Fund shall be remitted to the national treasury and Congress shall determine how the funds will be used. 2chanroblesvirtuallawlibrary Petitioner Rolly Mijares (Mijares) prays for the issuance of a writ of mandamus in order to compel this court to exercise its judicial independence and fiscal autonomy against the perceived hostility of Congress.3chanroblesvirtuallawlibrary This matter was raised to this court through the letter4 dated August 27, 2014, signed by Mijares and addressed to the Chief Justice and the Associate Justices of the Supreme Court. The letter is captioned:chanRoblesvirtualLawlibrary Petition for Mandamus with Manifestation to invoke the Judicial Independence and Fiscal Autonomy as mandated under the Constitution5 The letter was referred to the Clerk of Court En Banc for appropriate action.6 It was then docketed as UDK15143.7chanroblesvirtuallawlibrary In the letter-petition, Mijares alleges that he is “a Filipino citizen, and a concerned taxpayer[.]” 8 He filed this petition as part of his “continuing crusade to defend and uphold the Constitution” 9 because he believes in the rule

of law.10 He is concerned about the threats against the judiciary after this court promulgated Priority Development Assistance Fund11 case on November 19, 2013 and Disbursement Acceleration Program 12 case on July 1, 2014. The complaint implied that certain acts of members of Congress and the President after the promulgation of these cases show a threat to judicial independence. In the first week of July 2014, Ilocos Norte Representative Rodolfo Fariñas filed House Bill No. 4690, which would require this court to remit its Judiciary Development Fund collections to the national treasury.13chanroblesvirtuallawlibrary A week later, or on July 14, 2014, Iloilo Representative Niel Tupas, Jr., filed House Bill No. 4738 entitled “The Act Creating the Judicial Support Fund (JSF) under the National Treasury, repealing for the purpose Presidential Decree No. 1949.”14chanroblesvirtuallawlibrary On the same day, President Benigno Simeon C. Aquino III addressed the nation:chanRoblesvirtualLawlibrary My message to the Supreme Court: We do not want two equal branches of government to go head to head, needing a third branch to step in to intervene. We find it difficult to understand your decision. You had done something similar in the past, and you tried to do it again; there are even those of the opinion that what you attempted to commit was graver, if we were to base it on your decision. Abiding by the principle of “presumption of regularity,” we assumed that you did the right thing; after all, you are the ones who should ostensibly have a better understanding of the law. And now, when we use the same mechanism—which, you yourselves have admitted, benefit our countrymen—why is it then that we are wrong? We believe that the majority of you, like us, want only the best for the Filipino people. To the honorable justices of the Supreme Court: Help us help our countrymen. We ask that you review your decision, this time taking into consideration the points I have raised tonight. The nation hopes for your careful deliberation and response. And I hope that once you’ve examined the arguments I will submit, regarding the law and about our economy, solidarity will ensue—thus strengthening the entire government’s capability to push for the interests of the nation. 15 The issue for resolution is whether petitioner Rolly Mijares has sufficiently shown grounds for this court to grant the petition and issue a writ of mandamus. Petitioner argues that Congress “gravely abused its discretion with a blatant usurpation of judicial independence and fiscal autonomy of the Supreme Court.”16chanroblesvirtuallawlibrary Petitioner points out that Congress is exercising its power “in an arbitrary and despotic manner by reason of passion or personal hostility by abolishing the ‘Judiciary Development Fund’ (JDF) of the Supreme Court.”17chanroblesvirtuallawlibrary With regard to his prayer for the issuance of the writ of mandamus, petitioner avers that Congress should not act as “wreckers of the law”18 by threatening “to clip the powers of the High Tribunal[.]” 19 Congress committed a “blunder of monumental proportions”20 when it reduced the judiciary’s 2015 budget.21chanroblesvirtuallawlibrary Petitioner prays that this court exercise its powers to “REVOKE/ABROGATE and EXPUNGE whatever irreconcilable contravention of existing laws affecting the judicial independence and fiscal autonomy as mandated under the Constitution to better serve public interest and general welfare of the people.”22chanroblesvirtuallawlibrary This court resolves to deny the petition. The power of judicial review, like all powers granted by the Constitution, is subject to certain limitations. Petitioner must comply with all the requisites for judicial review before this court may take cognizance of the case. The requisites are:chanRoblesvirtualLawlibrary (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 constitutionality must be the very lis mota of the case.23 Petitioner’s failure to comply with the first two requisites warrants the outright dismissal of this petition. I The petition does not comply with the requisites of judicial review No actual case or controversy Article VIII, Section 1 of the Constitution provides that:chanRoblesvirtualLawlibrary ARTICLE VIII Judicial Department Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. (Emphasis supplied) One of the requirements for this court to exercise its power of judicial review is the existence of an actual controversy. This means that there must be “an existing case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory, lest the decision of the court would amount to an advisory opinion.”24 As emphasized by this court in Information Technology Foundation of the Phils. v. Commission on Elections:25 It is well-established in this jurisdiction that “. . . for a court to exercise its power of adjudication, there must be an actual case or controversy — one which involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution; the case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a court of justice. . . . [C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually challenging.” The controversy must be justiciable — definite and concrete, touching on the legal relations of parties having adverse legal interests. In other words, the pleadings must show an active antagonistic assertion of a legal right, on the one hand, and a denial thereof on the other; that is, it must concern a real and not a merely theoretical question or issue. There ought to be an actual and substantial controversy admitting of specific relief through a decree conclusive in nature, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. 26 For this court to rule on constitutional issues, there must first be a justiciable controversy. Pleadings before this court must show a violation of an existing legal right or a controversy that is ripe for judicial determination. In the concurring opinion in Belgica v. Ochoa:chanRoblesvirtualLawlibrary Basic in litigation raising constitutional issues is the requirement that there must be an actual case or controversy. This Court cannot render an advisory opinion. We assume that the Constitution binds all other constitutional departments, instrumentalities, and organs. We are aware that in the exercise of their various powers, they do interpret the text of the Constitution in the light of contemporary needs that they should address. A policy that reduces this Court to an adviser for official acts by the other departments that have not yet been done would unnecessarily tax our resources. It is inconsistent with our role as final arbiter and adjudicator and weakens the entire system of the Rule of Law. Our power of judicial review is a duty to make a final and binding construction of law. This power should generally be reserved when the departments have exhausted any and all acts that would remedy any perceived violation of right. The rationale that defines the extent of our doctrines laying down exceptions to our rules on justiciability are clear: Not only should the pleadings show a convincing violation of a right, but the impact should be shown to be so grave, imminent, and irreparable that any delayed exercise of judicial review or deference would undermine fundamental principles that should be enjoyed by the party complaining or the constituents that they legitimately represent.27 (Emphasis supplied) The reason for this requirement was explained in Angara v. Electoral Commission: 28 Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice

of the people as expressed through their representatives in the executive and legislative departments of the government.29 Petitioner’s allegations show that he wants this court to strike down the proposed bills abolishing the Judiciary Development Fund. This court, however, must act only within its powers granted under the Constitution. This court is not empowered to review proposed bills because a bill is not a law. Montesclaros v. COMELEC30 involved the postponement of the 2002 Sangguniang Kabataan Elections and the lowering of the age requirement in the Sangguniang Kabataan “to at least 15 but not more than 18 years of age.”31 Montesclaros and other parties filed a petition for certiorari, prohibition, and mandamus with prayer for the issuance of a temporary restraining order.32 One of the reliefs prayed for was:chanRoblesvirtualLawlibrary a) To prevent, annul or declare unconstitutional any law, decree, Comelec resolution/directive and other respondents’ issuances, orders and actions and the like in postponing the May 6, 2002 SK elections. 33 This court held that:chanRoblesvirtualLawlibrary . . . petitioners instituted this petition to: (1) compel public respondents to hold the SK elections on May 6, 2002 and should it be postponed, the SK elections should be held not later than July 15, 2002; (2) prevent public respondents from passing laws and issuing resolutions and orders that would lower the membership age in the SK. . . . .... Petitioners’ prayer to prevent Congress from enacting into law a proposed bill lowering the membership age in the SK does not present an actual justiciable controversy. A proposed bill is not subject to judicial review because it is not a law. A proposed bill creates no right and imposes no duty legally enforceable by the Court. A proposed bill, having no legal effect, violates no constitutional right or duty. The Court has no power to declare a proposed bill constitutional or unconstitutional because that would be in the nature of rendering an advisory opinion on a proposed act of Congress. The power of judicial review cannot be exercised in vacuo. . . . .... Thus, there can be no justiciable controversy involving the constitutionality of a proposed bill. The Court can exercise its power of judicial review only after a law is enacted, not before. Under the separation of powers, the Court cannot restrain Congress from passing any law, or from setting into motion the legislative mill according to its internal rules. Thus, the following acts of Congress in the exercise of its legislative powers are not subject to judicial restraint: the filing of bills by members of Congress, the approval of bills by each chamber of Congress, the reconciliation by the Bicameral Committee of approved bills, and the eventual approval into law of the reconciled bills by each chamber of Congress. Absent a clear violation of specific constitutional limitations or of constitutional rights of private parties, the Court cannot exercise its power of judicial review over the internal processes or procedures of Congress. .... . . . To do so would destroy the delicate system of checks and balances finely crafted by the Constitution for the three co-equal, coordinate and independent branches of government.34(Emphasis supplied, citations omitted) Similar to Montesclaros, petitioner is asking this court to stop Congress from passing laws that will abolish the Judiciary Development Fund. This court has explained that the filing of bills is within the legislative power of Congress and is “not subject to judicial restraint[.]”35 A proposed bill produces no legal effects until it is passed into law. Under the Constitution, the judiciary is mandated to interpret laws. It cannot speculate on the constitutionality or unconstitutionality of a bill that Congress may or may not pass. It cannot rule on mere speculations or issues that are not ripe for judicial determination.36 The petition, therefore, does not present any actual case or controversy that is ripe for this court’s determination. Petitioner has no legal standing Even assuming that there is an actual case or controversy that this court must resolve, petitioner has no legal standing to question the validity of the proposed bill. The rule on legal standing has been discussed in David v. Macapagal-Arroyo:37 Locus standi is defined as “a right of appearance in a court of justice on a given question.” In private suits, standing is governed by the “real-parties-in interest” rule as contained in Section 2, Rule 3 of the 1997 Rules of

Civil Procedure, as amended. It provides that “every action must be prosecuted or defended in the name of the real party in interest.” Accordingly, the “real-party-in interest” is “the party who stands to be benefited or injured by the judgment in the suit or the party entitled to the avails of the suit.” Succinctly put, the plaintiff’s standing is based on his own right to the relief sought. The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a “public right” in assailing an allegedly illegal official action, does so as a representative of the general public. He may be a person who is affected no differently from any other person. He could be suing as a “stranger,” or in the category of a “citizen,” or ‘taxpayer.” In either case, he has to adequately show that he is entitled to seek judicial protection. In other words, he has to make out a sufficient interest in the vindication of the public order and the securing of relief as a “citizen” or “taxpayer.” .... This Court adopted the “direct injury” test in our jurisdiction. In People v. Vera, it held that the person who impugns the validity of a statute must have “a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result.” The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the Senate, Manila Race Horse Trainers’ Association v. De la Fuente, Pascual v. Secretary of Public Works and Anti-Chinese League of the Philippines v. Felix.38 Petitioner has not shown that he has sustained or will sustain a direct injury if the proposed bill is passed into law. While his concern for judicial independence is laudable, it does not, by itself, clothe him with the requisite standing to question the constitutionality of a proposed bill that may only affect the judiciary. This court, however, has occasionally relaxed the rules on standing when the issues involved are of “transcendental importance” to the public. Specifically, this court has stated that:chanRoblesvirtualLawlibrary the rule on standing is a matter of procedure, hence, can be relaxed for nontraditional plaintiffs like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as when the matter is of transcendental importance, of overreaching significance to society, or of paramount public interest.39 Transcendental importance is not defined in our jurisprudence, thus, in Francisco v. House of Representatives:40 There being no doctrinal definition of transcendental importance, the following instructive determinants formulated by former Supreme Court Justice Florentino P. Feliciano are instructive: (1) the character of the funds or other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and (3) the lack of any other party with a more direct and specific interest in raising the questions being raised. 41 A mere invocation of transcendental importance in the pleading is not enough for this court to set aside procedural rules:chanRoblesvirtualLawlibrary Whether an issue is of transcendental importance is a matter determined by this court on a case-to-case basis. An allegation of transcendental importance must be supported by the proper allegations. 42 None of the determinants in Francisco are present in this case. The events feared by petitioner are merely speculative and conjectural. In addition to the determinants in Francisco, it must also be shown that there is a clear or imminent threat to fundamental rights. In an opinion in Imbong v. Ochoa:43 The Responsible Parenthood and Reproductive Health Act of 2012 should not be declared unconstitutional in whole or in any of its parts given the petitions filed in this case. None of the petitions properly present an “actual case or controversy,” which deserves the exercise of our awesome power of judicial review. It is our duty not to rule on the abstract and speculative issues barren of actual facts. These consolidated petitions, which contain bare allegations, do not provide the proper venue to decide on fundamental issues. The law in question is needed social legislation. That we rule on these special civil actions for certiorari and prohibition — which amounts to a pre-enforcement free-wheeling facial review of the statute and the implementing rules and regulations — is very bad precedent. The issues are far from justiciable. Petitioners claim in their class suits that they entirely represent a whole religion, the Filipino nation and, worse, all the unborn. The intervenors also claim the same representation: Filipinos and Catholics. Many of the petitions also sue the President of the Republic. We should apply our rules rigorously and dismiss these cases. The transcendental importance of the issues they want us to decide will be better served when we wait for the proper cases with the proper parties suffering real,

actual or more imminent injury. There is no showing of an injury so great and so imminent that we cannot wait for these cases.44(Emphasis supplied) The events feared by petitioner are contingent on the passing of the proposed bill in Congress. The threat of imminent injury is not yet manifest since there is no guarantee that the bill will even be passed into law. There is no transcendental interest in this case to justify the relaxation of technical rules. II Requisites for the issuance of a writ of mandamus not shown Rule 65, Section 3 of the 1997 Rules of Civil Procedure provides that:chanRoblesvirtualLawlibrary Rule 65 CERTIORARI, PROHIBITION AND MANDAMUS SEC. 3. Petition for mandamus.— When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent. The petition shall also contain a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46.cralawred The writ of mandamus will issue when the act sought to be performed is ministerial.45 An act is ministerial when it does not require the exercise of judgment and the act is performed in compliance with a legal mandate. 46 In a petition for mandamus, the burden of proof is on petitioner to show that one is entitled to the performance of a legal right and that respondent has a corresponding duty to perform the act. 47Mandamus will not lie “to compel an official to do anything which is not his duty to do or which it is his duty not to do, or to give to the applicant anything to which he is not entitled by law.”48chanroblesvirtuallawlibrary In this case, petitioner has not shown how he is entitled to the relief prayed for. Hence, this court cannot be compelled to exercise its power of judicial review since there is no actual case or controversy. Final note The judiciary is the weakest branch of government. It is true that courts have power to declare what law is given a set of facts, but it does not have an army to enforce its writs. Courts do not have the power of the purse. “Except for a constitutional provision that requires that the budget of the judiciary should not go below the appropriation for the previous year, it is beholden to the Congress depending on how low the budget is.”49chanroblesvirtuallawlibrary Despite being the third co-equal branch of the government, the judiciary enjoys less than 1% 50 of the total budget for the national government. Specifically, it was a mere 0.82% in 2014,51 0.85% in 2013,520.83% in 2012,53 and 0.83% in 2011.54chanroblesvirtuallawlibrary Maintenance and Other Operating Expenses or MOOE “pays for sundry matters such as utility payments, paper, gasoline and others.”55 The MOOE granted to the lower courts in 2014 was P1,220,905,000.00.56While this might seem like a large amount, the amount significantly dwindles when divided among all lower courts in the country. Per the 2014 General Appropriations Act (GAA), the approximate monthly MOOE for all courts are estimated as follows:chanRoblesvirtualLawlibrary Estimated Monthly MOOE Per Type of Court Number of Courts57 Court Regional Trial Courts 969 P46,408.67 Metropolitan Trial Courts 106 P46,071.89 Municipal Trial Courts in Cities 229 P46,206.01

Municipal Circuit Trial Courts 468 P46,305.69 Municipal Trial Courts 366 P46,423.30 Shari’a District Courts 5 P40,696.83 Shari’a Circuit Courts 51 P45,883.68 These amounts were arrived at using the following computation:chanRoblesvirtualLawlibrary Number of Courts x MOOE --------------------------Total Number of Courts / 12 ------------------------------------------------------------------------------------Number of Courts In comparison, the 2014 MOOE allocation for the House of Representatives was P3,386,439,000.0058 or about P282.2 million per month for the maintenance and operation of the House of Representatives compound in Batasan Hills. Even if this amount was divided equally among the 234 legislative districts, a representative’s office space would still have a monthly MOOE allocation of approximately P1.2 million, which is significantly higher than the average P46,000.00 allocated monthly to each trial court. It was only in 2013 that the budget allocated to the judiciary included an item for the construction, rehabilitation, and repair of the halls of justice in the capital outlay. The amount allocated was P1 million.59chanroblesvirtuallawlibrary In 2014, there was no item for the construction, rehabilitation, and repair of the halls of justice.60 This allocation would have been used to help fund the repair of existing halls of justice and the construction of new halls of justice in the entire country, including those courts destroyed by Typhoon Yolanda and the 2013 earthquake. The entire budget for the judiciary, however, does not only come from the national government. The Constitution grants fiscal autonomy to the judiciary to maintain its independence.61 In Bengzon v. Drilon:62 The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and constraints on the manner the independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy and violative not only of the express mandate of the Constitution but especially as regards the Supreme Court, of the independence and separation of powers upon which the entire fabric of our constitutional system is based.63 Courts, therefore, must also be accountable with their own budget. The Judiciary Development Fund, used to augment the expenses of the judiciary, is regularly accounted for by this court on a quarterly basis. The financial reports are readily available at the Supreme Court website.64chanroblesvirtuallawlibrary These funds, however, are still not enough to meet the expenses of lower courts and guarantee credible compensation for their personnel. The reality is that halls of justice exist because we rely on the generosity of local government units that provide additional subsidy to our judges.65 If not, the budget for the construction, repair, and rehabilitation of halls of justice is with the Department of Justice. 66chanroblesvirtuallawlibrary As a result, our fiscal autonomy and judicial independence are often undermined by low levels of budgetary outlay, the lack of provision for maintenance and operating expenses, and the reliance on local government units and the Department of Justice. “Courts are not constitutionally built to do political lobbying. By constitutional design, it is a co-equal department to the Congress and the Executive. By temperament, our arguments are legal, not political. We are best when we lay down all our premises in the finding of facts, interpretation of the law and understanding of precedents. We are not trained to produce a political statement or a media release.” 67chanroblesvirtuallawlibrary “Because of the nature of courts, that is – that it has to decide in favor of one party, we may not have a political base. Certainly, we should not even consider building a political base. All we have is an abiding faith that we should do what we could to ensure that the Rule of Law prevails. It seems that we have no champions when it comes to ensuring the material basis for fiscal autonomy or judicial independence.” 68chanroblesvirtuallawlibrary For this reason, we appreciate petitioner’s concern for the judiciary. It is often only through the vigilance of private citizens that issues relating to the judiciary can be discussed in the political sphere. Unfortunately, the remedy he seeks cannot be granted by this court. But his crusade is not a lost cause. Considering that what he seeks to be

struck down is a proposed bill, it would be better for him to air his concerns by lobbying in Congress. There, he may discover the representatives and senators who may have a similar enthusiastic response to truly making the needed investments in the Rule of Law. WHEREFORE, the petition is DISMISSED. SO ORDERED.