G.R. No.

189793 April 7, 2010

SENATOR BENIGNO SIMEON C. AQUINO III and MAYOR JESSE

ROBREDO, Petitioners,
vs.
COMMISSION ON ELECTIONS represented by its Chairman JOSE A.R. MELO and its
Commissioners, RENE V. SARMIENTO, NICODEMO T. FERRER, LUCENITO N. TAGLE,
ARMANDO VELASCO, ELIAS R. YUSOPH AND GREGORIO
LARRAZABAL, Respondents.

DECISION

PEREZ, J.:

This case comes before this Court by way of a Petition for Certiorari and Prohibition under
Rule 65 of the Rules of Court. In this original action, petitioners Senator Benigno Simeon C.
Aquino III and Mayor Jesse Robredo, as public officers, taxpayers and citizens, seek the
nullification as unconstitutional of Republic Act No. 9716, entitled "An Act Reapportioning the
Composition of the First (1st) and Second (2nd) Legislative Districts in the Province of
Camarines Sur and Thereby Creating a New Legislative District From Such
Reapportionment." Petitioners consequently pray that the respondent Commission on
Elections be restrained from making any issuances and from taking any steps relative to the
implementation of Republic Act No. 9716.

Republic Act No. 9716 originated from House Bill No. 4264, and was signed into law by
President Gloria Macapagal Arroyo on 12 October 2009. It took effect on 31 October 2009,
or fifteen (15) days following its publication in the Manila Standard, a newspaper of general
circulation.1 In substance, the said law created an additional legislative district for the
Province of Camarines Sur by reconfiguring the existing first and second legislative districts
of the province.

Prior to Republic Act No. 9716, the Province of Camarines Sur was estimated to have a
population of 1,693,821,2distributed among four (4) legislative districts in this wise:

District Municipalities/Cities Population

1st District Del Gallego Libmanan 417,304

Ragay Minalabac
Lupi Pamplona
Sipocot Pasacao
Cabusao San Fernando

2nd District Gainza Canaman 474,899

Milaor Camaligan
Naga Magarao
Pili Bombon
Ocampo Calabanga

3rd District Caramoan Sangay 372,548

Garchitorena San Jose
Goa Tigaon
Lagonoy Tinamba
 Presentacion Siruma

4th District Iriga Buhi 429,070

Baao Bula
Balatan Nabua
Bato

Following the enactment of Republic Act No. 9716, the first and second districts of
Camarines Sur were reconfigured in order to create an additional legislative district for the
province. Hence, the first district municipalities of Libmanan, Minalabac, Pamplona,
Pasacao, and San Fernando were combined with the second district municipalities of Milaor
and Gainza to form a new second legislative district. The following table3 illustrates the
reapportionment made by Republic Act No. 9716:

District Municipalities/Cities Population

1st District Del Gallego 176,383

Ragay
Lupi
Sipocot
Cabusao

2nd District Libmanan San Fernando 276,777

Minalabac Gainza
Pamplona Milaor
Pasacao

3rd District (formerly 2nd District) Naga Camaligan 439,043

Pili Magarao
Ocampo Bombon
Canaman Calabanga

4th District (formerly 3rd District) Caramoan Sangay 372,548

Garchitorena San Jose
Goa Tigaon
Lagonoy Tinamba
Presentacion Siruma

5th District (formerly 4th District) Iriga Buhi 429,070

Baao Bula
Balatan Nabua
Bato

Republic Act No. 9716 is a well-milled legislation. The factual recitals by both parties of the
origins of the bill that became the law show that, from the filing of House Bill No. 4264 until
its approval by the Senate on a vote of thirteen (13) in favor and two (2) against, the process
progressed step by step, marked by public hearings on the sentiments and position of the
local officials of Camarines Sur on the creation of a new congressional district, as well as
argumentation and debate on the issue, now before us, concerning the stand of the
oppositors of the bill that a population of at least 250,000 is required by the Constitution for
such new district.4
Petitioner Aquino III was one of two senators who voted against the approval of the Bill by
the Senate. His co-petitioner, Robredo, is the Mayor of Naga City, which was a part of the
former second district from which the municipalities of Gainza and Milaor were taken for
inclusion in the new second district. No other local executive joined the two; neither did the
representatives of the former third and fourth districts of the province.

Petitioners contend that the reapportionment introduced by Republic Act No. 9716, runs
afoul of the explicit constitutional standard that requires a minimum population of two
hundred fifty thousand (250,000) for the creation of a legislative district.5 The petitioners
claim that the reconfiguration by Republic Act No. 9716 of the first and second districts of
Camarines Sur is unconstitutional, because the proposed first district will end up with a
population of less than 250,000 or only 176,383.

Petitioners rely on Section 5(3), Article VI of the 1987 Constitution as basis for the cited
250,000 minimum population standard.6 The provision reads:

Article VI

Section 5. (1) x x x x

(2) x x x x

(3) Each legislative district shall comprise, as far as practicable, contiguous,

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

(4) x x x x (Emphasis supplied).

The petitioners posit that the 250,000 figure appearing in the above-cited provision is the
minimum population requirement for the creation of a legislative district.7 The petitioners
theorize that, save in the case of a newly created province, each legislative district created
by Congress must be supported by a minimum population of at least 250,000 in order to be
valid.8 Under this view, existing legislative districts may be reapportioned and severed to
form new districts, provided each resulting district will represent a population of at least
250,000. On the other hand, if the reapportionment would result in the creation of a
legislative seat representing a populace of less than 250,000 inhabitants, the
reapportionment must be stricken down as invalid for non-compliance with the minimum
population requirement.

In support of their theory, the petitioners point to what they claim is the intent of the framers
of the 1987 Constitution to adopt a population minimum of 250,000 in the creation of
additional legislative seats.9 The petitioners argue that when the Constitutional Commission
fixed the original number of district seats in the House of Representatives to two hundred
(200), they took into account the projected national population of fifty five million
(55,000,000) for the year 1986.10 According to the petitioners, 55 million people represented
by 200 district representatives translates to roughly 250,000 people for every one (1)
representative.11 Thus, the 250,000 population requirement found in Section 5(3), Article VI
of the 1987 Constitution is actually based on the population constant used by the
Constitutional Commission in distributing the initial 200 legislative seats.
Thus did the petitioners claim that in reapportioning legislative districts independently from
the creation of a province, Congress is bound to observe a 250,000 population threshold, in
the same manner that the Constitutional Commission did in the original apportionment.

Verbatim, the submission is that:

1. Republic Act 9716 is unconstitutional because the newly apportioned first district
of Camarines Sur failed to meet the population requirement for the creation of the
legislative district as explicitly provided in Article VI, Section 5, Paragraphs (1) and
(3) of the Constitution and Section 3 of the Ordinance appended thereto; and

2. Republic Act 9716 violates the principle of proportional representation as provided

in Article VI, Section 5 paragraphs (1), (3) and (4) of the Constitution.12

The provision subject of this case states:

Article VI

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

(2) x x x x

(3) Each legislative district shall comprise, as far as practicable, contiguous,

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

(4) Within three years following the return of every census, the Congress shall make
a reapportionment of legislative districts based on the standards provided in this
section.

On the other hand, the respondents, through the Office of the Solicitor General, seek the
dismissal of the present petition based on procedural and substantive grounds.

On procedural matters, the respondents argue that the petitioners are guilty of two (2) fatal
technical defects: first, petitioners committed an error in choosing to assail the
constitutionality of Republic Act No. 9716 via the remedy of Certiorari and Prohibition under
Rule 65 of the Rules of Court; and second, the petitioners have no locus standi to question
the constitutionality of Republic Act No. 9716.

On substantive matters, the respondents call attention to an apparent distinction between

cities and provinces drawn by Section 5(3), Article VI of the 1987 Constitution. The
respondents concede the existence of a 250,000 population condition, but argue that a plain
and simple reading of the questioned provision will show that the same has no application
with respect to the creation of legislative districts in provinces.13 Rather, the 250,000
minimum population is only a requirement for the creation of a legislative district in a city.
In sum, the respondents deny the existence of a fixed population requirement for the
reapportionment of districts in provinces. Therefore, Republic Act No. 9716, which only
creates an additional legislative district within the province of Camarines Sur, should be
sustained as a perfectly valid reapportionment law.

We first pass upon the threshold issues.

The respondents assert that by choosing to avail themselves of the remedies of Certiorari
and Prohibition, the petitioners have committed a fatal procedural lapse. The respondents
cite the following reasons:

1. The instant petition is bereft of any allegation that the respondents had acted
without or in excess of jurisdiction, or with grave abuse of discretion.
1avvphi1

2. The remedy of Certiorari and Prohibition must be directed against a tribunal,

board, officer or person, whether exercising judicial, quasi-judicial, or ministerial
functions. Respondents maintain that in implementing Republic Act No. 9716, they
were not acting as a judicial or quasi-judicial body, nor were they engaging in the
performance of a ministerial act.

3. The petitioners could have availed themselves of another plain, speedy and
adequate remedy in the ordinary course of law. Considering that the main thrust of
the instant petition is the declaration of unconstitutionality of Republic Act No. 9716,
the same could have been ventilated through a petition for declaratory relief, over
which the Supreme Court has only appellate, not original jurisdiction.

The respondents likewise allege that the petitioners had failed to show that they had
sustained, or is in danger of sustaining any substantial injury as a result of the
implementation of Republic Act No. 9716. The respondents, therefore, conclude that the
petitioners lack the required legal standing to question the constitutionality of Republic Act
No. 9716.

This Court has paved the way away from procedural debates when confronted with issues
that, by reason of constitutional importance, need a direct focus of the arguments on their
content and substance.

The Supreme Court has, on more than one occasion, tempered the application of procedural
rules,14 as well as relaxed the requirement of locus standi whenever confronted with an
important issue of overreaching significance to society.15

Hence, in Del Mar v. Philippine Amusement and Gaming Corporation (PAGCOR)16 and
Jaworski v. PAGCOR,17 this Court sanctioned momentary deviation from the principle of the
hierarchy of courts, and took original cognizance of cases raising issues of paramount public
importance. The Jaworski case ratiocinates:

Granting arguendo that the present action cannot be properly treated as a petition for
prohibition, the transcendental importance of the issues involved in this case warrants that
we set aside the technical defects and take primary jurisdiction over the petition at bar. One
cannot deny that the issues raised herein have potentially pervasive influence on the social
and moral well being of this nation, specially the youth; hence, their proper and just
determination is an imperative need. This is in accordance with the well-entrenched principle
that rules of procedure are not inflexible tools designed to hinder or delay, but to facilitate
and promote the administration of justice. Their strict and rigid application, which would result
in technicalities that tend to frustrate, rather than promote substantial justice, must always be
eschewed. (Emphasis supplied)

Anent the locus standi requirement, this Court has already uniformly ruled in Kilosbayan v.
Guingona,18 Tatad v. Executive Secretary,19 Chavez v. Public Estates Authority20 and Bagong
Alyansang Makabayan v. Zamora,21 just to name a few, that absence of direct injury on the
part of the party seeking judicial review may be excused when the latter is able to craft an
issue of transcendental importance. In Lim v. Executive Secretary,22 this Court held that in
cases of transcendental importance, the cases must be settled promptly and definitely, and
so, the standing requirements may be relaxed. This liberal stance has been echoed in the
more recent decision on Chavez v. Gonzales.23

Given the weight of the issue raised in the instant petition, the foregoing principles must
apply. The beaten path must be taken. We go directly to the determination of whether or not
a population of 250,000 is an indispensable constitutional requirement for the creation of a
new legislative district in a province.

We deny the petition.

We start with the basics. Any law duly enacted by Congress carries with it the presumption of
constitutionality.24Before a law may be declared unconstitutional by this Court, there must be
a clear showing that a specific provision of the fundamental law has been violated or
transgressed. When there is neither a violation of a specific provision of the Constitution nor
any proof showing that there is such a violation, the presumption of constitutionality will
prevail and the law must be upheld. To doubt is to sustain.25

There is no specific provision in the Constitution that fixes a 250,000 minimum population
that must compose a legislative district.

As already mentioned, the petitioners rely on the second sentence of Section 5(3), Article VI
of the 1987 Constitution, coupled with what they perceive to be the intent of the framers of
the Constitution to adopt a minimum population of 250,000 for each legislative district.

The second sentence of Section 5(3), Article VI of the Constitution, succinctly provides:
"Each city with a population of at least two hundred fifty thousand, or each province, shall
have at least one representative."

The provision draws a plain and clear distinction between the entitlement of a city to a district
on one hand, and the entitlement of a province to a district on the other. For while a province
is entitled to at least a representative, with nothing mentioned about population, a city must
first meet a population minimum of 250,000 in order to be similarly entitled.

The use by the subject provision of a comma to separate the phrase "each city with a
population of at least two hundred fifty thousand" from the phrase "or each province" point to
no other conclusion than that the 250,000 minimum population is only required for a city, but
not for a province. 26

Plainly read, Section 5(3) of the Constitution requires a 250,000 minimum population only for
a city to be entitled to a representative, but not so for a province.
 The 250,000 minimum population requirement for legislative districts in cities was, in turn,
the subject of interpretation by this Court in Mariano, Jr. v. COMELEC.27

In Mariano, the issue presented was the constitutionality of Republic Act No. 7854, which
was the law that converted the Municipality of Makati into a Highly Urbanized City. As it
happened, Republic Act No. 7854 created an additional legislative district for Makati, which
at that time was a lone district. The petitioners in that case argued that the creation of an
additional district would violate Section 5(3), Article VI of the Constitution, because the
resulting districts would be supported by a population of less than 250,000, considering that
Makati had a total population of only 450,000. The Supreme Court sustained the
constitutionality of the law and the validity of the newly created district, explaining the
operation of the Constitutional phrase "each city with a population of at least two hundred
fifty thousand," to wit:

Petitioners cannot insist that the addition of another legislative district in Makati is not in
accord with section 5(3), Article VI of the Constitution for as of the latest survey (1990
census), the population of Makati stands at only four hundred fifty thousand (450,000). Said
section provides, inter alia, that a city with a population of at least two hundred fifty
thousand (250,000) shall have at least one representative. Even granting that the population
of Makati as of the 1990 census stood at four hundred fifty thousand (450,000), its legislative
district may still be increased since it has met the minimum population requirement of two
hundred fifty thousand (250,000). In fact, Section 3 of the Ordinance appended to the
Constitution provides that a city whose population has increased to more than two hundred
fifty thousand (250,000) shall be entitled to at least one congressional
representative.28 (Emphasis supplied)

The Mariano case limited the application of the 250,000 minimum population requirement for
cities only to its initial legislative district. In other words, while Section 5(3), Article VI of the
Constitution requires a city to have a minimum population of 250,000 to be entitled to a
representative, it does not have to increase its population by another 250,000 to be entitled
to an additional district.

There is no reason why the Mariano case, which involves the creation of an additional district
within a city, should not be applied to additional districts in provinces. Indeed, if an additional
legislative district created within a city is not required to represent a population of at least
250,000 in order to be valid, neither should such be needed for an additional district in a
province, considering moreover that a province is entitled to an initial seat by the mere fact of
its creation and regardless of its population.

Apropos for discussion is the provision of the Local Government Code on the creation of a
province which, by virtue of and upon creation, is entitled to at least a legislative district.
Thus, Section 461 of the Local Government Code states:

Requisites for Creation. – (a) A province may be created if it has an average annual income,
as certified by the Department of Finance, of not less than Twenty million pesos
(P20,000,000.00) based on 1991 constant prices and either of the following requisites:

(i) a contiguous territory of at least two thousand (2,000) square kilometers, as

certified by the Lands Management Bureau; or

(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as
certified by the National Statistics Office.
Notably, the requirement of population is not an indispensable requirement, but is merely
an alternative addition to the indispensable income requirement.

Mariano, it would turn out, is but a reflection of the pertinent ideas that ran through the
deliberations on the words and meaning of Section 5 of Article VI.

The whats, whys, and wherefores of the population requirement of "at least two hundred fifty
thousand" may be gleaned from the records of the Constitutional Commission which, upon
framing the provisions of Section 5 of Article VI, proceeded to form an ordinance that would
be appended to the final document. The Ordinance is captioned "APPORTIONING THE
SEATS OF THE HOUSE OF REPRESENTATIVES OF THE CONGRESS OF THE
PHILIPPINES TO THE DIFFERENT LEGISLATIVE DISTRICTS IN PROVINCES AND
CITIES AND THE METROPOLITAN MANILA AREA." Such records would show that the
250,000 population benchmark was used for the 1986 nationwide apportionment of
legislative districts among provinces, cities and Metropolitan Manila. Simply put, the
population figure was used to determine how many districts a province, city, or Metropolitan
Manila should have. Simply discernible too is the fact that, for the purpose, population had to
be the determinant. Even then, the requirement of 250,000 inhabitants was not taken as an
absolute minimum for one legislative district. And, closer to the point herein at issue, in the
determination of the precise district within the province to which, through the use of the
population benchmark, so many districts have been apportioned, population as a factor
was not the sole, though it was among, several determinants.

From its journal,29 we can see that the Constitutional Commission originally divided the entire
country into two hundred (200) districts, which corresponded to the original number of district
representatives. The 200 seats were distributed by the Constitutional Commission in this
manner: first, one (1) seat each was given to the seventy-three (73) provinces and the ten
(10) cities with a population of at least 250,000;30 second, the remaining seats were then
redistributed among the provinces, cities and the Metropolitan Area "in accordance with the
number of their inhabitants on the basis of a uniform and progressive ratio."31 Commissioner
Davide, who later became a Member and then Chief Justice of the Court, explained this in
his sponsorship remark32 for the Ordinance to be appended to the 1987 Constitution:

Commissioner Davide: The ordinance fixes at 200 the number of legislative seats which are,
in turn, apportioned among provinces and cities with a population of at least 250, 000 and
the Metropolitan Area in accordance with the number of their respective inhabitants on the
basis of a uniform and progressive ratio. The population is based on the 1986 projection,
with the 1980 official enumeration as the point of reckoning. This projection indicates that our
population is more or less 56 million. Taking into account the mandate that each city with at
least 250, 000 inhabitants and each province shall have at least one representative, we first
allotted one seat for each of the 73 provinces, and each one for all cities with a population of
at least 250, 000, which are the Cities of Manila, Quezon, Pasay, Caloocan, Cebu, Iloilo,
Bacolod, Cagayan de Oro, Davao and Zamboanga. Thereafter, we then proceed[ed] to
increase whenever appropriate the number of seats for the provinces and cities in
accordance with the number of their inhabitants on the basis of a uniform and progressive
ratio. (Emphasis supplied).

Thus was the number of seats computed for each province and city. Differentiated from this,
the determination of the districts within the province had to consider "all protests and
complaints formally received" which, the records show, dealt with determinants other than
population as already mentioned.
Palawan is a case in point. Journal No. 107 of the Constitutional Commission narrates:

INTERPELLATION OF MR. NOLLEDO:

Mr. Nolledo inquired on the reason for including Puerto Princesa in the northern towns when
it was more affinity with the southern town of Aborlan, Batarasa, Brooke’s Point, Narra,
Quezon and Marcos. He stated that the First District has a greater area than the Second
District. He then queried whether population was the only factor considered by the
Committee in redistricting.

Replying thereto, Mr. Davide explained that the Committee took into account the standards
set in Section 5 of the Article on the Legislative Department, namely: 1) the legislative seats
should be apportioned among the provinces and cities and the Metropolitan Manila area in
accordance with their inhabitants on the basis of a uniform and progressive ratio; and 2) the
legislative district must be compact, adjacent and contiguous.

Mr. Nolledo pointed out that the last factor was not met when Puerto Princesa was included
with the northern towns. He then inquired what is the distance between Puerto Princesa from
San Vicente.

xxxx

Thereupon, Mr. Nolledo stated that Puerto Princesa has a population of 75,480 and based
on the apportionment, its inclusion with the northern towns would result in a combined
population of 265,000 as against only 186,000 for the south. He added that Cuyo and Coron
are very important towns in the northern part of Palawan and, in fact, Cuyo was the capital of
Palawan before its transfer to Puerto Princesa. He also pointed out that there are more
potential candidates in the north and therefore if Puerto Princesa City and the towns of Cuyo
and Coron are lumped together, there would be less candidates in the south, most of whose
inhabitants are not interested in politics. He then suggested that Puerto Princesa be included
in the south or the Second District.

Mr. Davide stated that the proposal would be considered during the period of amendments.
He requested that the COMELEC staff study said proposal.33

"PROPOSED AMENDMENT OF MR. NOLLEDO

On the districting of Palawan, Mr. Nolledo pointed out that it was explained in the
interpellations that District I has a total population of 265,358 including the City of Puerto
Princesa, while the Second District has a total population of 186,733. He proposed, however,
that Puerto Princesa be included in the Second District in order to satisfy the contiguity
requirement in the Constitution considering that said City is nearer the southern towns
comprising the Second District.

In reply to Mr. Monsod’s query, Mr. Nolledo explained that with the proposed transfer of
Puerto Princesa City to the Second District, the First District would only have a total
population of 190,000 while the Second District would have 262,213, and there would be no
substantial changes.

Mr. Davide accepted Mr. Nolledo’s proposal to insert Puerto Princesa City before the
Municipality of Aborlan.
There being no objection on the part of the Members the same was approved by the Body.

APPROVAL OF THE APPORTIONMENT AND DISTRICTING OF PALAWAN

There being no other amendment, on motion of Mr. Davide, there being no objection, the
apportionment and districting for the province of Palawan was approved by the Body.34

The districting of Palawan disregarded the 250,000 population figure. It was decided by the
importance of the towns and the city that eventually composed the districts.

Benguet and Baguio are another reference point. The Journal further narrates:

At this juncture, Mr. Davide informed the Body that Mr. Regalado made a reservation with
the Committee for the possible reopening of the approval of Region I with respect to Benguet
and Baguio City.

REMARKS OF MR. REGALADO

Mr. Regalado stated that in the formulation of the Committee, Baguio City and Tuba are
placed in one district. He stated that he was toying with the idea that, perhaps as a special
consideration for Baguio because it is the summer capital of the Philippines, Tuba could be
divorced from Baguio City so that it could, by itself, have its own constituency and Tuba
could be transferred to the Second District together with Itogon. Mr. Davide, however,
pointed out that the population of Baguio City is only 141,149.

Mr. Regalado admitted that the regular population of Baguio may be lower during certain
times of the year, but the transient population would increase the population substantially
and, therefore, for purposes of business and professional transactions, it is beyond question
that population-wise, Baguio would more than qualify, not to speak of the official business
matters, transactions and offices that are also there.

Mr. Davide adverted to Director de Lima’s statement that unless Tuba and Baguio City are
united, Tuba will be isolated from the rest of Benguet as the place can only be reached by
passing through Baguio City. He stated that the Committee would submit the matter to the
Body.

Upon inquiry of the Chair whether he is insisting on his amendment, Mr. Regalado stated
that the Body should have a say on the matter and that the considerations he had given are
not on the demographic aspects but on the fact that Baguio City is the summer capital, the
venue and situs of many government offices and functions.

On motion of Mr. Davide, there being no objection, the Body approved the reconsideration of
the earlier approval of the apportionment and districting of Region I, particularly Benguet.

Thereafter, on motion of Mr. Davide, there being no objection, the amendment of Mr.
Regalado was put to a vote. With 14 Members voting in favor and none against, the
amendment was approved by the Body.

Mr. Davide informed that in view of the approval of the amendment, Benguet with Baguio
City will have two seats. The First District shall comprise of the municipalities of Mankayan,
Buguias, Bakun, Kabayan, Kibungan, Bokod, Atok, Kapangan, Tublay, La Trinidad, Sablan,
Itogon and Tuba. The Second District shall comprise of Baguio City alone.

There being no objection, the Body approved the apportionment and districting of Region I.35

Quite emphatically, population was explicitly removed as a factor.

It may be additionally mentioned that the province of Cavite was divided into districts based
on the distribution of its three cities, with each district having a city: one district "supposed to
be a fishing area; another a vegetable and fruit area; and the third, a rice growing area,"
because such consideration "fosters common interests in line with the standard of
compactness."36 In the districting of Maguindanao, among the matters discussed were
"political stability and common interest among the people in the area" and the possibility of
"chaos and disunity" considering the "accepted regional, political, traditional and sectoral
leaders."37 For Laguna, it was mentioned that municipalities in the highland should not be
grouped with the towns in the lowland. For Cebu, Commissioner Maambong proposed that
they should "balance the area and population."38

Consistent with Mariano and with the framer deliberations on district apportionment, we
stated in Bagabuyo v. COMELEC39 that:

x x x Undeniably, these figures show a disparity in the population sizes of the districts. The
Constitution, however, does not require mathematical exactitude or rigid equality as a
standard in gauging equality of representation. x x x. To ensure quality representation
through commonality of interests and ease of access by the representative to the
constituents, all that the Constitution requires is that every legislative district should
comprise, as far as practicable, contiguous, compact and adjacent territory. (Emphasis
supplied).

This 2008 pronouncement is fresh reasoning against the uncompromising stand of petitioner
that an additional provincial legislative district, which does not have at least a 250,000
population is not allowed by the Constitution.

The foregoing reading and review lead to a clear lesson.

Neither in the text nor in the essence of Section 5, Article VI of the Constitution can, the
petition find support. And the formulation of the Ordinance in the implementation of the
provision, nay, even the Ordinance itself, refutes the contention that a population of 250,000
is a constitutional sine qua non for the formation of an additional legislative district in a
province, whose population growth has increased beyond the 1986 numbers.

Translated in the terms of the present case:

1. The Province of Camarines Sur, with an estimated population of 1,693,821 in 2007

is ─ based on the formula and constant number of 250,000 used by the
Constitutional Commission in nationally apportioning legislative districts among
provinces and cities ─ entitled to two (2) districts in addition to the four (4) that it was
given in the 1986 apportionment. Significantly, petitioner Aquino concedes this
point.40 In other words, Section 5 of Article VI as clearly written allows and does not
prohibit an additional district for the Province of Camarines Sur, such as that
provided for in Republic Act No. 9786;
 2. Based on the pith and pitch of the exchanges on the Ordinance on the protests
and complaints against strict conformity with the population standard, and more
importantly based on the final districting in the Ordinance on considerations other
than population, the reapportionment or the recomposition of the first and second
legislative districts in the Province of Camarines Sur that resulted in the creation of a
new legislative district is valid even if the population of the new district is 176,383 and
not 250,000 as insisted upon by the petitioners.

3. The factors mentioned during the deliberations on House Bill No. 4264, were:

(a) the dialects spoken in the grouped municipalities;

(b) the size of the original groupings compared to that of the regrouped
municipalities;

(c) the natural division separating the municipality subject of the discussion
from the reconfigured District One; and

(d) the balancing of the areas of the three districts resulting from the
redistricting of Districts One and Two.41

Each of such factors and in relation to the others considered together, with the increased
population of the erstwhile Districts One and Two, point to the utter absence of abuse of
discretion, much less grave abuse of discretion,42 that would warrant the invalidation of
Republic Act No. 9716.

To be clear about our judgment, we do not say that in the reapportionment of the first and
second legislative districts of Camarines Sur, the number of inhabitants in the resulting
additional district should not be considered. Our ruling is that population is not the only factor
but is just one of several other factors in the composition of the additional district. Such
settlement is in accord with both the text of the Constitution and the spirit of the letter, so
very clearly given form in the Constitutional debates on the exact issue presented by this
petition.
1avv phi 1

WHEREFORE, the petition is hereby DISMISSED. Republic Act No. 9716 entitled "An Act
Reapportioning the Composition of the First (1st) and Second (2nd) Legislative Districts in
the Province of Camarines Sur and Thereby Creating a New Legislative District From Such
Reapportionment" is a VALID LAW.

SO ORDERED.

E N B A NC

VICTORINO B. ALDABA, G.R No. 188078

CARLO JOLETTE S. FAJARDO,
JULIO G. MORADA, and Present:
MINERVA ALDABA MORADA,
Petitioners, PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
- versus - PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.

COMMISSION ON ELECTIONS, Promulgated:

Respondent. January 25, 2010
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CARPIO, J.:

The Case

This is an original action for Prohibition to declare unconstitutional Republic

Act No. 9591 (RA 9591), creating a legislative district for the city of
Malolos, Bulacan, for violating the minimum population requirement for the
creation of a legislative district in a city.

Antecedents
Before 1 May 2009, the province of Bulacan was represented in Congress
through four legislative districts. The First Legislative District comprised of
the city of Malolos[1] and the municipalities of Hagonoy, Calumpit, Pulilan,
Bulacan, and Paombong. On 1 May 2009, RA 9591 lapsed into law,
amending Malolos City Charter,[2] by creating a separate legislative district
for the city. At the time the legislative bills for RA 9591 were filed in
Congress in 2007, namely, House Bill No. 3162 (later converted to House
Bill No. 3693) and Senate Bill No. 1986, the population of Malolos City was
223,069. The population of Malolos City on 1 May 2009 is a contested fact
but there is no dispute that House Bill No. 3693 relied on an undated
certification issued by a Regional Director of the National Statistics Office
(NSO) that the projected population of the Municipality of Malolos will be
254,030 by the year 2010 using the population growth rate of 3.78 between
1995 to 2000.[3]

Petitioners, taxpayers, registered voters and residents of Malolos City, filed

this petition contending that RA 9591 is unconstitutional for failing to meet
the minimum population threshold of 250,000 for a city to merit
representation in Congress as provided under Section 5(3), Article VI of the
1987 Constitution and Section 3 of the Ordinance appended to the 1987
Constitution.

In its Comment to the petition, the Office of the Solicitor General (OSG)
contended that Congress use of projected population is non-justiciable as it
involves a determination on the wisdom of the standard adopted by the
legislature to determine compliance with [a constitutional requirement].[4]

The Ruling of the Court

We grant the petition and declare RA 9591 unconstitutional for being
violative of Section 5(3), Article VI of the 1987 Constitution and Section 3
of the Ordinance appended to the 1987 Constitution

The 1987 Constitution requires that for a city to have a legislative district,
the city must have a population of at least two hundred fifty
thousand.[5] The only issue here is whether the City of Malolos has a
population of at least 250,000, whether actual or projected, for the purpose
of creating a legislative district for the City of Malolos in time for the 10
May 2010 elections. If not, then RA 9591 creating a legislative district in the
City of Malolos is unconstitutional.

House Bill No. 3693 cites the undated Certification of Regional

Director Alberto N. Miranda of Region III of the National Statistics
Office (NSO) as authority that the population of the City of Malolos will be
254,030 by the year 2010. The Certification states that the population of
Malolos, Bulacan as of May 1, 2000 is 175,291. The Certification further
states that it was issued upon the request of Mayor Danilo A. Domingo of
the City of Malolos in connection with the proposed creation of Malolos
City as a lone congressional district of the Province of Bulacan.[6]

The Certification of Regional Director Miranda, which is based on

demographic projections, is without legal effect because Regional Director
Miranda has no basis and no authority to issue the Certification. The
Certification is also void on its face because based on its own growth rate
assumption, the population of Malolos will be less than 250,000 in the year
2010. In addition, intercensal demographic projections cannot be made for
the entire year. In any event, a city whose population has increased to
250,000 is entitled to have a legislative district only in the immediately
following election[7] after the attainment of the 250,000 population.

First, certifications on demographic projections can be issued only

if such projections are declared official by the National Statistics
Coordination Board(NSCB). Second, certifications based on demographic
projections can be issued only by the NSO Administrator or his
designated certifying officer. Third,intercensal population projections must
be as of the middle of every year.

Section 6 of Executive Order No. 135[8] dated 6 November 1993

issued by President Fidel V. Ramos provides:
SECTION 6. Guidelines on the Issuance of Certification of
Population sizes Pursuant to Section 7, 386, 442, 450, 452, and
461 of the New Local Government Code.

(a) The National Statistics Office shall issue certification on data

that it has collected and processed as well as on statistics that it
has estimated.

(b) For census years, certification on population size will be based

on actual population census counts; while for the intercensal
years, the certification will be made on the basis of a set of
demographic projections or estimates declared official by the
National Statistical Coordination Board (NSCB).

(c) Certification of population census counts will be made as of

the census reference date, such as May 1, 1990, while those of
intercensal population estimates will be as of middle of every
year.

(d) Certification of population size based on projections may

specify the range within which the true count is deemed likely to
fall. The range will correspond to the official low and high
population projections.

(e) The smallest geographic area for which a certification on

population size may be issued will be the barangay for census
population counts, and the city or municipality for intercensal
estimates. If an LGU wants to conduct its own population census,
during offcensus years, approval must be sought from the NSCB
and the conduct must be under the technical supervision of NSO
from planning to data processing.

(f) Certifications of population size based on published census

results shall be issued by the Provincial Census Officers or by the
Regional Census Officers. Certifications based on projections
or estimates, however, will be issued by the NSO
Administrator or his designated certifying officer. (Emphasis
supplied)
 The Certification of Regional Director Miranda does not state that the
demographic projections he certified have been declared official by the
NSCB. The records of this case do not also show that the Certification of
Regional Director Miranda is based on demographic projections declared
official by the NSCB. The Certification, which states that the population of
Malolos will be 254,030 by the year 2010, violates the requirement that
intercensal demographic projections shall be as of the middle of every
year. In addition, there is no showing that Regional Director Miranda has
been designated by the NSO Administrator as a certifying officer for
demographic projections in Region III. In the absence of such official
designation, only the certification of the NSO Administrator can be given
credence by this Court.

Moreover, the Certification states that the total population of Malolos,

Bulacan as of May 1, 2000 is 175,291. The Certification also states that the
population growth rate of Malolos is 3.78% per year between 1995 and
2000. Based on a growth rate of 3.78% per year, the population of Malolos
of 175,291 in 2000 will grow to only 241,550 in 2010.

Also, the 2007 Census places the population of Malolos at 223,069 as

of 1 August 2007.[9] Based on a growth rate of 3.78%, the population of
Malolos will grow to only 248,365 as of 1 August 2010. Even if the growth
rate is compounded yearly, the population of Malolos of 223,069 as of 1
August 2007 will grow to only 249,333 as of 1 August 2010.[10]
All these conflict with what the Certification states that the population
of Malolos will be 254,030 by the year 2010. Based on the Certifications
own growth rate assumption, the population of Malolos will be less than
250,000 before the 10 May 2010 elections. Incidentally, the NSO has no
published population projections for individual municipalities or cities but
only for entire regions and provinces.[11]

Executive Order No. 135 cannot simply be brushed aside. The OSG,
representing respondent Commission on Elections, invoked Executive Order
No. 135 in its Comment, thus:
 Here, based on the NSO projection, the population of the
Municipality of Malolos will be 254,030 by the year 2010 using
the population growth rate of 3.78 between 1995-2000.This
projection issued by the authority of the NSO Administrator
is recognized under Executive Order No. 135 (The Guidelines
on the Issuance of Certification of Population Sizes), which
states:
xxx

(d) Certification of population size based on projections

may specify the range within which the true count is
deemed likely to fall. The range will correspond to the
official low and high population projections.

xxx

(f) Certifications of population size based on published

census results shall be issued by the Provincial Census
Officers or by the Regional Census Officers.
Certifications based on projections or estimates, however,
will be issued by the NSO Administrator or his designated
certifying officer.[12] (Emphasis supplied)

Any population projection forming the basis for the creation of a legislative
district must be based on an official and credible source. That is why the
OSG cited Executive Order No. 135, otherwise the population projection
would be unreliable or speculative.
Section 3 of the Ordinance appended to the 1987 Constitution
provides:

Any province that may be created, or any city whose population

may hereafter increase to more than two hundred fifty
thousand shall be entitled in the immediately following election
to at least one Member or such number of members as it may
be entitled to on the basis of the number of its inhabitants and
according to the standards set forth in paragraph (3), Section 5 of
Article VI of the Constitution. xxx. (Emphasis supplied)
A city that has attained a population of 250,000 is entitled to a legislative
district only in the immediately following election. In short, a city must
first attain the 250,000 population, and thereafter, in the immediately
following election, such city shall have a district representative. There is no
showing in the present case that the City of Malolos has attained or will
attain a population of 250,000, whether actual or projected, before the 10
May 2010 elections.

Clearly, there is no official record that the population of the City

of Malolos will be at least 250,000, actual or projected, prior to the 10
May 2010 elections, the immediately following election after the supposed
attainment of such population. Thus, the City of Malolos is not qualified to
have a legislative district of its own under Section 5(3), Article VI of the
1987 Constitution and Section 3 of the Ordinance appended to the 1987
Constitution.

On the OSGs contention that Congress choice of means to comply

with the population requirement in the creation of a legislative district is
non-justiciable, suffice it to say that questions calling for judicial
determination of compliance with constitutional standards by other branches
of the government are fundamentally justiciable. The resolution of such
questions falls within the checking function of this Court under the 1987
Constitution to determine whether 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.[13]

Even under the 1935 Constitution, this Court had already ruled, The
overwhelming weight of authority is that district apportionment laws are
subject to review by the courts.[14] Compliance with constitutional standards
on the creation of legislative districts is important because the aim of
legislative apportionment is to equalize population and voting power among
districts.[15]

WHEREFORE, we GRANT the petition. We DECLARE Republic

Act No. 9591 UNCONSTITUTIONAL for being violative of Section 5(3),
Article VI of the 1987 Constitution and Section 3 of the Ordinance appended
to the 1987 Constitution.

SO ORDERED.

EN BANC

RODOLFO G. G.R. No. 180050

NAVARRO,VICTOR F. Present:
BERNAL, and
RENE O. MEDINA, PUNO, C.J.,
Petitioners, CARPIO,
CORONA,
CARPIO MORALES,
- versus VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
EXECUTIVE SECRETARY BRION,
EDUARDO ERMITA, representing PERALTA,
the President of the Philippines; BERSAMIN,
Senate of the Philippines, DEL CASTILLO,
represented by the SENATE ABAD,
PRESIDENT; House of VILLARAMA, JR.,
Representatives, represented by the PEREZ, and
HOUSE SPEAKER; GOVERNOR MENDOZA, JJ.
ROBERT ACE S. BARBERS,
representing the mother province of Promulgated:
Surigao del Norte; GOVERNOR
GERALDINE ECLEO February 10, 2010
VILLAROMAN, representing the
new Province of Dinagat Islands,
Respondents.
x----------------------------------------------------------------------------------------x

DECISION

PERALTA, J.:
This is a petition for certiorari under Rule 65 of the Rules of Court seeking
to nullify Republic Act (R.A.) No. 9355, otherwise known as An Act
Creating the Province of Dinagat Islands, for being unconstitutional.

Petitioners Rodolfo G. Navarro, Victor F. Bernal, and Rene O.

Medina aver that they are taxpayers and residents of the Province of Surigao
del Norte. They have served the Province of Surigao del Norte once as Vice-
Governor and members of the Provincial Board, respectively. They claim to
have previously filed a similar petition, which was dismissed on technical
grounds.[1] They allege that the creation of the Dinagat Islands as a new
province, if uncorrected, perpetuates an illegal act of Congress, and unjustly
deprives the people of Surigao del Norte of a large chunk of its territory,
Internal Revenue Allocation and rich resources from the area.

The facts are as follows:

The mother province of Surigao del Norte was created and established
under R.A. No. 2786 on June 19, 1960. The province is composed of three
main groups of islands: (1) the Mainland and Surigao City; (2) Siargao
Island and Bucas Grande; and (3) Dinagat Island, which is composed of
seven municipalities, namely, Basilisa, Cagdianao, Dinagat, Libjo, Loreto,
San Jose, and Tubajon.
Based on the official 2000 Census of Population and Housing
conducted by the National Statistics Office (NSO),[2] the population of the
Province of Surigao del Norte as of May 1, 2000 was 481,416, broken down
as follows:

Mainland 281,111
Surigao City 118,534
Siargao Island & Bucas Grande 93,354
Dinagat Island 106,951
Under Section 461 of R.A. No. 7610, otherwise known as The Local
Government Code, a province may be created if it has an average annual
income of not less than P20 million based on 1991 constant prices as
certified by the Department of Finance, and a population of not less than
250,000 inhabitants as certified by the NSO, or a contiguous territory of at
least 2,000 square kilometers as certified by the Lands Management Bureau.
The territory need not be contiguous if it comprises two or more islands or is
separated by a chartered city or cities, which do not contribute to the income
of the province.

On April 3, 2002, the Office of the President, through its Deputy

Executive Secretary for Legal Affairs, advised the Sangguniang
Panlalawigan of the Province of Surigao del Norte of the deficient
population in the proposed Province of Dinagat Islands.[3]

In July 2003, the Provincial Government of Surigao del Norte

conducted a special census, with the assistance of an NSO District Census
Coordinator, in the Dinagat Islands to determine its actual population in
support of the house bill creating the Province of Dinagat Islands. The
special census yielded a population count of 371,576 inhabitants in the
proposed province. The NSO, however, did not certify the result of the
special census. On July 30, 2003, Surigao del Norte Provincial Governor
Robert Lyndon S. Barbers issued Proclamation No. 01, which declared as
official, for all purposes, the 2003 Special Census in Dinagat Islands
showing a population of 371,576.[4]
The Bureau of Local Government Finance certified that the average
annual income of the proposed Province of Dinagat Islands for calendar
year 2002 to 2003 based on the 1991 constant prices
was P82,696,433.23. The land area of the proposed province is 802.12
square kilometers.
On August 14, 2006 and August 28, 2006, the Senate and the House
of Representatives, respectively, passed the bill creating the Province of
Dinagat Islands. It was approved and enacted into law as R.A. No. 9355
on October 2, 2006 by President Gloria Macapagal-Arroyo.

On December 2, 2006, a plebiscite was held in the mother Province of

Surigao del Norte to determine whether the local government units directly
affected approved of the creation of the Province of Dinagat Islands into a
distinct and independent province comprising the municipalities of Basilisa,
Cagdianao, Dinagat, Libjo (Albor), Loreto, San Jose, and Tubajon. The
result of the plebiscite yielded 69,943 affirmative votes and 63,502 negative
votes.[5]

On December 3, 2006, the Plebiscite Provincial Board of Canvassers

proclaimed that the creation of Dinagat Islands into a separate and distinct
province was ratified and approved by the majority of the votes cast in the
plebiscite.[6]

On January 26, 2007, a new set of provincial officials took their oath
of office following their appointment by President Gloria Macapagal-
Arroyo. Another set of provincial officials was elected during the
synchronized national and local elections held on May 14, 2007. On July 1,
2007, the elected provincial officials took their oath of office; hence, the
Province of Dinagat Islands began its corporate existence.[7]

Petitioners contended that the creation of the Province of Dinagat

Islands under R.A. No. 9355 is not valid because it failed to comply with
either the population or land area requirement prescribed by the Local
Government Code.
Petitioners prayed that R.A. No. 9355 be declared unconstitutional,
and that all subsequent appointments and elections to the new vacant
positions in the newly created Province of Dinagat Islands be declared null
and void. They also prayed for the return of the municipalities of the
Province of Dinagat Islands and the return of the former districts to the
mother Province of Surigao del Norte.
Petitioners raised the following issues:

I
WHETHER OR NOT REPUBLIC ACT NO. 9355, CREATING
THE NEW PROVINCE OF DINAGAT ISLANDS, COMPLIED
WITH THE CONSTITUTION AND STATUTORY
REQUIREMENTS UNDER SECTION 461 OF REPUBLIC ACT
NO. 7160, OTHERWISE KNOWN AS THE LOCAL
GOVERNMENT CODE OF 1991.
 II
WHETHER OR NOT THE CREATION OF DINAGAT AS A
NEW PROVINCE BY THE RESPONDENTS IS AN ACT OF
GERRYMANDERING.

III
WHETHER OR NOT THE RESULT OF THE PLEBISCITE IS
CREDIBLE AND TRULY REFLECTS THE MANDATE OF
THE PEOPLE.[8]

In her Memorandum, respondent Governor Geraldine B. Ecleo-

Villaroman of the Province of Dinagat Islands raises procedural issues. She
contends that petitioners do not have the legal standing to question the
constitutionality of the creation of the Province of Dinagat, since they have
not been directly injured by its creation and are without substantial interest
over the matter in controversy. Moreover, she alleges that the petition is
moot and academic because the existence of the Province of Dinagat Islands
has already commenced; hence, the petition should be dismissed.

The contention is without merit.

In Coconut Oil Refiners Association, Inc. v. Torres,[9] the Court held

that in cases of paramount importance where serious constitutional questions
are involved, the standing requirements may be relaxed and a suit may be
allowed to prosper even where there is no direct injury to the party claiming
the right of judicial review. In the same vein, with respect to other alleged
procedural flaws, even assuming the existence of such defects, the Court, in
the exercise of its discretion, brushes aside these technicalities and takes
cognizance of the petition considering its importance and in keeping with the
duty to determine whether the other branches of the government have kept
themselves within the limits of the Constitution.[10]
Further, supervening events, whether intended or accidental, cannot
prevent the Court from rendering a decision if there is a grave violation of
the Constitution.[11] The courts will decide a question otherwise moot and
academic if it is capable of repetition, yet evading review.[12]

The main issue is whether or not R.A. No. 9355 violates Section 10,
Article X of the Constitution.

Petitioners contend that the proposed Province of Dinagat Islands is

not qualified to become a province because it failed to comply with the land
area or the population requirement, despite its compliance with the income
requirement. It has a total land area of only 802.12 square kilometers, which
falls short of the statutory requirement of at least 2,000 square
kilometers. Moreover, based on the NSO 2000 Census of Population, the
total population of the proposed Province of DinagatIslands is only 106,951,
while the statutory requirement is a population of at least 250,000
inhabitants.

Petitioners allege that in enacting R.A. No. 9355 into law, the House
of Representatives and the Senate erroneously relied on paragraph 2 of
Article 9 of the Rules and Regulations Implementing the Local Government
Code of 1991, which states that [t]he land area requirement shall not apply
where the proposed province is composed of one (1) or more islands.[13] The
preceding italicized provision contained in the Implementing Rules and
Regulations is not expressly or impliedly stated as an exemption to the land
area requirement in Section 461 of the Local Government Code. Petitioners
assert that when the Implementing Rules and Regulations conflict with the
law that they seek to implement, the law prevails.

On the other hand, respondents contend in their respective

Memoranda that the Province of Dinagat Islands met the legal standard for
its creation.

First, the Bureau of Local Government Finance certified that the

average annual income of the proposed Province of Dinagat Islands for the
years 2002 to 2003 based on the 1991 constant prices was P82,696,433.25.
 Second, the Lands Management Bureau certified that though the land
area of the Province of Dinagat Islands is 802.12 square kilometers, it is
composed of one or more islands; thus, it is exempt from the required land
area of 2,000 square kilometers under paragraph 2 of Article 9 of the Rules
and Regulations Implementing the Local Government Code.

Third, in the special census conducted by the Provincial Government

of Surigao del Norte, with the assistance of a District Census Coordinator of
the NSO, the number of inhabitants in the Province of Dinagat Islands as of
2003, or almost three years before the enactment of R.A. No. 9355 in 2006,
was 371,576, which is more than the minimum requirement of 250,000
inhabitants.

In his Memorandum, respondent Governor Ace S. Barbers contends

that although the result of the special census conducted by the Provincial
Government of Surigao del Norte on December 2, 2003 was never certified
by the NSO, it is credible since it was conducted with the aid of a
representative of the NSO. He alleged that the lack of certification by the
NSO was cured by the presence of NSO officials, who testified during the
deliberations on House Bill No. 884 creating the Province of Dinagat
Islands, and who questioned neither the conduct of the special census nor
the validity of the result.

The Ruling of the Court

The petition is granted.

The constitutional provision on the creation of a province in Section

10, Article X of the Constitution states:

SEC. 10. No province, city, municipality, or barangay may be

created, divided, merged, abolished, or its boundary substantially altered,
except in accordance with the criteria established in the local
government code and subject to approval by a majority of the votes cast
in a plebiscite in the political units directly affected.[14]
 Pursuant to the Constitution, the Local Government Code of 1991
prescribed the criteria for the creation of a province, thus:

SEC. 461. Requisites for Creation. -- (a) A province may

be created if it has an average annual income, as certified by the
Department of Finance, of not less than Twenty
million pesos (P20,000,000.00) based on 1991 constant
prices and either of the following requisites:

(i) a contiguous territory of at least two thousand (2,000)

square kilometers, as certified by the Lands
Management Bureau; or
(ii) a population of not less than two hundred fifty thousand
(250,000) inhabitants as certified by the National
Statistics Office:

Provided, That, the creation thereof shall not reduce the

land area, population, and income of the original unit or units at
the time of said creation to less than the minimum requirements
prescribed herein.

(b) The territory need not be contiguous if it comprises

two (2) or more islands or is separated by a chartered city or
cities which do not contribute to the income of the province.

(c) The average annual income shall include the income

accruing to the general fund, exclusive of special funds, trust
funds, transfers, and non-recurring income.[15]

As a clarification of the territorial requirement, the Local Government

Code requires a contiguous territory of at least 2,000 square kilometers,
as certified by the Lands Management Bureau. However, the territory need
not be contiguous if it comprises two (2) or more islands or is separated
by a chartered city or cities that do not contribute to the income of the
province.

If a proposed province is composed of two or more islands, does

territory, under Sec. 461 of the Local Government Code, include not only
the land mass above the water, but also that which is beneath it?
 To answer the question above, the discussion in Tan v. Commission
on Elections (COMELEC)[16] is enlightening.

In Tan v. COMELEC, petitioners therein contended that Batas

Pambansa Blg. 885, creating the new Province of Negros del Norte, was
unconstitutional for it was not in accord with Art. XI, Sec. 3 of the
Constitution, and Batas Pambansa Blg. 337, the former Local Government
Code. Although what was applicable then was the 1973 Constitution and the
former Local Government Code, the provisions pertinent to the case are
substantially similar to the provisions in this case.

Art. XI, Sec. 3 of the 1973 Constitution provides:

Sec. 3. No province, city, municipality or barrio (barangay in the

1987 Constitution) may be created, divided, merged, abolished, or its
boundary substantially altered except in accordance with the criteria
established in the local government code, and subject to the approval by a
majority of the votes in a plebiscite in the unit or units affected.

The requisites for the creation of a province in Sec. 197 of Batas

Pambansa Blg. 337 are similar to the requisites in Sec. 461 of the Local
Government Code of 1991, but the requirements for population and
territory/land area are lower now, while the income requirement is
higher. Sec. 197 of Batas Pambansa Blg. 337, the former Local Government
Code, provides:

SEC. 197.Requisites for Creation.A province may be created if it

has a territory of at least three thousand five hundred square kilometers, a
population of at least five hundred thousand persons, an average
estimated annual income, as certified by the Ministry of Finance, of not
less than ten million pesos for the last three consecutive years, and its
creation shall not reduce the population and income of the mother
province or provinces at the time of said creation to less than the minimum
requirements under this section.The territory need not be contiguous if
it comprises two or more islands.
 The average estimated annual income shall include the income
allotted for both the general and infrastructure funds, exclusive of trust
funds, transfers and nonrecurring income.[17]

In Tan v. COMELEC, petitioners therein filed a case for Prohibition

for the purpose of stopping the COMELEC from conducting the plebiscite
scheduled on January 3, 1986. Since the Court was in recess, it was unable
to consider the petition on time. Petitioners filed a supplemental pleading,
averring that the plebiscite sought to be restrained by them was held as
scheduled, but there were still serious issues raised in the case affecting the
legality, constitutionality and validity of such exercise which should
properly be passed upon and resolved by the Court.

At issue in Tan was the land area of the new Province of Negros del
Norte, and the validity of the plebiscite, which did not include voters of the
parent Province of Negros Occidental, but only those living within the
territory of the new Province of Negros del Norte.

The Court held that the plebiscite should have included the people
living in the area of the proposed new province and those living in the parent
province. However, the Court did not direct the conduct of a new plebiscite,
because the factual and legal basis for the creation of the new province did
not exist as it failed to satisfy the land area requirement; hence, Batas
Pambansa Blg. 885, creating the new Province of Negros del Norte, was
declared unconstitutional. The Court found that the land area of the new
province was only about 2,856 square kilometers, which was below the
statutory requirement then of 3,500 square kilometers.

Respondents in Tan insisted that when the Local Government Code

speaks of the required territory of the province to be created, what is
contemplated is not only the land area, but also the land and water over
which the said province has jurisdiction and control. The respondents
submitted that in this regard, the marginal sea within the three mile limit
should be considered in determining the extent of the territory of the new
province.
 The Court stated that [s]uch an interpretation is strained, incorrect and
fallacious.[18] It held:

The last sentence of the first paragraph of Section 197 is most

revealing. As so stated therein the "territory need not be contiguous if it
comprises two or more islands." The use of the word territory in this
particular provision of the Local Government Code and in the very
last sentence thereof, clearly, reflects that "territory" as therein used,
has reference only to the mass of land area and excludes the waters
over which the political unit exercises control.

Said sentence states that the "territory need not be contiguous."

Contiguous means (a) in physical contact; (b) touching along all or most
of one side; (c) near, [n]ext, or adjacent (Webster's New World
Dictionary, 1972 Ed., p. 307). "Contiguous," when employed as an
adjective, as in the above sentence, is only used when it describes
physical contact, or a touching of sides of two solid masses of matter.
The meaning of particular terms in a statute may be ascertained by
reference to words associated with or related to them in the statute
(Animal Rescue League vs. Assessors, 138 A.L.R., p. 110). Therefore, in
the context of the sentence above, what need not be "contiguous" is the
"territory" the physical mass of land area. There would arise no need for
the legislators to use the word contiguous if they had intended that the
term "territory" embrace not only land area but also territorial
waters. It can be safely concluded that the word territory in the first
paragraph of Section 197 is meant to be synonymous with "land area"
only. The words and phrases used in a statute should be given the meaning
intended by the legislature (82 C.J.S., p. 636). The sense in which the
words are used furnished the rule of construction (In re Winton Lumber
Co., 63 p. 2d., p. 664).[19]

The discussion of the Court in Tan on the definition and usage of the
terms territory, and contiguous, and the meaning of the provision, The
territory need not be contiguous if it comprises two or more islands,
contained in Sec. 197 of the former Local Government Code, which provides
for the requisites in the creation of a new province, is applicable in this case
since there is no reason for a change in their respective definitions, usage, or
meaning in its counterpart provision in the present Local Government Code
contained in Sec. 461 thereof.
 The territorial requirement in the Local Government Code is adopted
in the Rules and Regulations Implementing the Local Government Code of
1991 (IRR),[20] thus:

ART. 9. Provinces.(a) Requisites for creationA province

shall not be created unless the following requisites on income and
either population or land area are present:

(1) Income An average annual income of not

less than Twenty Million Pesos (P20,000,000.00) for the
immediately preceding two (2) consecutive years based on
1991 constant prices, as certified by DOF. The average
annual income shall include the income accruing to the
general fund, exclusive of special funds, special accounts,
transfers, and nonrecurring income; and

(2) Population or land area - Population which shall

not be less than two hundred fifty thousand (250,000)
inhabitants, as certified by National Statistics Office;
or land area which must be contiguous with an area of
at least two thousand (2,000) square kilometers, as
certified by LMB. The territory need not be contiguous
if it comprises two (2) or more islands or is separated by
a chartered city or cities which do not contribute to the
income of the province. The land area requirement shall
not apply where the proposed province is composed of one
(1) or more islands. The territorial jurisdiction of a
province sought to be created shall be properly identified
by metes and bounds.

However, the IRR went beyond the criteria prescribed by Section 461
of the Local Government Code when it added the italicized portion above
stating that [t]he land area requirement shall not apply where the proposed
province is composed of one (1) or more islands. Nowhere in the Local
Government Code is the said provision stated or implied. Under Section 461
of the Local Government Code, the only instance when the territorial or land
area requirement need not be complied with is when there is already
compliance with the population requirement. The Constitution requires that
the criteria for the creation of a province, including any exemption from
such criteria, must all be written in the Local Government Code.[21] There is
no dispute that in case of discrepancy between the basic law and the rules
and regulations implementing the said law, the basic law prevails, because
the rules and regulations cannot go beyond the terms and provisions of the
basic law.[22]

Hence, the Court holds that the provision in Sec. 2, Art. 9 of the IRR
stating that [t]he land area requirement shall not apply where the proposed
province is composed of one (1) or more islands is null and void.

Respondents, represented by the Office of the Solicitor General, argue

that rules and regulations have the force and effect of law as long as they are
germane to the objects and purposes of the law. They contend that the
exemption from the land area requirement of 2,000 square kilometers is
germane to the purpose of the Local Government Code to develop political
and territorial subdivisions into self-reliant communities and make them
more effective partners in the attainment of national goals.[23] They
assert that in Holy Spirit Homeowners Association, Inc. v. Defensor,[24] the
Court declared as valid the implementing rules and regulations of a statute,
even though the administrative agency added certain provisions in the
implementing rules that were not found in the law.

In Holy Spirit Homeowners Association, Inc. v. Defensor, the

provisions in the implementing rules and regulations, which were questioned
by petitioner therein,merely filled in the details in accordance with a known
standard. The law that was questioned was R.A. No. 9207, otherwise known
as National Government Center (NGC) Housing and Land Utilization Act of
2003. It was therein declared that the policy of the State [was] to secure the
land tenure of the urban poor. Toward this end, lands located in the
NGC, Quezon City shall be utilized for housing, socioeconomic, civic,
educational, religious and other purposes. Section 5 of R.A. No. 9207
created the National Government Center Administration Committee, which
was tasked to administer, formulate the guidelines and policies and
implement the land disposition of the areas covered by the law.
Petitioners therein contended that while Sec. 3.2 (a.1) of the IRR fixed
the selling rate of a lot at P700.00 per sq. m., R.A. No. 9207 did not provide
for the price. In addition, Sec. 3.2 (c.1) of the IRR penalizes a beneficiary
who fails to execute a contract to sell within six (6) months from the
approval of the subdivision plan by imposing a price escalation, while there
is no such penalty imposed by R.A. No. 9207. Thus, they conclude that the
assailed provisions conflict with R.A. No. 9207 and should be nullified.
In Holy Spirit Homeowners Association, Inc., the Court held:

Where a rule or regulation has a provision not expressly stated or

contained in the statute being implemented, that provision does not
necessarily contradict the statute. A legislative rule is in the nature of
subordinate legislation, designed to implement a primary legislation by
providing the details thereof. All that is required is that the regulation
should be germane to the objects and purposes of the law; that the
regulation be not in contradiction to but in conformity with the
standards prescribed by the law.

In Section 5 of R.A. No. 9207, the Committee is granted the power

to administer, formulate guidelines and policies, and implement the
disposition of the areas covered by the law. Implicit in this authority and
the statutes objective of urban poor housing is the power of the Committee
to formulate the manner by which the reserved property may be allocated
to the beneficiaries. Under this broad power, the Committee is mandated
to fill in the details such as the qualifications of beneficiaries, the selling
price of the lots, the terms and conditions governing the sale and other key
particulars necessary to implement the objective of the law. These details
are purposely omitted from the statute and their determination is left to the
discretion of the Committee because the latter possesses special
knowledge and technical expertise over these matters.

The Committees authority to fix the selling price of the lots may be
likened to the rate-fixing power of administrative agencies. In case of a
delegation of rate-fixing power, the only standard which the legislature is
required to prescribe for the guidance of the administrative authority is
that the rate be reasonable and just. However, it has been held that even in
the absence of an express requirement as to reasonableness, this standard
may be implied. In this regard, petitioners do not even claim that the
selling price of the lots is unreasonable.

The provision on the price escalation clause as a penalty imposed

to a beneficiary who fails to execute a contract to sell within the
prescribed period is also within the Committees authority to formulate
guidelines and policies to implement R.A. No. 9207. The Committee has
the power to lay down the terms and conditions governing the disposition
of said lots, provided that these are reasonable and just. There is nothing
 objectionable about prescribing a period within which the parties must
execute the contract to sell. This condition can ordinarily be found in a
contract to sell and is not contrary to law, morals, good customs, public
order, or public policy.[25]

Hence, the provisions in the implementing rules and regulations that

were questioned in Holy Spirit Homeowners Association, Inc. merely filled
in the necessary details to implement the objective of the law in accordance
with a known standard, and were thus germane to the purpose of the law.

In this case, the pertinent provision in the IRR did not fill in any detail
in accordance with a known standard provided for by the law. Instead, the
IRR added an exemption to the standard or criteria prescribed by the
Local Government Code in the creation of a province as regards the land
area requirement, which exemption is not found in the Code. As such, the
provision in the IRR that the land area requirement shall not apply where the
proposed province is composed of one or more islands is not in conformity
with the standard or criteria prescribed by the Local Government Code;
hence, it is null and void.

Contrary to the contention of respondents, the extraneous provision

cannot be considered as germane to the purpose of the law to develop
territorial and political subdivisions into self-reliant communities because, in
the first place, it already conflicts with the criteria prescribed by the law in
creating a territorial subdivision.

Further, citing Galarosa v. Valencia,[26] the Office of the Solicitor

General contends that the IRRs issued by the Oversight Committee
composed of members of the legislative and executive branches of the
government are entitled to great weight and respect, as they are in the nature
of executive construction.

The case is not in point. In Galarosa, the issue was whether or not
Galarosa could continue to serve as a member of the Sangguniang
Bayan beyond June 30, 1992, the date when the term of office of the elective
members of the Sangguniang Bayan of Sorsogon expired. Galarosa was the
incumbent president of the Katipunang Bayan or Association
of Barangay Councils (ABC) of the Municipality of Sorsogon, Province of
Sorsogon; and was appointed as a member of the Sangguniang Bayan (SB)
of Sorsogon pursuant to Executive Order No. 342 in relation to Sec. 146 of
Batas Pambansa Blg. 337, the former Local Government Code.

Sec. 494 of the Local Government Code of 1991[27] states that the duly
elected presidents of the liga [ng mga barangay] at the municipal, city and
provincial levels, including the component cities and municipalities of
Metropolitan Manila, shall serve as ex officio members of the sangguniang
bayan, sangguniang panglungsod, and sangguniang panlalawigan,
respectively. They shall serve as such only during their term of office as
presidents of the liga chapters which, in no case, shall be beyond the term of
office of the sanggunian concerned. The section, however, does not fix the
specific duration of their term as liga president. The Court held that this was
left to the by-laws of the liga pursuant to Art. 211(g) of the Rules and
Regulations Implementing the Local Government Code of 1991. Moreover,
there was no indication that Secs. 491[28] and 494 should be given retroactive
effect to adversely affect the presidents of the ABC; hence, the said
provisions were to be applied prospectively.
The Court stated that there is no law that prohibits ABC presidents
from holding over as members of the Sangguniang Bayan. On the contrary,
the IRR, prepared and issued by the Oversight Committee upon specific
mandate of Sec. 533 of the Local Government Code, expressly recognizes
and grants the hold-over authority to the ABC presidents under Art. 210,
Rule XXIX.[29] The Court upheld the application of the hold-over doctrine in
the provisions of the IRR and the issuances of the DILG, whose purpose was
to prevent a hiatus in the government pending the time when the successor
may be chosen and inducted into office.
The Court held that Sec. 494 of the Local Government Code could not
have been intended to allow a gap in the representation of the barangays,
through the presidents of the ABC, in the sanggunian. Since the term of
office of the punong barangays elected in the March 28, 1989 election and
the term of office of the presidents of the ABC had not yet expired, and
taking into account the special role conferred upon, and the broader powers
and functions vested in the barangays by the Code, it was inferred that the
Code never intended to deprive the barangays of their representation in
the sangguniang bayan during the interregnum when the ligahad yet to be
formally organized with the election of its officers.
 Under the circumstances prevailing in Galarosa, the Court considered
the relevant provisions in the IRR formulated by the Oversight Committee
and the pertinent issuances of the DILG in the nature of executive
construction, which were entitled to great weight and respect.
Courts determine the intent of the law from the literal language of the
law within the laws four corners.[30] If the language of the law is plain, clear
and unambiguous, courts simply apply the law according to its express
terms.[31] If a literal application of the law results in absurdity, impossibility
or injustice, then courts may resort to extrinsic aids of statutory construction
like the legislative history of the law,[32] or may consider the implementing
rules and regulations and pertinent executive issuances in the nature of
executive construction.
In this case, the requirements for the creation of a province contained
in Sec. 461 of the Local Government Code are clear, plain and
unambiguous, and its literal application does not result in absurdity or
injustice. Hence, the provision in Art. 9(2) of the IRR exempting a proposed
province composed of one or more islands from the land-area requirement
cannot be considered an executive construction of the criteria prescribed by
the Local Government Code. It is an extraneous provision not intended by
the Local Government Code and, therefore, is null and void.
Whether R.A. No. 9355 complied with the requirements of
Section 461 of the Local Government Code in creating the
Province of Dinagat Islands

It is undisputed that R.A. No. 9355 complied with the income

requirement specified by the Local Government Code. What is disputed is
its compliance with the land area or population requirement.

R.A. No. 9355 expressly states that the Province of Dinagat Islands
contains an approximate land area of eighty thousand two hundred twelve
hectares (80,212 has.) or 802.12 sq. km., more or less, including Hibuson
Island and approximately forty-seven (47) islets x x x.[33] R.A. No. 9355,
therefore, failed to comply with the land area requirement of 2,000 square
kilometers.

The Province of Dinagat Islands also failed to comply with the

population requirement of not less than 250,000 inhabitants as certified by
the NSO. Based on the 2000 Census of Population conducted by the NSO,
the population of the Province of Dinagat Islands as of May 1, 2000 was
only 106,951.

Although the Provincial Government of Surigao del Norte conducted

a special census of population in Dinagat Islands in 2003, which yielded a
population count of 371,000, the result was not certified by the NSO as
required by the Local Government Code.[34] Moreover, respondents failed to
prove that with the population count of 371,000, the population of the
original unit (mother Province of Surigao del Norte) would not be reduced to
less than the minimum requirement prescribed by law at the time of the
creation of the new province.[35]
Respondents contended that the lack of certification by the NSO was
cured by the presence of the officials of the NSO during the deliberations on
the house bill creating the Province of Dinagat Islands, since they did not
object to the result of the special census conducted by the Provincial
Government of Surigao del Norte.

The contention of respondents does not persuade.

Although the NSO representative to the Committee on Local

Government deliberations dated November 24, 2005 did not object to the
result of the provincial governments special census, which was conducted
with the assistance of an NSO district census coordinator, it was agreed by
the participants that the said result was not certified by the NSO, which is
the requirement of the Local Government Code. Moreover, the NSO
representative, Statistician II Ma. Solita C. Vergara, stated that based on
their computation, the population requirement of 250,000 inhabitants would
be attained by the Province of Dinagat Islands by the year 2065. The
computation was based on the growth rate of the population, excluding
migration.

The pertinent portion of the deliberation on House Bill No. 884

creating the Province of Dinagat reads:
 THE CHAIRMAN (Hon. Alfredo S. Lim): . . . There is no
problem with the land area requirement and to the income
requirement. The problem is with the population requirement.

xxxx

Now because of this question, we would like to make it of

record the stand and reply of National Statistics Office. Can we
hear now from Ms. Solita Vergara?

MS. VERGARA. We only certify population based on the

counts proclaimed by the President. And in this case, we only
certify the population based on the results of the 2000 census of
population and housing.

THE CHAIRMAN. Is that

MS. VERGARA. Sir, as per Batas Pambansa, BP 72, we

only follow kung ano po yong mandated by the law. So, as
mandated by the law, we only certify those counts proclaimed
official by the President.

THE CHAIRMAN. But the government of Surigao del

Norte is headed by Governor Robert Lyndon Ace Barbers and
they conducted this census in year 2003 and yours was conducted
in year 2000. So, within that time frame, three years, there could
be an increase in population or transfer of residents, is that
possible?

MS. VERGARA. Yes, sir, but then we only conduct census

of population every 10 years and we conduct special census every
five years. So, in this case, maybe by next year, we will be
conducting the 2006.

THE CHAIRMAN. But next year will be quite a long time,

the matter is now being discussed on the table. So, is that the only
thing you could say that its not authorized by National Statistics
Office?

MS. VERGARA. Yes, sir. We have passed a

resolutionorders to the provincial officesto our provincial offices
stating that we can provide assistance in the conduct, but then we
cannot certify the result of the conduct as official.

THE CHAIRMAN. May we hear from the Honorable

Governor Robert Lyndon Ace Barbers, your reply on the
statement of the representative from National Statistics Office.

MR. BARBERS. Thank you, Mr. Chairman, good morning.

Yes, your Honor, we have conducted a special census in the
year 2003. We were accompanied by one of the employees from
the Provincial National Statistics Office.However, we also admit
the fact that our special census or the special census we
conducted in 2003 was not validated or certified by the
National Statistics Office, as provided by law. So, we admit on
our part that the certification that I have issued based on the
submission of records of each locality or each municipality
from Dinagat Island[s] were true and correct based on our level,
not on National Statistics Office level.

But with that particular objection of Executive Director

Ericta on what we have conducted, I believe, your Honor, it will
be, however, moot and academic in terms of the provision under
the Local Government Code on the requirements in making one
area a province because what we need is a minimum of 20
million, as stated by the Honorable Chairman and, of course, the
land area. Now, in terms of the land area, Dinagat Island[s] is
exempted because xxx the area is composed of more than one
island. In fact, there are about 47 low tide and high tide, less than
40? xxxx

THE CHAIRMAN. Thank you, Governor. xxxx

xxxx

THE CHAIRMAN. Although the claim of the governor is,

even if we hold in abeyance this questioned requirement, the other
two requirements, as mandated by law, is already achieved the
income and the land area.
 MS. VERGARA. We do not question po the results of
any locally conducted census, kasi po talagang we provide
assistance while theyre conducting their own census. But then,
ang requirement po kasi is, basta we will not certifywe will not
certify any population count as a result noong kanilang locally
conducted census. Eh, sa Local Government Code po, we all
know na ang xxx nire-require nila is a certification provided
by National Statistics Office. Yon po yong requirement, di ba
po?

THE CHAIRMAN. Oo. But a certification, even though

not issued, cannot go against actual reality because thats just a
bureaucratic requirement. Ang ibig kong sabihin, ipagpalagay, a
couple isang lalaki, isang babae nagmamahalan sila. As an
offshoot of this undying love, nagkaroon ng mga anak, hindi ba,
pero hindi kasal, its a live-in situation.Ang tanong ko lang,
whether eventually, they got married or not, that love
remains. And we cannot deny also the existence of the offspring
out of that love, di ba? Kayayon lang.Okay. So, we just skip on
this.

MS. VERGARA. Your Honor.

REP. ECLEO (GLENDA). Mr. Chairman.

THE CHAIRMAN. Please, Ms. Vergara.

MS. VERGARA. Yong sinasabi nyo po, sir, bale we

computed the estimated population po
ng Dinagat Province for the next years. So, based on our
computation, mari-reach po ng Dinagat Provinceyong
requirement na 250,000 population by the year 2065 pa
po based on the growth rates during the period of .

THE CHAIRMAN. 2065?

MS. VERGARA. 2065 po.

xxxx
 THE CHAIRMAN. . . . [T]his is not the center of our
argument since, as stated by the governor, kahit ha huwag na
munang i-consider itong population requirement, eh, nakalagpas
naman sila doon sa income and land area, hindi ba?

Okay. Lets give the floor to Congresswoman Ecleo.

REP. ECLEO (GLENDA). Thank you, Mr. Chairman.

This is in connection with the special census. Before this

was done, I went to the NSO. I talked to Administrator Ericta
on the population. Then, I was told that the population,
official population of Dinagat is 106,000. So, I told them that I
want a special census to be conducted because there are so many
houses that were not reached by the government enumerators, and
I want to have my own or our own special census with the help of
the provincial government. So, that is how it was
conducted. Then, they told me that the official population of the
proposed province will be on 2010. But at this moment, that is
the official population of 106,000, even if our special census,
we came up with 371,000 plus.

So, that is it.

THE CHAIRMAN. Thank you, Congresswoman.

Your insights will be reflected in my reply to Senate
President Drilon, so that he can also answer the letter of Bishop
Cabahug.

MS. VERGARA. Mr. Chairman, may clarifications lang

din po ako.
THE CHAIRMAN. Please.

MS. VERGARA. Yon po sa sinasabi naming estimated

population, we only based the computation doon sa growth rate
lang po talaga, excluding the migration. xxxx

MR. CHAIRMAN. Nong mga residents.

MS. VERGARA. Yes, sir, natural growth lang po talaga

[36]
siya.
 To reiterate, when the Dinagat Islands was proclaimed a new province
on December 3, 2006, it had an official population of only 106,951 based on
the NSO2000 Census of Population. Less than a year after the proclamation
of the new province, the NSO conducted the 2007 Census of Population.
The NSO certified that as of August 1, 2007, Dinagat Islands had a total
population of only 120,813,[37] which was still below the minimum
requirement of 250,000 inhabitants.[38]

In fine, R.A. No. 9355 failed to comply with either the territorial or
the population requirement for the creation of the Province of Dinagat
Islands.

The Constitution clearly mandates that the creation of local

government units must follow the criteria established in the Local
Government Code.[39] Any derogation of or deviation from the criteria
prescribed in the Local Government Code violates Sec. 10, Art. X of the
Constitution.[40]

Hence, R.A. No. 9355 is unconstitutional for its failure to comply

with the criteria for the creation of a province prescribed in Sec. 461 of the
Local Government Code.

Whether the creation of the Province of Dinagat Islands

is an act of gerrymandering

Petitioners contend that the creation of the Province of Dinagat

Islands is an act of gerrymandering on the ground that House Bill No. 884
excluded Siargao Island, with a population of 118,534 inhabitants, from the
new province for complete political dominance by Congresswoman Glenda
Ecleo-Villaroman. According to petitioners, if Siargao were included in the
creation of the new province, the territorial requirement of 2,000 square
kilometers would have been easily satisfied and the enlarged area would
have a bigger population of 200,305 inhabitants based on the 2000 Census of
Population by the NSO. But House Bill No. 884 excluded Siargao Island,
because its inclusion would result in uncertain political control. Petitioners
aver that, in the past, Congresswoman Glenda Ecleo-Villaroman lost her
congressional seat twice to a member of an influential family based in
Siargao. Therefore, the only way to complete political dominance is by
gerrymandering, to carve a new province in Dinagat Islands where the
Philippine Benevolent Members Association (PMBA), represented by the
Ecleos, has the numbers.

The argument of petitioners is unsubstantiated.

Gerrymandering is a term employed to describe an apportionment of

representative districts so contrived as to give an unfair advantage to the
party in power.[41] Fr. Joaquin G. Bernas, a member of the 1986
Constitutional Commission, defined gerrymandering as the formation of one
legislative district out of separate territories for the purpose of favoring a
candidate or a party.[42] The Constitution proscribes gerrymandering, as it
mandates each legislative district to comprise, as far as practicable, a
contiguous, compact and adjacent territory.[43]

As stated by the Office of the Solicitor General, the Province of

Dinagat Islands consists of one island and about 47 islets closely situated
together, without the inclusion of separate territories. It is an unsubstantiated
allegation that the province was created to favor Congresswoman Glenda
Ecleo-Villaroman.

Allegations of fraud and irregularities during the plebiscite

cannot be resolved in a special civil action for certiorari

Lastly, petitioners alleged that R.A. No. 9355 was ratified by a

doubtful mandate in a plebiscite held on December 2, 2005, where the yes
votes were 69,9343, while the no votes were 63,502. They contend that the
100% turnout of voters in the precincts of San Jose, Basilisa, Dinagat,
Cagdianao and Libjo was contrary to human experience, and that the results
were statistically improbable. Petitioners admit that they did not file any
electoral protest questioning the results of the plebiscite, because they lacked
the means to finance an expensive and protracted election case.

Allegations of fraud and irregularities in the conduct of a

plebiscite are factual in nature; hence, they cannot be the subject of this
special civil action for certiorari under Rule 65 of the Rules of Court,
which is a remedy designed only for the correction of errors of jurisdiction,
including grave abuse of discretion amounting to lack or excess of
jurisdiction.[44] Petitioners should have filed the proper action with the
Commission on Elections. However, petitioners admittedly chose not to
avail themselves of the correct remedy.

WHEREFORE, the petition is GRANTED. Republic Act No. 9355,

otherwise known as [An Act Creating the Province of Dinagat Islands], is
hereby declared unconstitutional. The proclamation of the Province of
Dinagat Islands and the election of the officials thereof are
declared NULL and VOID. The provision in Article 9 (2) of the Rules and
Regulations Implementing the Local Government Code of 1991 stating, The
land area requirement shall not apply where the proposed province is
composed of one (1) or more islands, is declared NULL and VOID.

No costs.

SO ORDERED.

G.R. No. 207851 July 8, 2014

ANGEL G. NAVAL, Petitioner,

vs.
COMMISSION ON ELECTIONS and NELSON B. JULIA, Respondents.

DECISION

REYES, J.:

A politician thinks of the next election –

 a statesman of the next generation.

- James Freeman Clarke, American preacher and author

The Case

A provincial board member cannot be elected and serve for more than three consecutive
terms. But then, the Court is now called upon to resolve the following questions. First.What
are the consequences to the provincial board member’s eligibility to run for the same elective
position if the legislative district, which brought him orher to office to serve the first two
consecutive terms, be reapportioned in such a way that 8 out of its 10 town constituencies
are carved out and renamed as another district? Second. Is the provincial board member’s
election to the same position for the third and fourth time, but now in representation ofthe
renamed district, a violation of the three-term limit rule?

Before the Court is a Petition for Certiorariwith an Urgent Prayer for the Issuance of a
Temporary Restraining Order and a Writ of Preliminary Injunction1 filed under Rule 64 of the
Rules of Court to assail the following resolutions of the public respondent Commission on
Elections (COMELEC):

(a) Resolution2 (first assailed resolution) issued by the Second Division on March 5, 2013, in
SPA No. 13-166 (DC), granting the petition filed by Nelson B. Julia (Julia), seeking to cancel
the Certificate of Candidacy3 (COC) as Member of the Sangguniang Panlalawiganof
Camarines Sur (Sanggunian) of Angel G. Naval (Naval), who is allegedly violating the three-
term limit imposed upon elective local officials as provided for in Article X, Section 84 of the
1987 Constitution, and Section 43(b)5 of the Local Government Code (LGC); and

(b) En BancResolution6 (second assailed resolution) issued on June 5, 2013, denying

Naval’s Motion for Reconsideration7 to the Resolution dated March 5, 2013.

Antecedents

From 2004 to 2007 and 2007 to 2010, Naval had been elected and had served as a member
of the Sanggunian, Second District, Province of Camarines Sur.

On October 12, 2009, the President approved Republic Act (R.A.) No. 9716,8 which
reapportioned the legislative districts in Camarines Sur in the following manner:

[[reference -
http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2014/july2014/207851.pdf]
]

District Before the Enactment of After the Enactment of

R.A. No. 9716 R.A. No. 9716

1st Libmanan, Minalabac, Del Gallego, Ragay, Lupi,

Sipocot, Cabusao
 Pamplona, Pasacao, San

Fernando, Del Gallego,

Ragay, Lupi, Sipocot,

Cabusao

2nd Naga City, Pili, Ocampo, Libmanan, Minalabac,

Camaligan, Canaman, Pamplona, Pasacao, San

Magarao, Bombon, Fernando, Gainza, Milaor

Calabanga,9 Gainza,

Milaor

3rd Caramoan, Garchitorena, Naga City, Pili, Ocampo,

Goa, Lagonoy, Presentacion, Camaligan, Canaman,

Sangay, San Jose, Tigaon, Magarao, Bombon,

Tinambac, Siruma Calabanga

4th Iriga City, Baao, Balatan, Caramoan, Garchitorena,

Bato, Buhi, Bula, Nabua Goa, Lagonoy,

Presentacion, Sangay, San

Jose, Tigaon, Tinambac,

Siruma

5th Iriga City, Baao, Balatan, Bato, Buhi,

Bula, Nabua

Notably, 8 out of 10 towns were taken from the old Second District to form the present Third
District. The present Second District is composed of the two remaining towns, Gainza and
Milaor, merged with five towns from the old First District.

In the 2010 elections, Naval once again won as among the members of the Sanggunian,
Third District. He served until 2013.

In the 2013 elections, Naval ran anewand was re-elected as Member of the Sanggunian,
Third District.
Julia was likewise a SanggunianMember candidate from the Third District in the 2013
elections. On October 29, 2012, he invoked Section 7810 of the Omnibus Election Code
(OEC) and filed beforethe COMELEC a Verified Petition to Deny Due Course or to Cancel
the Certificate of Candidacy11 of Naval. Julia posited that Naval had fully served the entire
Province of Camarines Sur for three consecutive terms as a member of the Sanggunian,
irrespective of the district he had been elected from. The three-term limit rule’s application is
more with reference to the same local elective post, and not necessarily in connection with
an identical territorial jurisdiction. Allowing Naval to run as a Sanggunianmember for the
fourth time is violative of the inflexible three-term limit rule enshrined in the Constitution and
the LGC, which must be strictly construed.12

The Resolution of the COMELEC Second Division

In the first assailed resolution issued on March 5, 2013, the COMELEC Second Division
cancelled Naval’s COC on grounds stated below:

[W]hen a candidate for public office swears in his COC that he is eligible for the elective
posts he seeks, while, in reality, he knowingly lacks the necessary requirements for eligibility,
he commits a false material misrepresentation cognizable under Section 78 of the [OEC].

xxxx

The Supreme Court[,] in the case of Lonzanida v. [COMELEC][,] detailed the important
components of[Article X, Section 8 of the Constitution]:

This Court held that the two conditions for the application of the disqualification must concur:
1) that the official concerned has been elected for three consecutive terms in the same local
government post and 2) that he has fully served three consecutive terms.It stated:

To recapitulate, the term limit for elective local officials must be taken to refer to the right to
be elected as well as the right to serve in the same elective position.

Consequently, it is not enough that an individual has servedthree consecutive terms in an

elective local office[;] he must also have been electedto the same position for the same
number of times before the disqualification can apply. x x x

x x x The first requisite does not only describe a candidate who has been elected for public
office for three consecutive terms. The candidate must have been elected in the samelocal
government post. This connotes that the candidate must have been inthe same elective
position serving the same constituency who elected him to office for three consecutive terms.

xxxx

The three-term limit rule was designed by the framers of the Constitution to prevent the
monopoly of power centered only on a chosen few. The said disqualification was primarily
intended to forestall the accumulation of massive political power by an elective local
government official in a given locality in order to perpetuate his tenure in office. The framers
also considered the necessityof the enhancement of the freedom of choice of the electorate
by broadening the selection of would-be elective public officers. By rendering ineligible for
public office those who have been elected and served for three consecutive terms in the
same public elective post, the prohibition seeks to infuse new blood in the political arena.
xxxx

x x x [T]he new Third District where [Naval] was elected and has served is composed of the
same municipalities comprising the previous Second District, absent the towns Gainza and
[Milaor]. The territorial jurisdiction [Naval] seeks to serve for the term 2013-2016 is the same
as the territorial jurisdiction he previously served. The electorate who voted for him in 2004,
2007 and 2010 isthe same electorate who shall vote for him come May 13, 2013 Elections.
They are the same group of voters who elected him into office for three consecutive terms.

The resolution of this Commission in the case of Bandillo, et al[.] v. Hernandez (SPA No. 10-
078)13 cannot be applied inthe case at bar. Hernandez who then hailed from Libmanan
belonged to the First District of Camarines Sur. With RepublicAct 9716, Libmanan,
Minalabac, Pamplona, Pasacao and San Fernando, all originally belonging to the First
District, were merged with Gainza and Milaor to form the Second District. With the addition of
the municipalities of Gainza and Milaor, it cannot be said that the previous First District
became the Second District only by name. The voters of Gainza and Milaoradded to the
electorate of the new Second District formed a different electorate, different from the one
which voted for Hernandez in the 2001, 2004 and 2007 elections. In the case at bar, the
municipalities comprising the new Third District are the same municipalities that consisted of
the previous Second [District], absent Milaor and Gainza.

The Supreme Court, in Latasav. [COMELEC], ruled that the conversion of the municipality
into a city did not convert the office of the municipal mayor into a local government post
different from the office of the city mayor[.]

x x x x14 (Citations omitted)

The Resolution of the COMELEC En Banc

In the second assailed resolution issued on June 5, 2013, the COMELEC en bancdenied
Naval’s Motion for Reconsideration to the above. The COMELEC pointed out thatabsent the
verification required under Section 3, Rule 19 of the COMELEC Rules of Procedure, Naval’s
motion was instantly dismissible. Nonetheless, the COMELEC proceeded to discuss the
demerits of Naval’s motion, viz:

The conditions for the application of the three-term limit rule are present in the instant case
as the records clearly establish that [Naval] is running for the 4th time for the same
government post. To put things in a proper perspective, it is imperative to review and discuss
the salient points in the case of Latasa v. [COMELEC]. The case involves the question of
whether or not a municipal mayor, having been elected and had already served for three (3)
consecutive terms, canrun as city mayor in light of the conversion of the municipality to a
city. In applying the three-term limit rule, the Court pointed out that the conversion of the
municipality into a city did not convert the office of the municipal mayor into a local
government post different from the office of the city mayor. The Court took into account the
following circumstances: (1) That the territorial jurisdiction of [the] city was the same as that
of the municipality; (2) That the inhabitants were the same group of voters who elected the
municipal mayor for three (3) consecutive terms; and (3) That the inhabitants were the same
group of voters [over] whom he held power and authority as their chief executive for nine
years.
Anchoring from the said case, it is therefore clear that the position to which [Naval] has filed
his candidacy for the 13 May 2013 x x x Elections is the same position for which he had been
elected and had served for the past nine (9) years.

xxxx

x x x The following circumstances establish that the subject posts are one and the same:
First, the territorial jurisdictions of the two (2) districts are the same except for the
municipalities of Gainza and Milaor which were excluded by R.A. No. 9716; Second, the
inhabitants of the 3rd District of Camarines Sur, where [Naval] is presently running as
member of the [Sanggunian], are the same voters who elected him for the past three (3)
consecutive terms; and Lastly, the inhabitants of the [3rd ] District are the same group of
voters whom [Naval] had served as member of the [Sanggunian] representing the 2nd
District.

x x x The enactment of R.A. No. 9716 did not convert [Naval’s] post [into one] different from
[w]hat he [previously had]. As correctly ruled by the Commission (Second Division), [Naval]
ha[d] already been elected and ha[d] already served inthe same government post for three
consecutive terms, x x x[.]

x x x x.15 (Citations omitted)

Unperturbed, Naval is now before the Court raising the issues of whether or not the
COMELEC gravely erred and ruled contrary to law and jurisprudence:

I. IN FINDING THAT NAVAL HAD ALREADY SERVED FOR THREE CONSECUTIVE

TERMS IN THE SAME GOVERNMENT POST;16

II. IN IGNORING THE FACT THAT SANGGUNIAN MEMBERS ARE ELECTED BY

LEGISLATIVE DISTRICTS;17and

III. WHEN IT RULED THAT THE PROHIBITION CONTEMPLATED BY SECTION 8,

ARTICLE X OF THE 1987 CONSTITUTION AND SECTION 43(B) OF THE LGC APPLIES
TO NAVAL.18

The Arguments of the Contending Parties

In support of the instant petition, Naval alleges that the First, Second and Third Legislative
Districts of Camarines Sur are not merely renamed but are composed of new sets of
municipalities. With the separation of Gainza and Milaor from the other eight towns which
used to comprise the Second District, the voters from the Third Legislative District are no
longer the same ones as those who had elected him to office in the 2004 and 2007 elections.

Naval further invokes Article 9419 of Administrative Order No. 270 prescribing the
Implementing Rules and Regulations of the LGC to argue that Sanggunianmembers are
elected by districts. Thus, the right to choose representatives in the Sanggunianpertains to
each of the districts. Naval was elected as Sanggunian member in 2004 and 2007 by the
Second District. In 2010 and 2013, it was the Third District, which brought him to office.
Essentially then, Naval’s election in 2013 is merely his second term as Sanggunianmember
for the Third District.
Naval likewise cites Borja, Jr. v. COMELEC20 to point out that for the disqualification on the
ground of the three-term limit to apply, it is not enough that an individual has served three
consecutive terms in an elective local office, but it is also required that he or she had been
elected to the same position for the same number of times.21

Naval also assails as erroneous the COMELEC’s interpretations of the rulings in Latasa v.
COMELEC22 and Bandillo, et al. v. Hernandez.23 In Latasa, the Court applied the three-term
prohibition only because notwithstanding the conversion of the Municipality of Digos into a
city, the mayor was to serve the same territorialjurisdiction and constituents. Naval asserts
that the same does not hold true in his case. Naval further avers that in Bandillo, which finds
more application in the instant petition, the COMELEC ruled that the three-term limit cannot
be invoked in a situation where the legislative districts have been altered. An extraction or an
addition both yields a change inthe composition of the voters.

Naval further emphasizes that he garnered the majority of the votes from his constituents,
whose will and mandate should be upheld. Besides, Julia’s counsel already withdrew his
appearance, indicating no less than his client’s lack of interest in still pursuing Naval’s ouster
from office.24

In its Comment,25 the Office of the Solicitor General (OSG) seeks the denial of the instant
petition. The OSG contends that Naval had been elected and had fully served the same local
elective post for three consecutive terms. Naval thus violatedSection 78 of the OEC when he
filed his COC despite knowledge of his ineligibility. Naval’s reliance on Bandillo is also
misplaced since in the said case, two towns were instead added to form a new district.
Apparently then, in Bandillo, there was a new set of voters. The OSG also alleges that Naval
is not entitled to the issuance of injunctive reliefs by this Court. No clear and unmistakable
right pertains to Naval and it is his eligibility to be elected as Sanggunianmember for the
Third District which is the issue at hand.

Ruling of the Court

The Court denies the petition.

As the issues are interrelated, they shall be discussed jointly.

The case before this Court is one of first impression. While the contending parties cite
Latasa, Lonzanida v. COMELEC,26 Borja,Aldovino, Jr. v. COMELEC,27 and Bandillo, which all
involve the application of the three-term limit rule, the factual and legal circumstances in
those cases are different and the doctrinal values therein do not directly address the issues
now at hand.

In Latasa, the issue arose as a result of the conversion of a municipality into a city. The then
municipal mayor attempted to evade the application upon him of the three-term limit rule by
arguing that the position of a city mayor was not the same as the one he previously held. The
Court was not convinced and, thus, declared that there was no interruption of the incumbent
mayor’s continuity of service.

In Lonzanida, a candidate ran for the mayoralty post and won in three consecutive elections.
While serving his third term, his opponent filed an election protest. Months before the
expiration of the mayor’s third term, he was ousted from office. He ran again for the same
post in the immediately succeeding election. A petition was thereafter filed assailing his
eligibility to run as mayor on the ground of violation of the three-term limit rule. The Court
ruled that the mayor could not beconsidered as having served a full third term. An
interruption for any length of time, if due to an involuntary cause, is enough to break the
elected official’s continuity of service.

In Borja, the mayor of Pateros died and was succeeded in office by the vice mayor. In the
two immediately succeeding elections, the latter vied for and won the mayoralty post. When
he ran for the same position for the third time, his disqualification was sought for alleged
violation of the three-term limit rule. The Court ruled that whenhe assumed the position of
mayor by virtue of succession, his service should not be treated as one full term. For the
disqualification to apply, the candidate should have been thrice elected for and had served
the same post consecutively. In Aldovino, preventive suspension was imposed upon an
elected municipal councilor. The Court ruled that the said suspension did not interrupt the
elective official’s term. Although hewas barred from exercising the functions of the position
during the period of suspension, his continued stay and entitlement tothe office remain
unaffected.

In Bandillo, a case decided by the COMELEC, Gainza and Milaor were added to five of the
ten towns, which used to comprise Camarines Sur’s old First District, to form the new
Second District. The COMELEC declined to apply the three-term limit rule against the
elected Provincial Board member on the ground that the addition of Gainza and Milaor
distinctively created a new district, with an altered territory and constituency.

In the case before this Court, the task is to determine the application of the three-term limit
rule upon local elective officials in renamed and/or reapportioned districts. In the process of
doing so, it is inevitable to discuss the role of elections and the nature of public office in a
democratic and republican state like ours.

The Role of Elections in our

Democratic and Republican State,

and the Restraints Imposed Upon

Those Who Hold Public Office

The Court begins with general and undeniable principles.

The Philippines is a democratic and republican State. Sovereignty resides in the people and
all government authority emanates from them.28

Then Associate Justice Reynato S. Puno explained the character of a republican state and a
public office, viz: A republic is a representative government, a government run by and for the
people. It is not a pure democracy where the people govern themselves directly. The
essence of republicanism is representation and renovation, the selection by the citizenry of a
corps of public functionaries who derive their mandate from the people and act on their
behalf, serving for a limited period only, after which they are replaced or retained, at the
option of their principal. Obviously, a republican government is a responsiblegovernment
whose officials hold and discharge their position as a public trust and shall, according to the
Constitution, ‘at all times be accountable to the people’ they are sworn to serve. The purpose
of a republican government it is almost needless to state, is the promotion of the common
welfare according to the will of the people themselves.29 (Emphasis ours and italics in the
original)
In Tolentino v. COMELEC,30 Justice Puno likewise characterized the role of the electoral
process in the following wise:

The electoral process is one of the linchpins of a democratic and republican framework
because it isthrough the act of voting that government by consent is secured. Through the
ballot, people express their will on the defining issues of the day and they are able to choose
their leaders in accordance with the fundamental principle of representative democracy that
the people should elect whom they please to govern them. Voting has an important
instrumental value in preserving the viability of constitutional democracy. It has traditionally
been taken as a prime indicator of democratic participation.31 (Citations omitted and italics
ours)

The importance of elections cannottherefore be over emphasized. Thus,

True, election is the expression ofthe sovereign power of the people. In the exercise of
suffrage, a free people expects to achieve the continuity of government and the perpetuation
of its benefits. However, inspite of its importance, the privileges and rights arising from
having been elected may be enlarged or restricted by law. x x x.32(Italics ours)

Hence, while it is settled that in elections, the first consideration of every democratic polity is
to give effect to the expressed will of the majority, there are limitations tobeing elected to a
public office.33 Our Constitution and statutes are explicit anent the existence of term limits,
the nature of public office, and the guarantee from the State that citizens shall have equal
access to public service.34 Section 8, Article X of our Constitution, on term limits, is
significantly reiterated by Section 43(b) of the LGC. Moreover, the Court has time and again
declared that a public office is a public trust and not a vested property right.35

The Deliberations of the Members

of the Constitutional Commission

on the Three-Term Limit’s

Application to Local Elective

Officials

Following are entries in the Journal of the Constitutional Commission regarding the
exchanges of the members on the subject of the three-term limit rule imposed on local
elective officials: VOTING ON THE TERMS OF LOCAL OFFICIALS

With respect to local officials, Mr. Nolledo, informed that the Committee on Local
Governments had not decided on the term of office for local officials and suggested that the
Body decide on the matter.

xxxx

On Mr. Bacani’s inquiry regarding localofficials, Mr. Davide explained that local officials
would includethe governor, vice-governor and the members of the provincial board; the city
mayor, city vice-mayor and members of the city board; and the municipal mayor, municipal
vice mayor and members of the municipal council. He stated that barangay officials would be
governed by speciallaw, to which Mr. Nolledo agreed.

xxxx

MOTION TO VOTE ON THE PROPOSALS RELATIVE TO ALTERNATIVE NO. 3

In reply to Mr. Guingona’s query onwhether the Committee had decided on the interpretation
of "two reelections", Mr. Davide suggested that the matter be submitted to a vote.

Thereupon, Mr. Romulo moved for a vote on whether Alternative No. 3 as proposed by Mr.
Garcia, would allow a local official three terms, after which he would not be allowed to seek
any reelection; or whether, as interpreted by Mr. Davide, it would mean that after two
successive reelections or a consecutive periodof nine years, he could run for reelection after
the lapse of three years.

xxxx

RESTATEMENT OF THE PROPOSALS

Mr. Garcia reiterated that the local officials could be reelected twice, after which, they would
be barred from ever runningfor reelection.

On the other proposal, Mr. Davide, on behalf ofthe Committee, stated that local officials after
two reelections would be allowed to run for reelection after the lapse of three years.

xxxx

MANIFESTATION OF MR. ROMULO

Upon resumption of session, Mr. Romulomanifested that the Body would proceed to the
consideration of two issues on the term of Representatives and local officials, namely: 1)
Alternative No. 1 (no further reelection after a total of three terms), and 2) Alternative No. 2
(no immediate reelection after three successive terms).

SPONSORSHIP REMARKS OF MR. GARCIA ON ALTERNATIVE NO. 1

Mr. Garcia stated that he was advocating Alternative No. 1 on four grounds: 1) to prevent
monopoly of political power because the country’s history showed that prolonged stay in
public office could lead to the creation of entrenched preservesof political dynasties; 2) to
broaden the choiceso that more people could be enlisted to the cause of public service; 3) no
one is indispensable in running the affairs of the countryand that reliance on personalities
would be avoided; and 4) the disqualification from running for reelection after three terms
would create a reserve of statesmen both in the local and national levels.

He added that the turnover in public office after nine years would ensure the introduction of
new ideas and approaches. He stressed that public office would no longer be a preserve of
conservatism and tradition, and that public service would no longer be limited to those
directly holding public office, but would also include consultative bodiesorganized by the
people. INQUIRY OF MR. REGALADO
In reply to Mr. Regalado’s query whether the three terms need not be served consecutively,
Mr. Garcia answered in the affirmative.

SPONSORSHIP REMARKS OF MR. MONSOD ON ALTERNATIVE NO. 2

Mr. Monsod stated that while the new Constitution would recognize people power because of
a new awareness, a new kind of voter and a new kind of Filipino, at the same time, it pre-
screens the candidates among whom the people would choose by barring those who would
have served for nine years from being reelected. He opined that this would actually require
an additional qualification for office to a certain number of people.

He stressed that, while the stand of the Commission is to create a reserve of statesmen,
their future participation is actually limited to some areas and only for a certain periodof time.
He added thatit is not for the Commission to decide on the future of our countrymen who
may have more years ahead of them to serve the country.

xxxx

INQUIRY OF MR. OPLE

xxxx

Thereupon, speaking in support of Mr. Monsod’s manifestation, Mr. Ople expressed

apprehension over the Body’s exercise of some sort of omnipotent power in disqualifying
those who will have served their tasks. He opined that the Commission had already taken
steps to prevent the accumulation of powers and prequisites that would permit officials to
stay on indefinitely and to transfer them to members of their families. He opined, however,
that perpetual disqualification would deprive the people of their freedom of choice.He stated
that the Body had already succeeded in striking a balance onpolicies which could ensure a
redistribution of opportunities to the people both in terms of political and economic power. He
stated that Philippine politics had been unshackled from the two-party system, which he said
was the most critical support for the perpetuation of political dynasties. Considering that such
achievement is already a victory, Mr. Ople stated that the role of political parties should not
be despised because the strength of democracy depends on how strong political parties are,
that a splintering thereof will mean a great loss to the vitality and resiliency of democracy.

Mr. Ople reiterated that he was against perpetual disqualification from office.

x x x x.

MR. GARCIA’S RESPONSE TOMR. OPLE’S STATEMENTS

Mr. Garcia stated that there are two principles involved in Alternative No. 1: 1) the
recognition of the ambivalent nature of political power, and 2) the recognition of alternative
forms of public service. He stated that it is important to remember the lessons learned from
the recent past; that public service is service to the people and not an opportunity to
accumulate political power, and that a prolonged stay in public office brings about political
dynasties or vested interests. Regarding political parties, he stated that it will encourage the
constant renewal of blood in party leadership, approach, style and ideas. He opined that this
is very healthy for a pluralist and multi-party democracy.
On the recognition of alternative forms of public service, Mr. Garcia stressed that public
service could be limited to public office since many good leaders who were in the streets and
in jail fought against the dictatorship. He stressed that public service would also mean
belonging to consultative bodies or people’s councils which brought about new forms of
service and leadership.

REMARKS OF MR. ABUBAKAR

Mr. Abubakar stated that in any democracy the voice of the people is the voice of God.He
stated that if the people want to elect a representative to serve them continuously, the
Commission should not arrogate unto itself the right to decide what the people want. He
stated that in the United States, a Senator had served for 30 years.

xxxx

REMARKS OF MS. AQUINO

Ms. Aquino stated that she differs from the views advanced by Mr. Garcia and Ms. Tan,
although she stated that they spoke of the same premises. She stated that she agrees with
them that leaders need not be projected and developed publicly in an election as leaders are
better tempered and tested in the various forms of mass struggles and organized work. She
stated that if the people are to be encouraged to have their own sense of responsibility in
national leadership, what ultimately matters is the political determination of the citizenry to
chart their own national destiny. She opined that the Body should allow the people to
exercise their own sense of proportion and imbibe the salutary effects of their own strength
to curtail power when it overreaches itself. She stressed that in the final analysis,the
Commission cannot legislate into the Constitution the essence of new politics as it is a
chastening experience of learning and unlearning. Adverting to Mr. Garcia’s statement that
politics is an imperfect art, she stated that the Commission could correct politics with all its
imperfections and flaws by a constitutional provision. She opined that perpetual
disqualification cannot provide the cure. She maintained that perpetual disqualification is, at
best, a palliative which could also be counter-productive, in the sense that it could effectively
foil the possibilities of realpublic service.

REMARKS OF MR. BACANI

Mr. Bacani stated that when the Body granted the illiterates the right to vote and that
proposals were made to empower the people to engage in the legislative process,the Body
presupposed the political maturity of the people. He observed that in this instance, political
maturity is denied with the constitutional bar for reelection.He opined that the Body should
stick to the premise that the people are politically mature.

REJOINDER OF MR. GARCIA

By way of rejoinder to Mr. Bacani’s statements,Mr. Garcia stated that the proposal was
basically premisedon the undue advantage of the incumbent in accumulating power, money,
party machine and patronage and not on lack of trust in the people.

Mr. Garcia stated that politics isnot won by ideals alone but by solid organized work by
organizations. He stated that with three terms, an official would have served the people long
enough.
xxxx

VOTING ON THE TWO ALTERNATIVES

Thereafter, the Body proceeded to vote by ballot on the two alternatives.

xxxx

RESULT OF THE VOTING

The result of the voting was as follows:

Alternative No. 1 (no further election after three successive terms) — 17 votes

Alternative No. 2 (no immediate reelection after three successive terms) — 26 votes

With 17 votes in favor of Alternative No. 1 and 26 in favor of Alternative No. 2, the Chair
declared Alternative No. 2 approved by the Body.36 (Emphasis and italics ours)

The Constitution mandates the

strict implementation of the

three-term limit rule.

The Court notes that in the process of drafting the Constitution, the framers thereof had not
discussed with specifity the subject of the three-term limit rule’s application on reapportioned
districts.

From the above-cited deliberations, however, the divergent stances of the members of the
Constitutional Commission on the general application of the three-term limit rule show. On
one side were those who espoused the stern view that perpetual disqualification to hold
public office after three consecutive terms would ensure that new blood would be infused into
our political system. More choices for the voters would give fuller meaning to our democratic
institutions. On the other side of the fence were those who believed that the imposition of
termlimits would be tantamount to squandering the experience of seasoned public servants
and a curtailment of the power of the citizens to elect whoever they want to remain in office.

In the end, 26 members of the Commission cast their votes in favor of the proposal that no
immediate re-election after three successive terms shall be allowed. On the other hand, 17
members stood pat on their view that there should be no further reelection after three
successive terms.

Clearly, the drafters of our Constitution are in agreement about the possible attendant evils if
there would be no limit to re-election. Notwithstanding their conflicting preferences on
whether the term limit would disqualify the elected official perpetually or temporarily, they
decided that only three consecutive elections tothe same position would be allowed.
Thereafter, the public official can once again vie for the same post provided there be a gap of
at least one term from his or her last election. The rule answers the need to prevent the
consolidation of political power in the hands of the few, while at the same time giving to the
people the freedom to call back to public service those who are worthy to be called
statesmen.

The compromise agreed upon by the drafters of our Constitution was a result of exhaustive
deliberations. The required gap after three consecutive elections is significant. Thus, the
rulecannot be taken with a grain of salt. Nothing less than its strict application is called for.

Ratio legis est anima.37

"A foolproof yardstick in constitutional construction is the intention underlying the provision
under consideration.Thus, it has been held that the Court in construing a Constitution should
bear in mind the object sought to be accomplished by its adoption, and the evils, if any,
sought to be prevented or remedied. A doubtful provision will be examined in the light of the
history of the times, and the condition and circumstances under which the Constitution was
framed. The object is to ascertain the reason which induced the framers of the Constitution
to enact the particular provision and the purpose sought to be accomplished thereby, in order
to construe the whole as to make the words consonant to that reason and calculated to effect
that purpose."38 In Aldovino, the Court describes the three-term limit rule as inflexible.

In Aldovino, a local elective official pleaded exemption from the application of the three-term
limit on the ground that there was an interruption in his service after the penalty of
suspension was imposed upon him. Although not in all four withNaval’s case, there are
principles enunciated therein which undeniably hold true, viz:

As worded, the constitutional provision fixes the term of a local elective office and limits an
elective official’s stay in office to no more than three consecutive terms. This is the first
branch of the rule embodied in Section 8, Article X.

Significantly, this provision refers to a "term" as a period of time – three years– during which
an official has title to office and can serve. x x x[.]

xxxx

The "limitation" under this first branch of the provision is expressed in the negative—"no such
official shall serve for more than three consecutive terms." This formulation—no more than
three consecutive terms—is a clear command suggesting the existence of an inflexible rule.
x x x.

xxxx

This examination of the wording of the constitutional provision and of the circumstances
surrounding its formulation impresses upon us the clear intent to make term limitation a high
priority constitutional objective whose terms must be strictly construed and which cannot be
defeated by, nor sacrificed for, values of less than equal constitutional worth. x x x.

xxxx

x x x [T]he Court signalled how zealously it guards the three-term limit rule. Effectively, these
cases teach usto strictly interpret the term limitation rule in favor of limitation rather than its
exception.
xxxx

[In] Latasa v. Commission on Electionsx x x[,] [t]he Court said:

This Court reiterates that the framers of the Constitution specifically included an exception to
the people’s freedom to choose those who will govern them in order to avoid the evil of a
single person accumulating excessive power over a particular territorial jurisdiction as a
result of a prolonged stay in the same office. x x x.

xxxx

To put it differently although at the risk of repetition, Section 8, Article X—both by structure
and substance—fixes an elective official’s term of office and limits his stay in office to three
consecutive terms as an inflexible rule that is stressed, no less, by citing voluntary
renunciation as an example of a circumvention. x x x.39 (Citations omitted, italics and
emphasis in the original and underscoring ours)

Reapportionment and its Basis

Reapportionment is "the realignment orchange in legislative districts brought about by

changes in population and mandated by the constitutional requirement of equality of
representation."40 The aim of legislative apportionment is to equalize population and voting
power among districts.41 The basis for districting shall be the number of the inhabitants of a
city or a province and not the number of registered voters therein.42

R.A. No. 9716 and the Reappor-

tioned Districts of Camarines Sur

Sections 1 to 3 of R.A. No. 9716 provide:

Section 1. The composition of the current First (1st) and Second (2nd) Legislative Districts in
the Province of Camarines Sur is hereby reapportioned in order to create an additional
legislative districtto commence in the next national elections after the effectivity of this Act.

Section 2. In furtherance of the reapportionment mandated by this Act, the municipalities of

Libmanan, Minalabac, Pamplona, Pasacao and San Fernando of the current First (1st)
Legislative District are hereby consolidated with the municipalities of Gainza and Milaor of
the current Second (2nd) Legislative District, to comprise the new legislative district
authorized under this Act.

Section 3. The result of the reapportionment described in this Act are summarized as follows:

a) First District – The remaining municipalities in the current First (1st) Legislative District
shall continue to be designated as the First (1st) Legislative District, composed of the
following municipalities: Del Gallego, Ragay, Lupi, Sipicot and Cabusao;

b) Second District – This new legislative districtshall be composed of the municipalities

enumerated in Section 2 hereof;
c) Third District – The current Second (2nd) Legislative District shall be renamedas the Third
(3rd) Legislative District, composed of the following: Naga City and the municipalities of Pili,
Ocampo, Camaligan, Canaman, Magarao, Bombon and Calabanga;

d) Fourth District – The current Third (3rd) Legislative District, without any change in its
composition, shall be renamedas the Fourth (4th) Legislative District, composed of the
following municipalities: Caramoan, Garchitorena, Goa, Lagonoy, Presentacion, Sangay,
San Jose, Tigaon, Tinambac and Siruma; and

e) Fifth District – The current Fourth (4th) Legislative District, without any change inits
composition, shall be renamedas the Fifth (5th) Legislative District, composed of the
following: Iriga City and the municipalities of Baao, Balatan, Bato, Buhi, Bula and Nabua.
(Italics and emphasis ours)

As a result of the reapportionment made by R.A. No. 9716, the old Second District of
Camarines Sur, minus only the two towns of Gainza and Milaor, is renamed as the Third
District and now configured as follows:43

[[reference -
http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2014/july2014/207851.pdf]
]

Before the Enactment of After the Enactment of

RA 9716 RA 9716

2 3rd District

nd Population: 439,043

District Naga

Population: 474,899 Pili

Gainza Ocampo

Milaor Canaman

Naga Camaligan

Pili Magarao

Ocampo Bombon

Canaman Calabanga

Camaligan
 Magarao

Bombon

Calabanga

R.A. No. 9716 created a new Second

District, but it merely renamed the

other four.

The Court notes that after the reapportionment of the districts in Camarines Sur, the current
Third District, which brought Naval to office in 2010 and 2013, has a population of 35,856
less than that of the old Second District, which elected him in 2004 and 2007. However, the
wordings of R.A. No. 9716 indicate the intent of the lawmakers to create a single new
Second District from the merger of the towns from the old First District with Gainza and
Milaor. As to the current Third District, Section 3(c) of R.A. No. 9716 used the word
"rename." Although the qualifier "without a change in its composition" was not found in
Section 3(c), unlike in Sections 3(d) and (e), still, what is pervasive isthe clear intent to create
a sole new district in that of the Second, while merely renaming the rest.

The following statutory construction rules surface:

First, the general rule in construing words and phrases used in a statute is that, in the
absence of legislative intent to the contrary, they should be given their plain, ordinary and
common usage meaning; the words should be read and considered intheir natural, ordinary,
commonly accepted usage, and without resorting to forced or subtle construction. Words are
presumed to have been employed by the lawmaker in their ordinary and common use and
acceptation. Second, a word of general significance ina statute is to be taken in its ordinary
and comprehensive sense, unless it is shown that the word is intended to be given a different
or restricted meaning; what is generally spoken shall be generally understood and general
words shall be understood in a general sense.44 (Citations omitted)

The Court looks to the language of the document itself in our search for its meaning.45

In Naval’s case, the words of R.A.No. 9716 plainly state that the new Second Districtis to be
created, but the Third Districtis to be renamed. Verba legis non est recedendum. The terms
used in a legal provision to be construed compels acceptanceand negates the power of the
courts to alter it, based on the postulate that the framers mean what they say.46

The verb createmeans to "make or produce something new."47 On the other hand, the verb
renamemeans to "give a new name to someone or something."48 A complete reading of R.A.
No. 9716 yields no logical conclusion other than that the lawmakers intended the old Second
District to be merely renamed as the current Third District.

It likewise bears noting that the actual difference in the population of the old Second District
from that of the current Third District amounts to less than 10% of the population of the latter.
This numericalfact renders the new Third District as essentially, although not literally, the
same as the old Second District. Hence, while Naval is correct in his argument that
Sanggunianmembers are elected by district, it does not alter the fact that the district which
elected him for the third and fourth time is the same one which brought him to office in 2004
and 2007.

The application upon Naval of the

three-term limit rule does not

undermine the constitutional

requirement to achieve equality of

representation among districts.

The rationale behind reapportionment is the constitutional requirement to achieve equality

ofrepresentation among the districts.49 It is with this mindset that the Court should consider
Naval’s argument anent having a new set of constituents electing him into office in 2010 and
2013.

Naval’s ineligibility to run, by reason of violation of the three-term limit rule, does not
undermine the right toequal representation of any of the districts in Camarines Sur. With or
without him, the renamed Third District, which he labels as a new set of constituents, would
still be represented, albeit by another eligible person.

The presumed competence of the

COMELEC to resolve matters

falling within its jurisdiction is

upheld.

"Time and again, the Court has held that a petition for certiorariagainst actions of the
COMELEC is confined only to instances of grave abuse of discretion amounting to patent
and substantial denial of due process, because the COMELEC is presumed to be most
competent in matters falling within its domain."50

"In a special civil action for certiorari, the burden rests on the petitioner to prove not
merelyreversible error, but grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the public respondent issuing the impugned order, decision or
resolution."51 "Grave abuse of discretion arises when a court or tribunal violates the
Constitution, the law or existing jurisprudence."52

In the case at bar, the Court finds the COMELEC’s disquisitions to be amply supported by
the Constitution,law and jurisprudence.

Conclusion

In sum, the Court finds no compelling reason to grant the reliefs prayed for by Naval. For the
Court to declare otherwise would be to create a dangerous precedent unintended by the
drafters of our Constitution and of R.A. No. 9716. Considering that the one-term gap or rest
after three consecutive elections is a result of a compromise among the members of the
Constitutional Commission, no cavalier exemptions or exceptions to its application is to be
allowed. Aldovinoaffirms this interpretation. Further, sustaining Naval’s arguments would
practically allow him to hold the same office for 15 years. These are the circumstances the
Constitution explicitly intends to avert.

Certainly, the Court accords primacy to upholding the will of the voting public, the real
sovereign, soto speak. However, let all the candidates for public office be reminded that as
citizens, we have a commitment to be bound by our Constitution and laws. Side by side our
privileges as citizens are restrictions too.

Einer Elhauge, a faculty member from Harvard Law School, wrote an article entitled "What
Term Limits Do That Ordinary Voting Cannot."53 In the article, Greek mythology was tapped
to make a tempting analogy. The gist of the story follows.

In Odyssey Book XII, the goddess Circe warned Odysseus of the Sirens who seduce all men
approaching them with their voices. Those who fell into the Sirens’ trap never returnedhome
to their wives and children. A clever strategy was thus hatched to secure safe passage for
Odysseus and his men. The men were to plug their ears with wax to muffle the songs of the
Sirens. Odysseus, on the other hand, was to be tied to the mast of the ship so he could still
listen to the songs, which may contain clues on how they can get home. When the wind died
down,Odysseus heard beautiful voices calling out to them. The voices were incomparable to
anything he had ever heard before. Even whenOdysseus knew that the irresistible voices
were coming from the Sirens, he struggled with all his strength to free himself from the ropes,
but was unable to do so. The voices became fainter as the men continued to row. When the
voices can no longer be heard, Odysseus realized how he had nearly been beguiled. They
had made it through safely and Odysseus was untied. It was their clever plan which kept
them all alive.54

The same lesson holds true in the case before this Court. The drafters of the Constitution
recognized the propensity of public officers to perpetuate themselves in power, hence, the
adoption of term limits and a guarantee of every citizen's equal access to public service.
These are the restrictions statesmen should observe for they are intended to help ensure the
continued vitality of our republican institutions.

WHEREFORE, IN VIEW OF THE FOREGOING, the petition is DENIED. The Resolutions

dated March 5, 2013 and June 5, 2013 of the Commission on Elections in SPA No. 13-166
(DC) are AFFIRMED.

SO ORDERED.

G.R. No. 176970 December 8, 2008

ROGELIO Z. BAGABUYO, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

DECISION

BRION, J.:
Before us is the petition for certiorari, prohibition, and mandamus,1 with a prayer for the
issuance of a temporary restraining order and a writ of preliminary injunction, filed by Rogelio
Bagabuyo (petitioner) to prevent the Commission on Elections (COMELEC) from
implementing Resolution No. 7837 on the ground that Republic Act No. 93712 - the law that
Resolution No. 7837 implements - is unconstitutional.

BACKGROUND FACTS

On October 10, 2006, Cagayan de Oro's then Congressman Constantino G. Jaraula filed
and sponsored House Bill No. 5859: "An Act Providing for the Apportionment of the Lone
Legislative District of the City of Cagayan De Oro."3This law eventually became Republic Act
(R.A.) No. 9371.4 It increased Cagayan de Oro's legislative district from one to two. For the
election of May 2007, Cagayan de Oro's voters would be classified as belonging to either the
first or the second district, depending on their place of residence. The constituents of each
district would elect their own representative to Congress as well as eight members of
the Sangguniang Panglungsod.

Section 1 of R.A. No. 9371 apportioned the City's barangays as follows:

Legislative Districts - The lone legislative district of the City of Cagayan De Oro is
hereby apportioned to commence in the next national elections after the effectivity of
this Act. Henceforth, barangays Bonbon, Bayabas, Kauswagan, Carmen, Patag,
Bulua, Iponan, Baikingon, San Simon, Pagatpat, Canitoan, Balulang, Lumbia,
Pagalungan, Tagpangi, Taglimao, Tuburan, Pigsag-an, Tumpagon, Bayanga,
Mambuaya, Dansulihon, Tignapoloan and Bisigan shall comprise the first district
while barangays Macabalan, Puntod, Consolacion, Camaman-an, Nazareth,
Macasandig, Indahag, Lapasan, Gusa, Cugman, FS Catanico, Tablon, Agusan,
Puerto, Bugo, and Balubal and all urban barangays from Barangay 1 to Barangay 40
shall comprise the second district.5

On March 13, 2007, the COMELEC en Banc promulgated Resolution No.

78376 implementing R.A. No. 9371.

Petitioner Rogelio Bagabuyo filed the present petition against the COMELEC on March 27,
2007.7 On 10 April 2008, the petitioner amended the petition to include the following as
respondents: Executive Secretary Eduardo Ermita; the Secretary of the Department of
Budget and Management; the Chairman of the Commission on Audit; the Mayor and the
members of the Sangguniang Panglungsod of Cagayan de Oro City; and its Board of
Canvassers.8

In asking for the nullification of R.A. No. 9371 and Resolution No. 7837 on constitutional
grounds, the petitioner argued that the COMELEC cannot implement R.A. No. 9371 without
providing for the rules, regulations and guidelines for the conduct of a plebiscite which is
indispensable for the division or conversion of a local government unit. He prayed for the
issuance of an order directing the respondents to cease and desist from implementing R.A.
No. 9371 and COMELEC Resolution No. 7837, and to revert instead to COMELEC
Resolution No. 7801 which provided for a single legislative district for Cagayan de Oro.

Since the Court did not grant the petitioner's prayer for a temporary restraining order or writ
of preliminary injunction, the May 14 National and Local Elections proceeded according to
R.A. No. 9371 and Resolution No. 7837.
The respondent's Comment on the petition, filed through the Office of the Solicitor General,
argued that: 1) the petitioner did not respect the hierarchy of courts, as the Regional Trial
Court (RTC) is vested with concurrent jurisdiction over cases assailing the constitutionality of
a statute; 2) R.A. No. 9371 merely increased the representation of Cagayan de Oro City in
the House of Representatives and Sangguniang Panglungsod pursuant to Section 5, Article
VI of the 1987 Constitution; 3) the criteria established under Section 10, Article X of the 1987
Constitution only apply when there is a creation, division, merger, abolition or substantial
alteration of boundaries of a province, city, municipality, or barangay; in this case, no such
creation, division, merger, abolition or alteration of boundaries of a local government unit
took place; and 4) R.A. No. 9371 did not bring about any change in Cagayan de Oro's
territory, population and income classification; hence, no plebiscite is required.

The petitioner argued in his reply that: 1) pursuant to the Court's ruling in Del Mar v.
PAGCOR,9 the Court may take cognizance of this petition if compelling reasons, or the
nature and importance of the issues raised, warrant the immediate exercise of its jurisdiction;
2) Cagayan de Oro City's reapportionment under R.A. No. 9371 falls within the meaning of
creation, division, merger, abolition or substantial alteration of boundaries of cities under
Section 10, Article X of the Constitution; 3) the creation, division, merger, abolition or
substantial alteration of boundaries of local government units involve a common denominator
- the material change in the political and economic rights of the local government units
directly affected, as well as of the people therein; 4) a voter's sovereign power to decide on
who should be elected as the entire city's Congressman was arbitrarily reduced by at least
one half because the questioned law and resolution only allowed him to vote and be voted
for in the district designated by the COMELEC; 5) a voter was also arbitrarily denied his right
to elect the Congressman and the members of the city council for the other legislative
district, and 6) government funds were illegally disbursed without prior approval by the
sovereign electorate of Cagayan De Oro City.10

THE ISSUES

The core issues, based on the petition and the parties' memoranda, can be limited to the
following contentious points:

1) Did the petitioner violate the hierarchy of courts rule; if so, should the instant
petition be dismissed on this ground?

2) Does R.A. No. 9371 merely provide for the legislative reapportionment of Cagayan
de Oro City, or does it involve the division and conversion of a local government
unit?

3) Does R.A. No. 9371 violate the equality of representation doctrine?

OUR RULING

Except for the issue of the hierarchy of courts rule, we find the petition totally without
merit.

The hierarchy of courts principle.

The Supreme Court has original jurisdiction over petitions for certiorari,
prohibition, mandamus, quo warranto, and habeas corpus.11 It was pursuant to this original
jurisdiction that the petitioner filed the present petition.
While this jurisdiction is shared with the Court of Appeals12 and the RTCs,13 a direct
invocation of the Supreme Court's jurisdiction is allowed only when there are special and
important reasons therefor, clearly and especially set out in the petition. Reasons of
practicality, dictated by an increasingly overcrowded docket and the need to prioritize in favor
of matters within our exclusive jurisdiction, justify the existence of this rule otherwise known
as the "principle of hierarchy of courts." More generally stated, the principle requires that
recourse must first be made to the lower-ranked court exercising concurrent jurisdiction with
a higher court.14

Among the cases we have considered sufficiently special and important to be exceptions to
the rule, are petitions for certiorari, prohibition, mandamus and quo warranto against our
nation's lawmakers when the validity of their enactments is assailed.15 The present petition is
of this nature; its subject matter and the nature of the issues raised - among them, whether
legislative reapportionment involves a division of Cagayan de Oro City as a local government
unit - are reasons enough for considering it an exception to the principle of hierarchy of
courts. Additionally, the petition assails as well a resolution of the COMELEC en banc issued
to implement the legislative apportionment that R.A. No. 9371 decrees. As an action against
a COMELEC en banc resolution, the case falls under Rule 64 of the Rules of Court that in
turn requires a review by this Court via a Rule 65 petition for certiorari.16For these reasons,
we do not see the principle of hierarchy of courts to be a stumbling block in our consideration
of the present case.

The Plebiscite Requirement.

The petitioner insists that R.A. No. 9371 converts and divides the City of Cagayan de Oro as
a local government unit, and does not merely provide for the City's legislative apportionment.
This argument essentially proceeds from a misunderstanding of the constitutional concepts
of apportionment of legislative districts and division of local government units.

Legislative apportionment is defined by Black's Law Dictionary as the determination of the

number of representatives which a State, county or other subdivision may send to a
legislative body.17It is the allocation of seats in a legislative body in proportion to the
population; the drawing of voting district lines so as to equalize population and voting power
among the districts.18 Reapportionment, on the other hand, is the realignment or change in
legislative districts brought about by changes in population and mandated by the
constitutional requirement of equality of representation.19

Article VI (entitled Legislative Department) of the 1987 Constitution lays down the rules on
legislative apportionment under its Section 5 which provides:

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

xxx
 (3) Each legislative district shall comprise, as far as practicable, continuous,
compact, and adjacent territory. Each city with a population of at least two hundred
fifty thousand, or each province, shall have at least one representative.

(4) Within three years following the return of every census, the Congress shall make
a reapportionment of legislative districts based on the standards provided in this
section.

Separately from the legislative districts that legal apportionment or reapportionment speaks
of, are the local government units (historically and generically referred to as "municipal
corporations") that the Constitution itself classified into provinces, cities, municipalities
and barangays.20 In its strict and proper sense, a municipality has been defined as "a body
politic and corporate constituted by the incorporation of the inhabitants of a city or town for
the purpose of local government thereof."21 The creation, division, merger, abolition or
alteration of boundary of local government units, i.e., of provinces, cities, municipalities,
and barangays, are covered by the Article on Local Government (Article X). Section 10 of
this Article provides:

No province, city, municipality, or barangay may be created, divided, merged,

abolished, or its boundary substantially altered, except in accordance with the criteria
established in the local government code and subject to approval by a majority of the
votes cast in a plebiscite in the political unit directly affected.

Under both Article VI, Section 5, and Article X, Section 10 of the Constitution, the authority to
act has been vested in the Legislature. The Legislature undertakes the apportionment and
reapportionment of legislative districts,22 and likewise acts on local government units by
setting the standards for their creation, division, merger, abolition and alteration of
boundaries and by actually creating, dividing, merging, abolishing local government units and
altering their boundaries through legislation. Other than this, not much commonality exists
between the two provisions since they are inherently different although they interface and
relate with one another.

The concern that leaps from the text of Article VI, Section 5 is political representation and the
means to make a legislative district sufficiently represented so that the people can be
effectively heard. As above stated, the aim of legislative apportionment is "to equalize
population and voting power among districts."23 Hence, emphasis is given to the number of
people represented; the uniform and progressive ratio to be observed among the
representative districts; and accessibility and commonality of interests in terms of each
district being, as far as practicable, continuous, compact and adjacent territory. In terms of
the people represented, every city with at least 250,000 people and every province
(irrespective of population) is entitled to one representative. In this sense, legislative districts,
on the one hand, and provinces and cities, on the other, relate and interface with each other.
To ensure continued adherence to the required standards of apportionment, Section 5(4)
specifically mandates reapportionment as soon as the given standards are met.

In contrast with the equal representation objective of Article VI, Section 5, Article X, Section
10 expressly speaks of how local government units may be "created, divided, merged,
abolished, or its boundary substantially altered." Its concern is the commencement, the
termination, and the modification of local government units' corporate existence and
territorial coverage; and it speaks of two specific standards that must be observed in
implementing this concern, namely, the criteria established in the local government code and
the approval by a majority of the votes cast in a plebiscite in the political units directly
affected. Under the Local Government Code (R.A. No. 7160) passed in 1991, the criteria of
income, population and land area are specified as verifiable indicators of viability and
capacity to provide services.24 The division or merger of existing units must comply with the
same requirements (since a new local government unit will come into being), provided that a
division shall not reduce the income, population, or land area of the unit affected to less than
the minimum requirement prescribed in the Code.25

A pronounced distinction between Article VI, Section 5 and, Article X, Section 10 is on the
requirement of a plebiscite. The Constitution and the Local Government Code expressly
require a plebiscite to carry out any creation, division, merger, abolition or alteration of
boundary of a local government unit.26 In contrast, no plebiscite requirement exists under the
apportionment or reapportionment provision. In Tobias v. Abalos,27 a case that arose from
the division of the congressional district formerly covering San Juan and Mandaluyong into
separate districts, we confirmed this distinction and the fact that no plebiscite is needed in a
legislative reapportionment. The plebiscite issue came up because one was ordered and
held for Mandaluyong in the course of its conversion into a highly urbanized city, while none
was held for San Juan. In explaining why this happened, the Court ruled that no plebiscite
was necessary for San Juan because the objective of the plebiscite was the conversion of
Mandaluyong into a highly urbanized city as required by Article X, Section 10 the Local
Government Code; the creation of a new legislative district only followed as a consequence.
In other words, the apportionment alone and by itself did not call for a plebiscite, so that none
was needed for San Juan where only a reapportionment took place.

The need for a plebiscite under Article X, Section 10 and the lack of requirement for one
under Article VI, Section 5 can best be appreciated by a consideration of the historical roots
of these two provisions, the nature of the concepts they embody as heretofore discussed,
and their areas of application.

A Bit of History.

In Macias v. COMELEC,28 we first jurisprudentially acknowledged the American roots of our

apportionment provision, noting its roots from the Fourteenth Amendment29 of the U.S.
Constitution and from the constitutions of some American states. The Philippine Organic Act
of 1902 created the Philippine Assembly,30 the body that acted as the lower house of the
bicameral legislature under the Americans, with the Philippine Commission acting as the
upper house. While the members of the Philippine Commission were appointed by the U.S.
President with the conformity of the U.S. Senate, the members of the Philippine Assembly
were elected by representative districts previously delineated under the Philippine Organic
Act of 1902 pursuant to the mandate to apportion the seats of the Philippine Assembly
among the provinces as nearly as practicable according to population. Thus, legislative
apportionment first started in our country.

The Jones Law or the Philippine Autonomy Act of 1916 maintained the apportionment
provision, dividing the country into 12 senate districts and 90 representative districts electing
one delegate each to the House of Representatives. Section 16 of the Act specifically vested
the Philippine Legislature with the authority to redistrict the Philippine Islands.

Under the 1935 Constitution, Article VI, Section 5 retained the concept of legislative
apportionment together with "district" as the basic unit of apportionment; the concern was
"equality of representation . . . as an essential feature of republican institutions" as
expressed in the leading case of Macias v. COMELEC.31 The case ruled that inequality of
representation is a justiciable, not a political issue, which ruling was reiterated in Montejo v.
COMELEC.32Notably, no issue regarding the holding of a plebiscite ever came up in these
cases and the others that followed, as no plebiscite was required.

Article VIII, Section 2 of the 1973 Constitution retained the concept of equal representation
"in accordance with the number of their respective inhabitants and on the basis of a uniform
and progressive ratio" with each district being, as far as practicable, contiguous, compact
and adjacent territory. This formulation was essentially carried over to the 1987 Constitution,
distinguished only from the previous one by the presence of party-list representatives. In
neither Constitution was a plebiscite required.

The need for a plebiscite in the creation, division, merger, or abolition of local government
units was not constitutionally enshrined until the 1973 Constitution. However, as early as
1959, R.A. No. 226433 required, in the creation of barrios by Provincial Boards, that the
creation and definition of boundaries be "upon petition of a majority of the voters in the areas
affected." In 1961, the Charter of the City of Caloocan (R.A. No. 3278) carried this further by
requiring that the "Act shall take effect after a majority of voters of the Municipality of
Caloocan vote in favor of the conversion of their municipality into a city in a plebiscite." This
was followed up to 1972 by other legislative enactments requiring a plebiscite as a condition
for the creation and conversion of local government units as well as the transfer of sitios from
one legislative unit to another.34 In 1973, the plebiscite requirement was accorded
constitutional status.

Under these separate historical tracks, it can be seen that the holding of a plebiscite was
never a requirement in legislative apportionment or reapportionment. After it became
constitutionally entrenched, a plebiscite was also always identified with the creation, division,
merger, abolition and alteration of boundaries of local government units, never with the
concept of legislative apportionment.

Nature and Areas of Application.

The legislative district that Article VI, Section 5 speaks of may, in a sense, be called a
political unit because it is the basis for the election of a member of the House of
Representatives and members of the local legislative body. It is not, however, a political
subdivision through which functions of government are carried out. It can more appropriately
be described as a representative unit that may or may not encompass the whole of a city or
a province, but unlike the latter, it is not a corporate unit. Not being a corporate unit, a district
does not act for and in behalf of the people comprising the district; it merely delineates the
areas occupied by the people who will choose a representative in their national affairs.
Unlike a province, which has a governor; a city or a municipality, which has a mayor; and
a barangay, which has a punong barangay, a district does not have its own chief executive.
The role of the congressman that it elects is to ensure that the voice of the people of the
district is heard in Congress, not to oversee the affairs of the legislative district. Not being a
corporate unit also signifies that it has no legal personality that must be created or dissolved
and has no capacity to act. Hence, there is no need for any plebiscite in the creation,
dissolution or any other similar action on a legislative district.

The local government units, on the other hand, are political and corporate units. They are the
territorial and political subdivisions of the state.35 They possess legal personality on the
authority of the Constitution and by action of the Legislature. The Constitution defines them
as entities that Congress can, by law, create, divide, abolish, merge; or whose boundaries
can be altered based on standards again established by both the Constitution and the
Legislature.36 A local government unit's corporate existence begins upon the election and
qualification of its chief executive and a majority of the members of its Sanggunian.37

As a political subdivision, a local government unit is an "instrumentality of the state in

carrying out the functions of government."38 As a corporate entity with a distinct and separate
juridical personality from the State, it exercises special functions for the sole benefit of its
constituents. It acts as "an agency of the community in the administration of local
affairs"39 and the mediums through which the people act in their corporate capacity on local
concerns.40 In light of these roles, the Constitution saw it fit to expressly secure the consent
of the people affected by the creation, division, merger, abolition or alteration of boundaries
of local government units through a plebiscite.

These considerations clearly show the distinctions between a legislative apportionment or

reapportionment and the division of a local government unit. Historically and by its intrinsic
nature, a legislative apportionment does not mean, and does not even imply, a division of a
local government unit where the apportionment takes place. Thus, the plebiscite requirement
that applies to the division of a province, city, municipality or barangay under the Local
Government Code should not apply to and be a requisite for the validity of a legislative
apportionment or reapportionment.

R.A. No. 9371 and COMELEC Res. No. 7837

R.A. No. 9371 is, on its face, purely and simply a reapportionment legislation passed in
accordance with the authority granted to Congress under Article VI, Section 5(4) of the
Constitution. Its core provision - Section 1 - provides:

SECTION 1. Legislative Districts. - The lone legislative district of the City of Cagayan
de Oro is hereby apportioned to commence in the next national elections after the
effectivity of this Act. Henceforth, barangays Bonbon, Bayabas, Kauswagan,
Carmen, Patag, Bulua, Iponan, Baikingon, San Simon, Pagatpat, Canitoan, Balulang,
Lumbia, Pagalungan, Tagpangi, Taglimao, Tuburan, Pigsag-an, Tumpagon,
Bayanga, Mambuaya, Dansulihon, Tignapoloan and Bisigan shall comprise the first
district while barangays Macabalan, Puntod, Consolacion, Camaman-an, Nazareth,
Macansandig, Indahag, Lapasan, Gusa, Cugman, FS Catanico, Tablon, Agusan,
Puerto, Bugo and Balubal and all urban barangays from Barangay 1 to Barangay 40
shall comprise the second district.

Under these wordings, no division of Cagayan de Oro City as a political and corporate entity
takes place or is mandated. Cagayan de Oro City politically remains a single unit and its
administration is not divided along territorial lines. Its territory remains completely whole and
intact; there is only the addition of another legislative district and the delineation of the city
into two districts for purposes of representation in the House of Representatives. Thus,
Article X, Section 10 of the Constitution does not come into play and no plebiscite is
necessary to validly apportion Cagayan de Oro City into two districts.

Admittedly, the legislative reapportionment carries effects beyond the creation of another
congressional district in the city by providing, as reflected in COMELEC Resolution No. 7837,
for additional Sangguniang Panglunsod seats to be voted for along the lines of the
congressional apportionment made. The effect on the Sangguniang Panglunsod, however, is
not directly traceable to R.A. No. 9371 but to another law - R.A. No. 663641 - whose Section
3 provides:
 SECTION 3. Other Cities. - The provision of any law to the contrary notwithstanding
the City of Cebu, City of Davao, and any other city with more than one representative
district shall have eight (8) councilors for each district who shall be residents thereof
to be elected by the qualified voters therein, provided that the cities of Cagayan de
Oro, Zamboanga, Bacolod, Iloilo and other cities comprising a representative district
shall have twelve (12) councilors each and all other cities shall have ten (10)
councilors each to be elected at large by the qualified voters of the said cities:
Provided, That in no case shall the present number of councilors according to their
charters be reduced.

However, neither does this law have the effect of dividing the City of Cagayan de Oro into
two political and corporate units and territories. Rather than divide the city either territorially
or as a corporate entity, the effect is merely to enhance voter representation by giving each
city voter more and greater say, both in Congress and in the Sangguniang Panglunsod.

To illustrate this effect, before the reapportionment, Cagayan de Oro had only one
congressman and 12 city council members citywide for its population of approximately
500,000.42 By having two legislative districts, each of them with one congressman, Cagayan
de Oro now effectively has two congressmen, each one representing 250,000 of the city's
population. In terms of services for city residents, this easily means better access to their
congressman since each one now services only 250,000 constituents as against the 500,000
he used to represent. The same goes true for the Sangguniang Panglungsod with its ranks
increased from 12 to 16 since each legislative district now has 8 councilors. In representation
terms, the fewer constituents represented translate to a greater voice for each individual city
resident in Congress and in the Sanggunian; each congressman and each councilor
represents both a smaller area and fewer constituents whose fewer numbers are now
concentrated in each representative. The City, for its part, now has twice the number of
congressmen speaking for it and voting in the halls of Congress. Since the total number of
congressmen in the country has not increased to the point of doubling its numbers, the
presence of two congressman (instead of one) from the same city cannot but be a
quantitative and proportional improvement in the representation of Cagayan de Oro City in
Congress.

Equality of representation.

The petitioner argues that the distribution of the legislative districts is unequal. District 1 has
only 93,719 registered voters while District 2 has 127,071. District 1 is composed mostly of
rural barangays while District 2 is composed mostly of urban barangays.43 Thus, R.A. No.
9371 violates the principle of equality of representation.

A clarification must be made. The law clearly provides that the basis for districting shall be
the number of the inhabitants of a city or a province, not the number of registered
voters therein. We settled this very same question in Herrera v. COMELEC44 when we
interpreted a provision in R.A. No. 7166 and COMELEC Resolution No. 2313 that applied to
the Province of Guimaras. We categorically ruled that the basis for districting is the number
of inhabitants of the Province of Guimaras by municipality based on the official 1995 Census
of Population as certified to by Tomas P. Africa, Administrator of the National Statistics
Office.

The petitioner, unfortunately, did not provide information about the actual population of
Cagayan de Oro City. However, we take judicial notice of the August 2007 census of the
National Statistics Office which shows that barangays comprising Cagayan de Oro's first
district have a total population of 254,644, while the second district has 299,322 residents.
Undeniably, these figures show a disparity in the population sizes of the districts.45 The
Constitution, however, does not require mathematical exactitude or rigid equality as a
standard in gauging equality of representation.46 In fact, for cities, all it asks is that "each city
with a population of at least two hundred fifty thousand shall have one representative," while
ensuring representation for every province regardless of the size of its population. To ensure
quality representation through commonality of interests and ease of access by the
representative to the constituents, all that the Constitution requires is that every legislative
district should comprise, as far as practicable, contiguous, compact, and adjacent territory.
Thus, the Constitution leaves the local government units as they are found and does not
require their division, merger or transfer to satisfy the numerical standard it imposes. Its
requirements are satisfied despite some numerical disparity if the units are contiguous,
compact and adjacent as far as practicable.

The petitioner's contention that there is a resulting inequality in the division of Cagayan de
Oro City into two districts because the barangays in the first district are mostly
rural barangays while the second district is mostly urban, is largely unsubstantiated. But
even if backed up by proper proof, we cannot question the division on the basis of the
difference in the barangays' levels of development or developmental focus as these are not
part of the constitutional standards for legislative apportionment or reapportionment. What
the components of the two districts of Cagayan de Oro would be is a matter for the
lawmakers to determine as a matter of policy. In the absence of any grave abuse of
discretion or violation of the established legal parameters, this Court cannot intrude into the
wisdom of these policies.47

WHEREFORE, we hereby DISMISS the petition for lack of merit. Costs against the
petitioner.

SO ORDERED.

G.R. No. 207264 October 22, 2013

REGINA ONGSIAKO REYES, Petitioner,

vs.
COMMISSION ON ELECTIONS and JOSEPH SOCORRO B. TAN, Respondents.

RESOLUTION

PEREZ, J.:

This is a Motion for Reconsideration of the En Bane Resolution of 25 June 2013 which stated
that: IN VIEW OF THE FOREGOING, the instant petition is DISMISSED, finding no grave
abuse of discretion on the part of the Commission on Elections. The 14 May 2013 Resolution
of the COMELEC En Banc affirming the 27 March 2013 Resolution of the COMELEC First
Division is upheld."

In her Motion for Reconsideration, petitioner summarizes her submission, thus:

"81. Stated differently, the Petitioner x x x is not asking the Honorable Court to make a
determination as regards her qualifications, she is merely asking the Honorable Court to
affirm the jurisdiction of the HRET to solely and exclusively pass upon such qualifications
and to set aside the COMELEC Resolutions for having denied Petitioner her right to due
process and for unconstitutionally adding a qualification not otherwise required by the
constitution."1(as originally underscored)

The first part of the summary refers to the issue raised in the petition, which is:

"31. Whether or not Respondent Comelec is without jurisdiction over Petitioner who is duly
proclaimed winner and who has already taken her oath of office for the position of Member of
the House of Representatives for the lone congressional district of Marinduque."2

Tied up and neatened the propositions on the COMELEC-or-HRET jurisdiction go thus:

petitioner is a duly proclaimed winner and having taken her oath of office as member of the
House of Representatives, all questions regarding her qualifications are outside the
jurisdiction of the COMELEC and are within the HRET exclusive jurisdiction.

The averred proclamation is the critical pointer to the correctness of petitioner's submission.
The crucial question is whether or not petitioner could be proclaimed on 18 May 2013.
Differently stated, was there basis for the proclamation of petitioner on 18 May 2013?

Dates and events indicate that there was no basis for the proclamation of petitioner on 18
May 2013. Without the proclamation, the petitioner's oath of office is likewise baseless, and
without a precedent oath of office, there can be no valid and effective assumption of office.

We have clearly stated in our Resolution of 5 June 2013 that:

"More importantly, we cannot disregard a fact basic in this controversy – that before the
proclamation of petitioner on 18 May 2013, the COMELEC En Banc had already finally
disposed of the issue of petitioner's lack of Filipino citizenship and residency via its
Resolution dated 14 May 2013. After 14 May 2013, there was, before the COMELEC, no
longer any pending case on petitioner's qualifications to run for the position of Member of the
House of Representatives. x x x As the point has obviously been missed by the petitioner
who continues to argue on the basis of her due proclamation, the instant motion gives us the
opportunity to highlight the undeniable fact we here repeat that the proclamation which
petitioner secured on 18 May 2013 was WITHOUT ANY BASIS.

1. Four (4) days BEFORE the 18 May 2013 proclamation, or on 14 May 2013, the
COMELEC En Banc has already denied for lack o merit the petitioner's motion to
reconsider the decision o the COMELEC First Division that CANCELLED petitioner's
certificate of candidacy.

2. On 18 May 2013, there was already a standing and unquestioned cancellation of

petitioner's certificate o candidacy which cancellation is a definite bar to her
proclamation. On 18 May 2003, that bar has not been removed, there was not even
any attempt to remove it.

3. The COMELEC Rules indicate the manner by which the impediment to

proclamation may be removed. Rule 18, Section 13 (b) provides:

"(b) In Special Actions and Special Cases a decision or resolution of the Commission
En Bane shall become final and executory after five (5) days from its promulgation
unless restrained by the Supreme Court."
 Within that five (5 days, petitioner had the opportunity to go to the Supreme Court for
a restraining order that will remove the immediate effect of the En Banc cancellation
of her certificate of candidacy. Within the five (5) days the Supreme Court may
remove the barrier to, and thus allow, the proclamation of petitioner. That did not
happen. Petitioner did not move to have it happen.

It is error to argue that the five days should pass before the petitioner is barred from
being proclaimed. Petitioner lost in the COMELEC as of respondent. Her certificate
of candidacy has been ordered cancelled. She could not be proclaimed because
there was a final finding against her by the COMELEC.3 She needed a restraining
order from the Supreme Court to avoid the final finding. After the five days when the
decision adverse to her became executory, the need for Supreme Court intervention
became even more imperative. She would have to base her recourse on the position
that the COMELEC committed grave abuse of discretion in cancelling her certificate
of candidacy and that a restraining order, which would allow her proclamation, will
have to be based on irreparable injury and demonstrated possibility of grave abuse
of discretion on the part of the COMELEC. In this case, before and after the 18 May
2013 proclamation, there was not even an attempt at the legal remedy, clearly
available to her, to permit her proclamation. What petitioner did was to "take the law
into her hands" and secure a proclamation in complete disregard of the COMELEC
En Bane decision that was final on 14 May 2013 and final and executory five days
thereafter.

4. There is a reason why no mention about notice was made in Section 13(b) of Rule
18 in the provision that the COMELEC En Bane or decision "SHALL become FINAL
AND EXECUTORY after five days from its promulgation unless restrained by the
Supreme Court." On its own the COMELEC En Bane decision, unrestrained, moves
from promulgation into becoming final and executory. This is so because in Section 5
of Rule 18 it is stated:

Section 5. Promulgation. -The promulgation of a decision or resolutions of the Commission

or a division shall be made on a date previously fixed, of which notice shall be served in
advance upon the parties or their attorneys personally or by registered mail or by telegram.

5. Apart from the presumed notice of the COMELEC En Bane decision on the very
date of its promulgation on 14 May 2013, petitioner admitted in her petition before us
that she in fact received a copy of the decision on 16 May 20 13.4 On that date, she
had absolutely no reason why she would disregard the available legal way to remove
the restraint on her proclamation, and, more than that, to in fact secure a
proclamation two days thereafter. The utter disregard of a final COMELEC En Bane
decision and of the Rule stating that her proclamation at that point MUST be on
permission by the Supreme Court is even indicative of bad faith on the part of the
petitioner.

6. The indicant is magnified by the fact that petitioner would use her tainted
proclamation as the very reason to support her argument that she could no longer be
reached by the jurisdiction of the COMELEC; and that it is the HRET that has
exclusive jurisdiction over the issue of her qualifications for office.

7. The suggestions of bad faith aside, petitioner is in error in the conclusion at which
she directs, as well as in her objective quite obvious from such conclusion. It is with
her procured proclamation that petitioner nullifies the COMELEC's decision, by
Division and then En Banc and pre-empts any Supreme Court action on the
COMELEC decision. In other words, petitioner repudiates by her proclamation all
administrative and judicial actions thereon, past and present. And by her
proclamation, she claims as acquired the congressional seat that she sought to be a
candidate for. As already shown, the reasons that lead to the impermissibility of the
objective are clear. She cannot sit as Member of the House of Representatives by
virtue of a baseless proclamation knowingly taken, with knowledge of the existing
legal impediment.

8. Petitioner, therefore, is in error when she posits that at present it is the HRET
which has exclusive jurisdiction over her qualifications as a Member of the House of
Representatives. That the HRET is the sole judge of all contests relating to the
election, returns and qualifications of the Members of the House of Representatives
is a written constitutional provision. It is, however unavailable to petitioner because
she is NOT a Member of the House at present. The COMELEC never ordered her
proclamation as the rightful winner in the election for such membership.5 Indeed, the
action for cancellation of petitioner's certificate of candidacy, the decision in which is
the indispensable determinant of the right of petitioner to proclamation, was correctly
lodged in the COMELEC, was completely and fully litigated in the COMELEC and
was finally decided by the COMELEC. On and after 14 May 2013, there was nothing
left for the COMELEC to do to decide the case. The decision sealed the proceedings
in the COMELEC regarding petitioner's ineligibility as a candidate for Representative
of Marinduque. The decision erected the bar to petitioner's proclamation. The bar
remained when no restraining order was obtained by petitioner from the Supreme
Court within five days from 14 May 2013.

9. When petitioner finally went to the Supreme Court on 10 June 2013 questioning
the COMELEC First Division ruling and the 14 May 2013 COMELEC En Bane
decision, her baseless proclamation on 18 May 2013 did not by that fact of
promulgation alone become valid and legal. A decision favorable to her by the
Supreme Court regarding the decision of the COMELEC En Bane on her certificate
of candidacy was indispensably needed, not to legalize her proclamation on 18 May
2013 but to authorize a proclamation with the Supreme Court decision as basis.

10. The recourse taken on 25 June 2013 in the form of an original and special civil
action for a writ of Certiorari through Rule 64 of the Rules of Court is circumscribed
by set rules and principles.

a) The special action before the COMELEC which was a Petition to Cancel
Certificate of Candidacy was a SUMMARY PROCEEDING or one heard
summarily. The nature of the proceedings is best indicated by the COMELEC
Rule on Special Actions, Rule 23, Section 4 of which states that the
Commission may designate any of its officials who are members of the
Philippine Bar to hear the case and to receive evidence. COMELEC Rule 17
further provides in Section 3 that when the proceedings are authorized to be
summary, in lieu of oral testimonies, the parties may, after due notice, be
required to submit their position paper together with affidavits, counter-
affidavits and other documentary evidence; x x x and that this provision shall
likewise apply to cases where the hearing and reception of evidence are
delegated by the Commission or the Division to any of its officials x x x.
 b) The special and civil action of Certiorari is defined in the Rules of Court
thus:

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, or any plain, speedy, and adequate
remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition
in the proper court, alleging the facts with certainty and praying that judgment be rendered
annulling or modifying the proceedings of such tribunal, board or officer, and granting such
incidental reliefs as law and justice may require.

The accepted definition of grave abuse of discretion is: a capricious and whimsical exercise
of judgment so patent and gross as to amount to an evasion of a positive duty or a virtual
refusal to perform a duty enjoined by law, as where the power is exercised in an arbitrary
and despotic manner because of passion or hostility.6

It is the category of the special action below providing the procedural leeway in the exercise
of the COMELEC summary jurisdiction over the case, in conjunction with the limits of the
Supreme Court's authority over the FINAL COMELEC ruling that is brought before it, that
defines the way petitioner's submission before the Court should be adjudicated. Thus further
explained, the disposition of 25 June 2013 is here repeated for affirmation:

Petitioner alleges that the COMELEC gravely abused its discretion when it took cognizance
of "newly-discovered evidence" without the same having been testified on and offered and
admitted in evidence. She assails the admission of the blog article of Eli Obligacion as
hearsay and the photocopy of the Certification from the Bureau of Immigration. She likewise
contends that there was a violation of her right to due process of law because she was not
given the opportunity to question and present controverting evidence.

Her contentions are incorrect.

It must be emphasized that the COMELEC is not bound to strictly adhere to the technical
rules of procedure in the presentation of evidence. Under Section 2 of Rule I the COMELEC
Rules of Procedure shall be liberally construed in order x x x to achieve just, expeditious and
inexpensive determination and disposition of every action and proceeding brought before the
Commission. In view of the fact that the proceedings in a petition to deny due course or to
cancel certificate of candidacy are summary in nature, then the newly discovered evidence
was properly admitted by respondent COMELEC.

Furthermore, there was no denial of due process in the case at bar as petitioner was given
every opportunity to argue her case before the COMELEC. From 10 October 2012 when
Tan's petition was filed up to 27 March 2013 when the First Division rendered its resolution,
petitioner had a period of five (5) months to adduce evidence. Unfortunately, she did not
avail herself of the opportunity given her.

Also, in administrative proceedings, procedural due process only requires that the party be
given the opportunity or right to be heard. As held in the case of Sahali v. COMELEC:

The petitioners should be reminded that due process does not necessarily mean or require a
hearing, but simply an opportunity or right to be heard. One may be heard, not solely by
verbal presentation but also, and perhaps many times more creditably and predictable than
oral argument, through pleadings. In administrative proceedings moreover, technical rules of
procedure and evidence are not strictly applied; administrative process cannot be fully
equated with due process in its strict judicial sense. Indeed, deprivation of due process
cannot be successfully invoked where a party was given the chance to be he rd on his
motion for reconsideration. (Emphasis supplied)

As to the ruling that petitioner s ineligible to run for office on the ground of citizenship, the
COMELEC First Division, discoursed as follows:

"x x x for respondent to reacquire her Filipino citizenship and become eligible for public office
the law requires that she must have accomplished the following acts: (1) take the oath of
allegiance to the Republic of the Philippines before the Consul-General of the Philippine
Consulate in the USA; and (2) make a personal and sworn renunciation of her American
citizenship before any public officer authorized to administer an oath.

In the case at bar, there s no showing that respondent complied with the aforesaid
requirements. Early on in the proceeding, respondent hammered on petitioner's lack of proof
regarding her American citizenship, contending that it is petitioner's burden to present a
case. She, however, specifically denied that she has become either a permanent resident or
naturalized citizen of the USA.

Due to petitioner's submission of newly-discovered evidence thru a Manifestation dated

February 7, 2013, however, establishing the fact that respondent is a holder of an American
passport which she continues to use until June 30 2012 petitioner was able to substantiate
his allegations. The burden now shifts to respondent to present substantial evidence to prove
otherwise. This, the respondent utterly failed to do, leading to the conclusion inevitable that
respondent falsely misrepresented in her COC that she is a natural-born Filipino citizen.
Unless and until she can establish that she had availed of the privileges of RA 9225 by
becoming a dual Filipino-American citizen, and thereafter, made a valid sworn renunciation
of her American citizenship, she remains to be an American citizen and is, therefore,
ineligible to run for and hold any elective public office in the Philippines." (Emphasis in the
original.)

Let us look into the events that led to this petition: In moving for the cancellation of
petitioner's COC, respondent submitted records of the Bureau of Immigration showing that
petitioner is a holder of a US passport, and that her status is that of a balikbayan. At this
point, the burden of proof shifted to petitioner, imposing upon her the duty to prove that she
is a natural-born Filipino citizen and has not lost the same, or that she has re-acquired such
status in accordance with the provisions of R.A. No. 9225. Aside from the bare allegation that
she is a natural-born citizen, however, petitioner submitted no proof to support such
contention. Neither did she submit any proof as to the inapplicability of R.A. No. 9225 to her.

Notably, in her Motion for Reconsideration before the COMELEC En Bane, petitioner
admitted that she is a holder of a US passport, but she averred that she is only a dual
Filipino-American citizen, thus the requirements of R.A. No. 9225 do not apply to her. Still,
attached to the said motion is an Affidavit of Renunciation of Foreign Citizenship dated 24
September 2012. Petitioner explains that she attached said Affidavit if only to show her
desire and zeal to serve the people and to comply with rules, even as a superfluity. We
cannot, however, subscribe to petitioner's explanation. If petitioner executed said Affidavit if
only to comply with the rules, then it is an admission that R.A. No. 9225 applies to her.
Petitioner cannot claim that she executed it to address the observations by the COMELEC
as the assailed Resolutions were promulgated only in 2013, while the Affidavit was executed
in September 2012. 1âw phi 1
Moreover, in the present petition, petitioner added a footnote to her oath of office as
Provincial Administrator, to this effect: This does not mean that Petitioner did not, prior to her
taking her oath of office as Provincial Administrator, take her oath of allegiance for purposes
of re-acquisition of natural-born Filipino status, which she reserves to present in the proper
proceeding. The reference to the taking of oath of office is in order to make reference to what
is already part of the records and evidence in the present case and to avoid injecting into the
records evidence on matters of fact that was not previously passed upon by Respondent
COMELEC. This statement raises a lot of questions -Did petitioner execute an oath of
allegiance for re-acquisition of natural-born Filipino status? If she did, why did she not
present it at the earliest opportunity before the COMELEC? And is this an admission that she
has indeed lost her natural-born Filipino status?

To cover-up her apparent lack of an oath of allegiance as required by R.A. No. 9225,
petitioner contends that, since she took her oath of allegiance in connection with her
appointment as Provincial Administrator of Marinduque, she is deemed to have reacquired
her status as a natural-born Filipino citizen.

This contention is misplaced. For one, this issue is being presented for the first time before
this Court, as it was never raised before the COMELEC. For another, said oath of allegiance
cannot be considered compliance with Sec. 3 of R.A. No. 9225 as certain requirements have
to be met as prescribed by Memorandum Circular No. AFF-04-01, otherwise known as the
Rules Governing Philippine Citizenship under R.A. No. 9225 and Memorandum Circular No.
AFF-05-002 (Revised Rules) and Administrative Order No. 91, Series of 2004 issued by the
Bureau of Immigration. Thus, petitioner s oath of office as Provincial Administrator cannot be
considered as the oath of allegiance in compliance with R.A. No. 9225.

These circumstances, taken together, show that a doubt was clearly cast on petitioner s
citizenship. Petitioner, however, failed to clear such doubt.7

11. It may need pointing out that there is no conflict between the COMELEC and the
HRET insofar as the petitioner s being a Representative of Marinduque is concerned.
The COMELEC covers the matter of petitioner s certificate of candidacy, and its due
course or its cancellation, which are the pivotal conclusions that determines who can
be legally proclaimed. The matter can go to the Supreme Court but not as a
continuation of the proceedings in the COMELEC, which has in fact ended, but on an
original action before the Court grounded on more than mere error of judgment but
on error of jurisdiction for grave abuse of discretion. At and after the COMELEC En
Bane decision, there is no longer any certificate cancellation matter than can go to
the HRET. In that sense, the HRET s constitutional authority opens, over the
qualification of its MEMBER, who becomes so only upon a duly and legally based
proclamation, the first and unavoidable step towards such membership. The HRET
jurisdiction over the qualification of the Member of the House of Representatives is
original and exclusive, and as such, proceeds de novo unhampered by the
proceedings in the COMELEC which, as just stated has been terminated. The HRET
proceedings is a regular, not summary, proceeding. It will determine who should be
the Member of the House. It must be made clear though, at the risk of repetitiveness,
that no hiatus occurs in the representation of Marinduque in the House because
there is such a representative who shall sit as the HRET proceedings are had till
termination. Such representative is the duly proclaimed winner resulting from the
terminated case of cancellation of certificate of candidacy of petitioner. The petitioner
is not, cannot, be that representative. And this, all in all, is the crux of the dispute
between the parties: who shall sit in the House in representation of Marinduque,
while there is yet no HRET decision on the qualifications of the Member.
 12. As finale, and as explained in the discussion just done, no unwarranted haste
can be attributed, as the dissent does so, to the resolution of this petition
promulgated on 25 June 2013. It was not done to prevent the exercise by the HRET
of its constitutional duty. Quite the contrary, the speedy resolution of the petition was
done to pave the way for the unimpeded performance by the HRET of its
constitutional role. The petitioner can very well invoke the authority of the HRET, but
not as a sitting member of the House of Representatives.8

The inhibition of this ponente was moved for. The reason for the denial of the motion was
contained in a letter to the members of the Court on the understanding that the matter was
internal to the Court. The ponente now seeks the Courts approval to have the explanation
published as it is now appended to this Resolution.

The motion to withdraw petition filed AFTER the Court has acted thereon, is noted. It may
well be in order to remind petitioner that jurisdiction, once acquired, is not lost upon the
instance of the parties, but continues until the case is terminated.9 When petitioner filed her
Petition for Certiorari jurisdiction vested in the Court and, in fact, the Court exercised such
jurisdiction when it acted on the petition. Such jurisdiction cannot be lost by the unilateral
withdrawal of the petition by petitioner.

More importantly, the Resolution dated 25 June 2013, being a valid court issuance,
undoubtedly has legal consequences. Petitioner cannot, by the mere expediency of
withdrawing the petition, negative and nullify the Court's Resolution and its legal effects. At
this point, we counsel petitioner against trifling with court processes. Having sought the
jurisdiction of the Supreme Court, petitioner cannot withdraw her petition to erase the ruling
adverse to her interests. Obviously, she cannot, as she designed below, subject to her
predilections the supremacy of the law.

WHEREFORE, The Motion for Reconsideration is DENIED. The dismissal of the petition is
affirmed. Entry of Judgment is ordered.

SO ORDERED.

EN BANC

BARANGAY ASSOCIATION FOR G.R. No. 179271

NATIONAL ADVANCEMENT
AND TRANSPARENCY (BANAT),
Petitioner,

- versus -

COMMISSION ON ELECTIONS
(sitting as the National Board of
Canvassers),
Respondent.
ARTS BUSINESS AND SCIENCE
PROFESSIONALS,
Intervenor.

AANGAT TAYO,
Intervenor.

COALITION OF ASSOCIATIONS
OF SENIOR CITIZENS IN THE
PHILIPPINES, INC. (SENIOR
CITIZENS),
Intervenor.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - x
BAYAN MUNA, ADVOCACY FOR G.R. No. 179295
TEACHER EMPOWERMENT
THROUGH ACTION, COOPERATION Present:
AND HARMONY TOWARDS
EDUCATIONAL REFORMS, INC., PUNO, C.J.,
and ABONO, QUISUMBING,
Petitioners, YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
- versus - CARPIO MORALES,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA, and
BERSAMIN, JJ.

COMMISSION ON ELECTIONS, Promulgated:

Respondent.
_______________________

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

DECISION

CARPIO, J.:

The Case
Petitioner in G.R. No. 179271 Barangay Association for National Advancement and
Transparency (BANAT) in a petition for certiorari and mandamus,[1] assails the
Resolution[2] promulgated on 3 August 2007 by the Commission on Elections
(COMELEC) in NBC No. 07-041 (PL). The COMELECs resolution in NBC No. 07-041
(PL) approved the recommendation of Atty. Alioden D. Dalaig, Head of the National
Board of Canvassers (NBC) Legal Group, to deny the petition of BANAT for being
moot. BANAT filed before the COMELEC En Banc, acting as NBC, a Petition to
Proclaim the Full Number of Party-List Representatives Provided by the Constitution.

The following are intervenors in G.R. No. 179271: Arts Business and Science
Professionals (ABS), Aangat Tayo (AT), and Coalition of Associations of Senior
Citizens in the Philippines, Inc. (Senior Citizens).

Petitioners in G.R. No. 179295 Bayan Muna, Abono, and Advocacy for Teacher
Empowerment Through Action, Cooperation and Harmony Towards Educational
Reforms (A Teacher) in a petition for certiorari with mandamus and
prohibition,[3] assails NBC Resolution No. 07-60[4] promulgated on 9 July 2007. NBC
No. 07-60 made a partial proclamation of parties, organizations and coalitions that
obtained at least two percent of the total votes cast under the Party-List System. The
COMELEC announced that, upon completion of the canvass of the party-list results,
it would determine the total number of seats of each winning party, organization, or
coalition in accordance with Veterans Federation Party v. COMELEC[5] (Veterans).

Estrella DL Santos, in her capacity as President and First Nominee of the Veterans
Freedom Party, filed a motion to intervene in both G.R. Nos. 179271 and 179295.

The Facts
The 14 May 2007 elections included the elections for the party-list
representatives. The COMELEC counted 15,950,900 votes cast for 93 parties under
the Party-List System.[6]
On 27 June 2002, BANAT filed a Petition to Proclaim the Full Number of Party-List
Representatives Provided by the Constitution, docketed as NBC No. 07-041 (PL)
before the NBC. BANAT filed its petition because [t]he Chairman and the Members
of the [COMELEC] have recently been quoted in the national papers that the
[COMELEC] is duty bound to and shall implement the Veterans ruling, that is, would
apply the Panganiban formula in allocating party-list seats.[7] There were no
intervenors in BANATs petition before the NBC. BANAT filed a memorandum on 19
July 2007.
On 9 July 2007, the COMELEC, sitting as the NBC, promulgated NBC Resolution No.
07-60. NBC Resolution No. 07-60 proclaimed thirteen (13) parties as winners in the
party-list elections, namely: Buhay Hayaan Yumabong (BUHAY), Bayan Muna,
Citizens Battle Against Corruption (CIBAC), Gabrielas Women Party (Gabriela),
Association of Philippine Electric Cooperatives (APEC), A Teacher, Akbayan! Citizens
Action Party (AKBAYAN), Alagad, Luzon Farmers Party (BUTIL), Cooperative-Natco
Network Party (COOP-NATCCO), Anak Pawis, Alliance of Rural Concerns (ARC), and
Abono. We quote NBC Resolution No. 07-60 in its entirety below:

WHEREAS, the Commission on Elections sitting en banc as National Board of

Canvassers, thru its Sub-Committee for Party-List, as of 03 July 2007, had officially
canvassed, in open and public proceedings, a total of fifteen million two hundred
eighty three thousand six hundred fifty-nine (15,283,659) votes under the
Party-List System of Representation, in connection with the National and Local
Elections conducted last 14 May 2007;
WHEREAS, the study conducted by the Legal and Tabulation Groups of the National
Board of Canvassers reveals that the projected/maximum total party-list votes
cannot go any higher than sixteen million seven hundred twenty three thousand
one hundred twenty-one (16,723,121) votes given the following statistical data:

Projected/Maximum Party-List Votes for May 2007 Elections

i. Total party-list votes already 15,283,659

canvassed/tabulated
ii. Total party-list votes remaining uncanvassed/
untabulated (i.e. canvass deferred) 1,337,032
iii. Maximum party-list votes (based on 100%
outcome) from areas not yet submitted for
canvass (Bogo, Cebu; Bais City; Pantar, Lanao del
Norte; and Pagalungan, Maguindanao) 102,430
Maximum Total Party-List Votes 16,723,121

WHEREAS, Section 11 of Republic Act No. 7941 (Party-List System Act) provides in
part:

The parties, organizations, and coalitions receiving at least two percent (2%) of the
total votes cast for the party-list system shall be entitled to one seat each: provided,
that those garnering more than two percent (2%) of the votes shall be entitled to
additional seats in proportion to their total number of votes: provided, finally, that
each party, organization, or coalition shall be entitled to not more than three (3)
seats.
WHEREAS, for the 2007 Elections, based on the above projected total of party-list
votes, the presumptive two percent (2%) threshold can be pegged at three
hundred thirty four thousand four hundred sixty-two (334,462) votes;
WHEREAS, the Supreme Court, in Citizens Battle Against Corruption (CIBAC) versus
COMELEC, reiterated its ruling in Veterans Federation Party versus
COMELEC adopting a formula for the additional seats of each party, organization or
coalition receving more than the required two percent (2%) votes, stating that the
same shall be determined only after all party-list ballots have been completely
canvassed;
WHEREAS, the parties, organizations, and coalitions that have thus far garnered at
least three hundred thirty four thousand four hundred sixty-two
(334,462) votes are as follows:

RANK PARTY/ORGANIZATION/ VOTES

COALITION RECEIVED
1 BUHAY 1,163,218
2 BAYAN MUNA 972,730
3 CIBAC 760,260
4 GABRIELA 610,451
5 APEC 538,971
6 A TEACHER 476,036
7 AKBAYAN 470,872
8 ALAGAD 423,076
9 BUTIL 405,052
10 COOP-NATCO 390,029
11 BATAS 386,361
12 ANAK PAWIS 376,036
13 ARC 338,194
14 ABONO 337,046

WHEREAS, except for Bagong Alyansang Tagapagtaguyod ng Adhikaing

Sambayanan (BATAS), against which an URGENT PETITION FOR
CANCELLATION/REMOVAL OF REGISTRATION AND DISQUALIFICATION OF PARTY-
LIST NOMINEE (With Prayer for the Issuance of Restraining Order) has been filed
before the Commission, docketed as SPC No. 07-250, all the parties, organizations
and coalitions included in the aforementioned list are therefore entitled to at least
one seat under the party-list system of representation in the meantime.

NOW, THEREFORE, by virtue of the powers vested in it by the Constitution, the

Omnibus Election Code, Executive Order No. 144, Republic Act Nos. 6646, 7166,
7941, and other election laws, the Commission on Elections, sitting en banc as the
National Board of Canvassers, hereby RESOLVES to PARTIALLY PROCLAIM, subject
to certain conditions set forth below, the following parties, organizations and
coalitions participating under the Party-List System:

1 Buhay Hayaan Yumabong BUHAY

 2 Bayan Muna BAYAN MUNA
3 Citizens Battle Against Corruption CIBAC
4 Gabriela Womens Party GABRIELA
5 Association of Philippine Electric APEC
Cooperatives
6 Advocacy for Teacher Empowerment A TEACHER
Through Action, Cooperation and
Harmony Towards Educational Reforms,
Inc.
7 Akbayan! Citizens Action Party AKBAYAN
8 Alagad ALAGAD
9 Luzon Farmers Party BUTIL
10 Cooperative-Natco Network Party COOP-NATCCO
11 Anak Pawis ANAKPAWIS
12 Alliance of Rural Concerns ARC
13 Abono ABONO

This is without prejudice to the proclamation of other parties, organizations, or

coalitions which may later on be established to have obtained at least two percent
(2%) of the total actual votes cast under the Party-List System.

The total number of seats of each winning party, organization or coalition shall be
determined pursuant to Veterans Federation Party versus COMELEC formula upon
completion of the canvass of the party-list results.

The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan

(BATAS) is hereby deferred until final resolution of SPC No. 07-250, in order not to
render the proceedings therein moot and academic.

Finally, all proclamation of the nominees of concerned parties, organizations and

coalitions with pending disputes shall likewise be held in abeyance until final
resolution of their respective cases.

Let the Clerk of the Commission implement this Resolution, furnishing a copy
thereof to the Speaker of the House of Representatives of the Philippines.

SO ORDERED.[8] (Emphasis in the original)

Pursuant to NBC Resolution No. 07-60, the COMELEC, acting as NBC, promulgated
NBC Resolution No. 07-72, which declared the additional seats allocated to the
appropriate parties. We quote from the COMELECs interpretation of
the Veterans formula as found in NBC Resolution No. 07-72:

WHEREAS, on July 9, 2007, the Commission on Elections sitting en banc as the

National Board of Canvassers proclaimed thirteen (13) qualified parties,
organization[s] and coalitions based on the presumptive two percent (2%)
threshold of 334,462 votes from the projected maximum total number of party-list
votes of 16,723,121, and were thus given one (1) guaranteed party-list seat each;
WHEREAS, per Report of the Tabulation Group and Supervisory Committee of the
National Board of Canvassers, the projected maximum total party-list votes, as of
July 11, 2007, based on the votes actually canvassed, votes canvassed but not
included in Report No. 29, votes received but uncanvassed, and maximum votes
expected for Pantar, Lanao del Norte, is 16,261,369; and that the projected
maximum total votes for the thirteen (13) qualified parties, organizations and
coalition[s] are as follows:

Party-List Projected total number of

votes
1 BUHAY 1,178,747
2 BAYAN MUNA 977,476
3 CIBAC 755,964
4 GABRIELA 621,718
5 APEC 622,489
6 A TEACHER 492,369
7 AKBAYAN 462,674
8 ALAGAD 423,190
9 BUTIL 409,298
10 COOP-NATCO 412,920
11 ANAKPAWIS 370,165
12 ARC 375,846
13 ABONO 340,151

WHEREAS, based on the above Report, Buhay Hayaan Yumabong (Buhay) obtained
the highest number of votes among the thirteen (13) qualified parties, organizations
and coalitions, making it the first party in accordance with Veterans Federation Party
versus COMELEC, reiterated in Citizens Battle Against Corruption (CIBAC) versus
COMELEC;
WHEREAS, qualified parties, organizations and coalitions participating under the
party-list system of representation that have obtained one guaranteed (1) seat may
be entitled to an additional seat or seats based on the formula prescribed by the
Supreme Court in Veterans;
WHEREAS, in determining the additional seats for the first party, the correct
formula as expressed in Veterans, is:

Number of votes of first party Proportion of votes of first

- - - - - - - - - - - - - - - - - - - - - = party relative to total votes for
Total votes for party-list system party-list system

wherein the proportion of votes received by the first party (without rounding off)
shall entitle it to additional seats:

Proportion of votes received Additional seats

by the first party
Equal to or at least 6% Two (2) additional seats
Equal to or greater than 4% but less than One (1) additional seat
6%
Less than 4% No additional seat

WHEREAS, applying the above formula, Buhay obtained the following percentage:

1,178,747
- - - - - - - - = 0.07248 or 7.2%
16,261,369

which entitles it to two (2) additional seats.

WHEREAS, in determining the additional seats for the other qualified parties,
organizations and coalitions, the correct formula as expressed in Veterans and
reiterated in CIBAC is, as follows:

No. of votes of
concerned party No. of additional
Additional seats for = ------------------- x seats allocated to
a concerned party No. of votes of first party
first party

WHEREAS, applying the above formula, the results are as follows:

Party List Percentage Additional Seat

BAYAN MUNA 1.65 1
CIBAC 1.28 1
 GABRIELA 1.05 1
APEC 1.05 1
A TEACHER 0.83 0
AKBAYAN 0.78 0
ALAGAD 0.71 0
BUTIL 0.69 0
COOP-NATCO 0.69 0
ANAKPAWIS 0.62 0
ARC 0.63 0
ABONO 0.57 0

NOW THEREFORE, by virtue of the powers vested in it by the Constitution, Omnibus

Election Code, Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941 and
other elections laws, the Commission on Elections en banc sitting as the National
Board of Canvassers, hereby RESOLVED, as it hereby RESOLVES, to proclaim the
following parties, organizations or coalitions as entitled to additional seats, to wit:

Party List Additional Seats

BUHAY 2
BAYAN MUNA 1
CIBAC 1
GABRIELA 1
APEC 1

This is without prejudice to the proclamation of other parties, organizations or

coalitions which may later on be established to have obtained at least two per cent
(2%) of the total votes cast under the party-list system to entitle them to one (1)
guaranteed seat, or to the appropriate percentage of votes to entitle them to one (1)
additional seat.
Finally, all proclamation of the nominees of concerned parties, organizations and
coalitions with pending disputes shall likewise be held in abeyance until final
resolution of their respective cases.

Let the National Board of Canvassers Secretariat implement this Resolution,

furnishing a copy hereof to the Speaker of the House of Representatives of the
Philippines.

SO ORDERED.[9]
Acting on BANATs petition, the NBC promulgated NBC Resolution No. 07-88 on 3
August 2007, which reads as follows:

This pertains to the Petition to Proclaim the Full Number of Party-List

Representatives Provided by the Constitution filed by the Barangay Association for
National Advancement and Transparency (BANAT).

Acting on the foregoing Petition of the Barangay Association for National

Advancement and Transparency (BANAT) party-list, Atty. Alioden D. Dalaig, Head,
National Board of Canvassers Legal Group submitted his comments/observations
and recommendation thereon [NBC 07-041 (PL)], which reads:

COMMENTS / OBSERVATIONS:

Petitioner Barangay Association for National Advancement and Transparency

(BANAT), in its Petition to Proclaim the Full Number of Party-List Representatives
Provided by the Constitution prayed for the following reliefs, to wit:

1. That the full number -- twenty percent (20%) -- of Party-List representatives as

mandated by Section 5, Article VI of the Constitution shall be proclaimed.

2. Paragraph (b), Section 11 of RA 7941 which prescribes the 2% threshold votes,

should be harmonized with Section 5, Article VI of the Constitution and with Section
12 of the same RA 7941 in that it should be applicable only to the first party-list
representative seats to be allotted on the basis of their initial/first ranking.

3. The 3-seat limit prescribed by RA 7941 shall be applied; and

4. Initially, all party-list groups shall be given the number of seats corresponding to
every 2% of the votes they received and the additional seats shall be allocated in
accordance with Section 12 of RA 7941, that is, in proportion to the percentage of
votes obtained by each party-list group in relation to the total nationwide votes cast
in the party-list election, after deducting the corresponding votes of those which
were allotted seats under the 2% threshold rule. In fine, the formula/procedure
prescribed in the ALLOCATION OF PARTY-LIST SEATS, ANNEX A of COMELEC
RESOLUTION 2847 dated 25 June 1996, shall be used for [the] purpose of
determining how many seats shall be proclaimed, which party-list groups are
entitled to representative seats and how many of their nominees shall seat [sic].

5. In the alternative, to declare as unconstitutional Section 11 of Republic Act No.

7941 and that the procedure in allocating seats for party-list representative
prescribed by Section 12 of RA 7941 shall be followed.

RECOMMENDATION:
The petition of BANAT is now moot and academic.

The Commission En Banc in NBC Resolution No. 07-60 promulgated July 9, 2007 re In
the Matter of the Canvass of Votes and Partial Proclamation of the Parties,
Organizations and Coalitions Participating Under the Party-List System During the
May 14, 2007 National and Local Elections resolved among others that the total
number of seats of each winning party, organization or coalition shall be determined
pursuant to the Veterans Federation Party versus COMELEC formula upon completion
of the canvass of the party-list results.
WHEREFORE, premises considered, the National Board of Canvassers RESOLVED, as
it hereby RESOLVES, to approve and adopt the recommendation of Atty. Alioden D.
Dalaig, Head, NBC Legal Group, to DENY the herein petition of BANAT for being
moot and academic.
Let the Supervisory Committee implement this resolution.
SO ORDERED.[10]

BANAT filed a petition for certiorari and mandamus assailing the ruling in NBC
Resolution No. 07-88. BANAT did not file a motion for reconsideration of NBC
Resolution No. 07-88.

On 9 July 2007, Bayan Muna, Abono, and A Teacher asked the COMELEC, acting as
NBC, to reconsider its decision to use the Veterans formula as stated in its NBC
Resolution No. 07-60 because the Veterans formula is violative of the Constitution
and of Republic Act No. 7941 (R.A. No. 7941). On the same day, the COMELEC denied
reconsideration during the proceedings of the NBC.[11]

Aside from the thirteen party-list organizations proclaimed on 9 July 2007, the
COMELEC proclaimed three other party-list organizations as qualified parties
entitled to one guaranteed seat under the Party-List System: Agricultural Sector
Alliance of the Philippines, Inc. (AGAP),[12] Anak Mindanao (AMIN),[13] and An
Waray.[14] Per the certification[15] by COMELEC, the following party-list
organizations have been proclaimed as of 19 May 2008:

Party-List No. of Seat(s)

1.1 Buhay 3
1.2 Bayan Muna 2
1.3 CIBAC 2
1.4 Gabriela 2
1.5 APEC 2
1.6 A Teacher 1
 1.7 Akbayan 1
1.8 Alagad 1
1.9 Butil 1
1.10 Coop-Natco [sic] 1
1.11 Anak Pawis 1
1.12 ARC 1
1.13 Abono 1
1.14 AGAP 1
1.15 AMIN 1

The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan

(BATAS), against which an Urgent Petition for Cancellation/Removal of Registration
and Disqualification of Party-list Nominee (with Prayer for the Issuance of
Restraining Order) has been filed before the COMELEC, was deferred pending final
resolution of SPC No. 07-250.

Issues

BANAT brought the following issues before this Court:

1. Is the twenty percent allocation for party-list representatives provided in Section

5(2), Article VI of the Constitution mandatory or is it merely a ceiling?

2. Is the three-seat limit provided in Section 11(b) of RA 7941 constitutional?

3. Is the two percent threshold and qualifier votes prescribed by the same Section
11(b) of RA 7941 constitutional?

4. How shall the party-list representatives be allocated?[16]

Bayan Muna, A Teacher, and Abono, on the other hand, raised the following issues in
their petition:

I. Respondent Commission on Elections, acting as National Board of Canvassers,

committed grave abuse of discretion amounting to lack or excess of jurisdiction
when it promulgated NBC Resolution No. 07-60 to implement the First-Party Rule in
the allocation of seats to qualified party-list organizations as said rule:

A. Violates the constitutional principle of proportional representation.

B. Violates the provisions of RA 7941 particularly:

1. The 2-4-6 Formula used by the First Party Rule in allocating additional seats for
the First Party violates the principle of proportional representation under RA 7941.

2. The use of two formulas in the allocation of additional seats, one for the First
Party and another for the qualifying parties, violates Section 11(b) of RA 7941.

3. The proportional relationships under the First Party Rule are different from those
required under RA 7941;

C. Violates the Four Inviolable Parameters of the Philippine party-list system as

provided for under the same case of Veterans Federation Party, et al. v. COMELEC.

II. Presuming that the Commission on Elections did not commit grave abuse of
discretion amounting to lack or excess of jurisdiction when it implemented the
First-Party Rule in the allocation of seats to qualified party-list organizations, the
same being merely in consonance with the ruling in Veterans Federations Party, et al.
v. COMELEC, the instant Petition is a justiciable case as the issues involved herein
are constitutional in nature, involving the correct interpretation and
implementation of RA 7941, and are of transcendental importance to our nation.[17]

Considering the allegations in the petitions and the comments of the parties in these
cases, we defined the following issues in our advisory for the oral arguments set on
22 April 2008:

1. Is the twenty percent allocation for party-list representatives in Section 5(2),

Article VI of the Constitution mandatory or merely a ceiling?

2. Is the three-seat limit in Section 11(b) of RA 7941 constitutional?

3. Is the two percent threshold prescribed in Section 11(b) of RA 7941 to qualify for
one seat constitutional?

4. How shall the party-list representative seats be allocated?

5. Does the Constitution prohibit the major political parties from participating in the
party-list elections? If not, can the major political parties be barred from
participating in the party-list elections?[18]

The Ruling of the Court

The petitions have partial merit. We maintain that a Philippine-style party-list

election has at least four inviolable parameters as clearly stated in Veterans. For
easy reference, these are:
First, the twenty percent allocation the combined number of all party-list
congressmen shall not exceed twenty percent of the total membership of the House
of Representatives, including those elected under the party list;

Second, the two percent threshold only those parties garnering a minimum of two
percent of the total valid votes cast for the party-list system are qualified to have a
seat in the House of Representatives;

Third, the three-seat limit each qualified party, regardless of the number of votes it
actually obtained, is entitled to a maximum of three seats; that is, one qualifying and
two additional seats;

Fourth, proportional representation the additional seats which a qualified party is

entitled to shall be computed in proportion to their total number of votes.[19]

However, because the formula in Veterans has flaws in its mathematical

interpretation of the term proportional representation, this Court is compelled to
revisit the formula for the allocation of additional seats to party-list organizations.

Number of Party-List Representatives:

The Formula Mandated by the Constitution

Section 5, Article VI of the Constitution provides:

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

(2) The party-list representatives shall constitute twenty per centum of the total
number of representatives including those under the party-list. For three
consecutive terms after the ratification of this Constitution, one-half of the seats
allocated to party-list representatives shall be filled, as provided by law, by selection
or election from the labor, peasant, urban poor, indigenous cultural communities,
women, youth, and such other sectors as may be provided by law, except the
religious sector.

The first paragraph of Section 11 of R.A. No. 7941 reads:

Section 11. Number of Party-List Representatives. The party-list representatives shall
constitute twenty per centum (20%) of the total number of the members of the
House of Representatives including those under the party-list.
xxx

Section 5(1), Article VI of the Constitution states that the House of Representatives
shall be composed of not more than two hundred and fifty members, unless
otherwise fixed by law. The House of Representatives shall be composed of district
representatives and party-list representatives. The Constitution allows the
legislature to modify the number of the members of the House of Representatives.
Section 5(2), Article VI of the Constitution, on the other hand, states the ratio of
party-list representatives to the total number of representatives. We compute the
number of seats available to party-list representatives from the number of
legislative districts. On this point, we do not deviate from the first formula
in Veterans, thus:

Number of seats Number of seats available to

available to legislative x .20 = party-list representatives
districts
.80

This formula allows for the corresponding increase in the number of seats available
for party-list representatives whenever a legislative district is created by law. Since
the 14th Congress of the Philippines has 220 district representatives, there are 55
seats available to party-list representatives.

220 x .20 = 55
.80

After prescribing the ratio of the number of party-list representatives to the total
number of representatives, the Constitution left the manner of allocating the
seats available to party-list representatives to the wisdom of the legislature.

Allocation of Seats for Party-List Representatives:

The Statutory Limits Presented by the Two Percent Threshold
and the Three-Seat Cap

All parties agree on the formula to determine the maximum number of seats
reserved under the Party-List System, as well as on the formula to determine the
guaranteed seats to party-list candidates garnering at least two-percent of the total
party-list votes. However, there are numerous interpretations of the provisions of
R.A. No. 7941 on the allocation of additional seats under the Party-List
System. Veterans produced the First Party Rule,[20] and Justice Vicente V. Mendozas
dissent in Veterans presented Germanys Niemeyer formula[21] as an alternative.

The Constitution left to Congress the determination of the manner of allocating the
seats for party-list representatives. Congress enacted R.A. No. 7941, paragraphs (a)
and (b) of Section 11 and Section 12 of which provide:

Section 11. Number of Party-List Representatives. x x x

In determining the allocation of seats for the second vote,[22] the following
procedure shall be observed:

(a) The parties, organizations, and coalitions shall be ranked from the highest to the
lowest based on the number of votes they garnered during the elections.

(b) The parties, organizations, and coalitions receiving at least two percent (2%) of
the total votes cast for the party-list system shall be entitled to one seat
each: Provided, That those garnering more than two percent (2%) of the votes
shall be entitled to additional seats in proportion to their total number of
votes: Provided, finally, That each party, organization, or coalition shall be entitled
to not more than three (3) seats.

Section 12. Procedure in Allocating Seats for Party-List Representatives. The

COMELEC shall tally all the votes for the parties, organizations, or coalitions on a
nationwide basis, rank them according to the number of votes received and allocate
party-list representatives proportionately according to the percentage of votes
obtained by each party, organization, or coalition as against the total nationwide
votes cast for the party-list system. (Emphasis supplied)

In G.R. No. 179271, BANAT presents two interpretations through three formulas to
allocate party-list representative seats.

The first interpretation allegedly harmonizes the provisions of Section 11(b) on the
2% requirement with Section 12 of R.A. No. 7941. BANAT described this procedure
as follows:

(a) The party-list representatives shall constitute twenty percent (20%) of the total
Members of the House of Representatives including those from the party-list groups
as prescribed by Section 5, Article VI of the Constitution, Section 11 (1st par.) of RA
7941 and Comelec Resolution No. 2847 dated 25 June 1996. Since there are 220
District Representatives in the 14th Congress, there shall be 55 Party-List
Representatives. All seats shall have to be proclaimed.
(b) All party-list groups shall initially be allotted one (1) seat for every two per
centum (2%) of the total party-list votes they obtained; provided, that no party-list
groups shall have more than three (3) seats (Section 11, RA 7941).

(c) The remaining seats shall, after deducting the seats obtained by the party-list
groups under the immediately preceding paragraph and after deducting from their
total the votes corresponding to those seats, the remaining seats shall be allotted
proportionately to all the party-list groups which have not secured the maximum
three (3) seats under the 2% threshold rule, in accordance with Section 12 of RA
7941.[23]

Forty-four (44) party-list seats will be awarded under BANATs first interpretation.

The second interpretation presented by BANAT assumes that the 2% vote

requirement is declared unconstitutional, and apportions the seats for party-list
representatives by following Section 12 of R.A. No. 7941. BANAT states that the
COMELEC:

(a) shall tally all the votes for the parties, organizations, or coalitions on a
nationwide basis;
(b) rank them according to the number of votes received; and,
(c) allocate party-list representatives proportionately according to the percentage of
votes obtained by each party, organization or coalition as against the total
nationwide votes cast for the party-list system.[24]

BANAT used two formulas to obtain the same results: one is based on the
proportional percentage of the votes received by each party as against the total
nationwide party-list votes, and the other is by making the votes of a party-list with
a median percentage of votes as the divisor in computing the allocation of
seats.[25] Thirty-four (34) party-list seats will be awarded under BANATs second
interpretation.

In G.R. No. 179295, Bayan Muna, Abono, and A Teacher criticize both the COMELECs
original 2-4-6 formula and the Veterans formula for systematically preventing all the
party-list seats from being filled up. They claim that both formulas do not factor in
the total number of seats alloted for the entire Party-List System. Bayan Muna,
Abono, and A Teacher reject the three-seat cap, but accept the 2% threshold. After
determining the qualified parties, a second percentage is generated by dividing the
votes of a qualified party by the total votes of all qualified parties only. The number
of seats allocated to a qualified party is computed by multiplying the total party-list
seats available with the second percentage. There will be a first round of seat
allocation, limited to using the whole integers as the equivalent of the number of
seats allocated to the concerned party-list. After all the qualified parties are given
their seats, a second round of seat allocation is conducted. The fractions, or
remainders, from the whole integers are ranked from highest to lowest and the
remaining seats on the basis of this ranking are allocated until all the seats are filled
up.[26]

We examine what R.A. No. 7941 prescribes to allocate seats for party-list
representatives.

Section 11(a) of R.A. No. 7941 prescribes the ranking of the participating parties
from the highest to the lowest based on the number of votes they garnered during
the elections.

Table 1. Ranking of the participating parties from the highest to the lowest based on
the number of votes garnered during the elections.[27]

Votes Votes
Rank Party Rank Party
Garnered Garnered
1 BUHAY 1,169,234 48 KALAHI 88,868
2 BAYAN MUNA 979,039 49 APOI 79,386
3 CIBAC 755,686 50 BP 78,541
4 GABRIELA 621,171 51 AHONBAYAN 78,424
5 APEC 619,657 52 BIGKIS 77,327
6 A TEACHER 490,379 53 PMAP 75,200
7 AKBAYAN 466,112 54 AKAPIN 74,686
8 ALAGAD 423,149 55 PBA 71,544
9 COOP- 409,883 56 GRECON 62,220
NATCCO
10 BUTIL 409,160 57 BTM 60,993
11 BATAS 385,810 58 A SMILE 58,717
12 ARC 374,288 59 NELFFI 57,872
13 ANAKPAWIS 370,261 60 AKSA 57,012
14 ABONO 339,990 61 BAGO 55,846
15 AMIN 338,185 62 BANDILA 54,751
16 AGAP 328,724 63 AHON 54,522
17 AN WARAY 321,503 64 ASAHAN MO 51,722
18 YACAP 310,889 65 AGBIAG! 50,837
19 FPJPM 300,923 66 SPI 50,478
20 UNI-MAD 245,382 67 BAHANDI 46,612
21 ABS 235,086 68 ADD 45,624
22 KAKUSA 228,999 69 AMANG 43,062
23 KABATAAN 228,637 70 ABAY PARAK 42,282
24 ABA-AKO 218,818 71 BABAE KA 36,512
25 ALIF 217,822 72 SB 34,835
26 SENIOR 213,058 73 ASAP 34,098
CITIZENS
27 AT 197,872 74 PEP 33,938
28 VFP 196,266 75 ABA ILONGGO 33,903
29 ANAD 188,521 76 VENDORS 33,691
30 BANAT 177,028 77 ADD-TRIBAL 32,896
31 ANG 170,531 78 ALMANA 32,255
KASANGGA
32 BANTAY 169,801 79 AANGAT KA 29,130
PILIPINO
33 ABAKADA 166,747 80 AAPS 26,271
34 1-UTAK 164,980 81 HAPI 25,781
35 TUCP 162,647 82 AAWAS 22,946
36 COCOFED 155,920 83 SM 20,744
37 AGHAM 146,032 84 AG 16,916
38 ANAK 141,817 85 AGING PINOY 16,729
39 ABANSE! 130,356 86 APO 16,421
PINAY
40 PM 119,054 87 BIYAYANG 16,241
BUKID
41 AVE 110,769 88 ATS 14,161
42 SUARA 110,732 89 UMDJ 9,445
43 ASSALAM 110,440 90 BUKLOD 8,915
FILIPINA
44 DIWA 107,021 91 LYPAD 8,471
45 ANC 99,636 92 AA-KASOSYO 8,406
46 SANLAKAS 97,375 93 KASAPI 6,221
47 ABC 90,058 TOTAL 15,950,900
The first clause of Section 11(b) of R.A. No. 7941 states that parties, organizations,
and coalitions receiving at least two percent (2%) of the total votes cast for the
party-list system shall be entitled to one seat each. This clause guarantees a seat to
the two-percenters. In Table 2 below, we use the first 20 party-list candidates for
illustration purposes. The percentage of votes garnered by each party is arrived at
by dividing the number of votes garnered by each party by 15,950,900, the total
number of votes cast for all party-list candidates.

Table 2. The first 20 party-list candidates and their respective percentage of votes
garnered over the total votes for the party-list.[28]

Votes
Garnered over
Votes Guaranteed
Rank Party Total Votes for
Garnered Seat
Party-List, in
%
1 BUHAY 1,169,234 7.33% 1
2 BAYAN MUNA 979,039 6.14% 1
3 CIBAC 755,686 4.74% 1
4 GABRIELA 621,171 3.89% 1
5 APEC 619,657 3.88% 1
6 A TEACHER 490,379 3.07% 1
7 AKBAYAN 466,112 2.92% 1
8 ALAGAD 423,149 2.65% 1
9 COOP-NATCCO 409,883 2.57% 1
10 BUTIL 409,160 2.57% 1
11 BATAS[29] 385,810 2.42% 1
12 ARC 374,288 2.35% 1
13 ANAKPAWIS 370,261 2.32% 1
14 ABONO 339,990 2.13% 1
15 AMIN 338,185 2.12% 1
16 AGAP 328,724 2.06% 1
17 AN WARAY 321,503 2.02% 1
Total 17
18 YACAP 310,889 1.95% 0
19 FPJPM 300,923 1.89% 0
 20 UNI-MAD 245,382 1.54% 0

From Table 2 above, we see that only 17 party-list candidates received at least 2%
from the total number of votes cast for party-list candidates. The 17 qualified party-
list candidates, or the two-percenters, are the party-list candidates that are entitled
to one seat each, or the guaranteed seat. In this first round of seat allocation, we
distributed 17 guaranteed seats.
The second clause of Section 11(b) of R.A. No. 7941 provides that those garnering
more than two percent (2%) of the votes shall be entitled to additional seats in
proportion to their total number of votes. This is where petitioners and
intervenors problem with the formula in Veterans lies. Veterans interprets the clause
in proportion to their total number of votes to be in proportion to the votes of the
first party. This interpretation is contrary to the express language of R.A. No. 7941.

We rule that, in computing the allocation of additional seats, the continued

operation of the two percent threshold for the distribution of the additional seats as
found in the second clause of Section 11(b) of R.A. No. 7941
is unconstitutional. This Court finds that the two percent threshold makes it
mathematically impossible to achieve the maximum number of available party list
seats when the number of available party list seats exceeds 50. The continued
operation of the two percent threshold in the distribution of the additional seats
frustrates the attainment of the permissive ceiling that 20% of the members of the
House of Representatives shall consist of party-list representatives.

To illustrate: There are 55 available party-list seats. Suppose there are 50 million
votes cast for the 100 participants in the party list elections. A party that has two
percent of the votes cast, or one million votes, gets a guaranteed seat. Let us further
assume that the first 50 parties all get one million votes. Only 50 parties get a seat
despite the availability of 55 seats. Because of the operation of the two percent
threshold, this situation will repeat itself even if we increase the available party-list
seats to 60 seats and even if we increase the votes cast to 100 million. Thus, even if
the maximum number of parties get two percent of the votes for every party, it is
always impossible for the number of occupied party-list seats to exceed 50 seats as
long as the two percent threshold is present.

We therefore strike down the two percent threshold only in relation to the
distribution of the additional seats as found in the second clause of Section 11(b) of
R.A. No. 7941. The two percent threshold presents an unwarranted obstacle to the
full implementation of Section 5(2), Article VI of the Constitution and prevents the
attainment of the broadest possible representation of party, sectoral or group
interests in the House of Representatives.[30]

In determining the allocation of seats for party-list representatives under Section 11

of R.A. No. 7941, the following procedure shall be observed:
1. The parties, organizations, and coalitions shall be ranked from the highest
to the lowest based on the number of votes they garnered during the elections.

2. The parties, organizations, and coalitions receiving at least two percent

(2%) of the total votes cast for the party-list system shall be entitled to one
guaranteed seat each.

3. Those garnering sufficient number of votes, according to the ranking in

paragraph 1, shall be entitled to additional seats in proportion to their total number
of votes until all the additional seats are allocated.

4. Each party, organization, or coalition shall be entitled to not more than

three (3) seats.

In computing the additional seats, the guaranteed seats shall no longer be included
because they have already been allocated, at one seat each, to every two-
percenter.Thus, the remaining available seats for allocation as additional
seats are the maximum seats reserved under the Party List System less the
guaranteed seats. Fractional seats are disregarded in the absence of a provision in
R.A. No. 7941 allowing for a rounding off of fractional seats.

In declaring the two percent threshold unconstitutional, we do not limit our

allocation of additional seats in Table 3 below to the two-percenters. The
percentage of votes garnered by each party-list candidate is arrived at by dividing
the number of votes garnered by each party by 15,950,900, the total number of
votes cast for party-list candidates. There are two steps in the second round of seat
allocation. First, the percentage is multiplied by the remaining available seats, 38,
which is the difference between the 55 maximum seats reserved under the Party-
List System and the 17 guaranteed seats of the two-percenters. The whole integer of
the product of the percentage and of the remaining available seats corresponds to a
partys share in the remaining available seats. Second, we assign one party-list seat
to each of the parties next in rank until all available seats are completely
distributed. We distributed all of the remaining 38 seats in the second round of seat
allocation. Finally, we apply the three-seat cap to determine the number of seats
each qualified party-list candidate is entitled. Thus:

Table 3. Distribution of Available Party-List Seats

Ran Party Votes Votes Guarantee Additiona (B) Applyin

k Garnere Garnere d Seat l plus g the
d d over Seats (C), in three
Total whole seat cap
Votes for integer
Party s
List, in
% (First
Round) (Second
Round)
(B) (E)
(A) (C)
(D)
1 BUHAY 1,169,23 7.33% 1 2.79 3 N.A.
4
2 BAYAN 979,039 6.14% 1 2.33 3 N.A.
MUNA
3 CIBAC 755,686 4.74% 1 1.80 2 N.A.
4 GABRIELA 621,171 3.89% 1 1.48 2 N.A.
5 APEC 619,657 3.88% 1 1.48 2 N.A.
6 A Teacher 490,379 3.07% 1 1.17 2 N.A.
7 AKBAYAN 466,112 2.92% 1 1.11 2 N.A.
8 ALAGAD 423,149 2.65% 1 1.01 2 N.A.
9[31] COOP- 409,883 2.57% 1 1 2 N.A.
NATCCO
10 BUTIL 409,160 2.57% 1 1 2 N.A.
11 BATAS 385,810 2.42% 1 1 2 N.A.
12 ARC 374,288 2.35% 1 1 2 N.A.
13 ANAKPAWI 370,261 2.32% 1 1 2 N.A.
S
14 ABONO 339,990 2.13% 1 1 2 N.A.
15 AMIN 338,185 2.12% 1 1 2 N.A.
16 AGAP 328,724 2.06% 1 1 2 N.A.
17 AN WARAY 321,503 2.02% 1 1 2 N.A.
18 YACAP 310,889 1.95% 0 1 1 N.A.
19 FPJPM 300,923 1.89% 0 1 1 N.A.
20 UNI-MAD 245,382 1.54% 0 1 1 N.A.
21 ABS 235,086 1.47% 0 1 1 N.A.
22 KAKUSA 228,999 1.44% 0 1 1 N.A.
23 KABATAAN 228,637 1.43% 0 1 1 N.A.
24 ABA-AKO 218,818 1.37% 0 1 1 N.A.
25 ALIF 217,822 1.37% 0 1 1 N.A.
26 SENIOR 213,058 1.34% 0 1 1 N.A.
CITIZENS
27 AT 197,872 1.24% 0 1 1 N.A.
28 VFP 196,266 1.23% 0 1 1 N.A.
29 ANAD 188,521 1.18% 0 1 1 N.A.
30 BANAT 177,028 1.11% 0 1 1 N.A.
31 ANG 170,531 1.07% 0 1 1 N.A.
KASANGGA
32 BANTAY 169,801 1.06% 0 1 1 N.A.
33 ABAKADA 166,747 1.05% 0 1 1 N.A.
34 1-UTAK 164,980 1.03% 0 1 1 N.A.
35 TUCP 162,647 1.02% 0 1 1 N.A.
36 COCOFED 155,920 0.98% 0 1 1 N.A.
Tota 17 55
l

Applying the procedure of seat allocation as illustrated in Table 3 above, there are
55 party-list representatives from the 36 winning party-list organizations. All 55
available party-list seats are filled. The additional seats allocated to the parties with
sufficient number of votes for one whole seat, in no case to exceed a total of three
seats for each party, are shown in column (D).

Participation of Major Political Parties in Party-List Elections

The Constitutional Commission adopted a multi-party system that allowed all

political parties to participate in the party-list elections. The deliberations of
the Constitutional Commission clearly bear this out, thus:

MR. MONSOD. Madam President, I just want to say that we suggested or proposed
the party list system because we wanted to open up the political system to a
pluralistic society through a multiparty system. x x x We are for opening up the
system, and we would like very much for the sectors to be there. That is why
one of the ways to do that is to put a ceiling on the number of representatives
from any single party that can sit within the 50 allocated under the party list
system. x x x.

xxx

MR. MONSOD. Madam President, the candidacy for the 198 seats is not limited to
political parties. My question is this: Are we going to classify for example Christian
Democrats and Social Democrats as political parties? Can they run under the party
list concept or must they be under the district legislation side of it only?

MR. VILLACORTA. In reply to that query, I think these parties that the Commissioner
mentioned can field candidates for the Senate as well as for the House of
Representatives.Likewise, they can also field sectoral candidates for the 20
percent or 30 percent, whichever is adopted, of the seats that we are
allocating under the party list system.

MR. MONSOD. In other words, the Christian Democrats can field district candidates
and can also participate in the party list system?

MR. VILLACORTA. Why not? When they come to the party list system, they will
be fielding only sectoral candidates.

MR. MONSOD. May I be clarified on that? Can UNIDO participate in the party list
system?

MR. VILLACORTA. Yes, why not? For as long as they field candidates who come
from the different marginalized sectors that we shall designate in this
Constitution.

MR. MONSOD. Suppose Senator Taada wants to run under BAYAN group and says
that he represents the farmers, would he qualify?

MR. VILLACORTA. No, Senator Taada would not qualify.

MR. MONSOD. But UNIDO can field candidates under the party list system and say
Juan dela Cruz is a farmer. Who would pass on whether he is a farmer or not?

MR. TADEO. Kay Commissioner Monsod, gusto ko lamang linawin ito. Political
parties, particularly minority political parties, are not prohibited to
participate in the party list election if they can prove that they are also
organized along sectoral lines.

MR. MONSOD. What the Commissioner is saying is that all political parties can
participate because it is precisely the contention of political parties that they
represent the broad base of citizens and that all sectors are represented in
them. Would the Commissioner agree?
MR. TADEO. Ang punto lamang namin, pag pinayagan mo ang UNIDO na isang
political party, it will dominate the party list at mawawalang saysay din yung
sector. Lalamunin mismo ng political parties ang party list system. Gusto ko lamang
bigyan ng diin ang reserve. Hindi ito reserve seat sa marginalized sectors. Kung
titingnan natin itong 198 seats, reserved din ito sa political parties.

MR. MONSOD. Hindi po reserved iyon kasi anybody can run there. But my question
to Commissioner Villacorta and probably also to Commissioner Tadeo is that under
this system, would UNIDO be banned from running under the party list system?

MR. VILLACORTA. No, as I said, UNIDO may field sectoral candidates. On that
condition alone, UNIDO may be allowed to register for the party list system.

MR. MONSOD. May I inquire from Commissioner Tadeo if he shares that answer?

MR. TADEO. The same.

MR. VILLACORTA. Puwede po ang UNIDO, pero sa sectoral lines.

xxxx

MR. OPLE. x x x In my opinion, this will also create the stimulus for political parties
and mass organizations to seek common ground. For example, we have the PDP-
Laban and the UNIDO. I see no reason why they should not be able to make common
goals with mass organizations so that the very leadership of these parties can be
transformed through the participation of mass organizations. And if this is true of
the administration parties, this will be true of others like the Partido ng Bayan
which is now being formed. There is no question that they will be attractive to many
mass organizations. In the opposition parties to which we belong, there will be a
stimulus for us to contact mass organizations so that with their participation, the
policies of such parties can be radically transformed because this amendment will
create conditions that will challenge both the mass organizations and the political
parties to come together. And the party list system is certainly available, although it
is open to all the parties. It is understood that the parties will enter in the roll of the
COMELEC the names of representatives of mass organizations affiliated with
them. So that we may, in time, develop this excellent system that they have in
Europe where labor organizations and cooperatives, for example, distribute
themselves either in the Social Democratic Party and the Christian Democratic Party
in Germany, and their very presence there has a transforming effect upon the
philosophies and the leadership of those parties.

It is also a fact well known to all that in the United States, the AFL-CIO always vote
with the Democratic Party. But the businessmen, most of them, always vote with the
Republican Party, meaning that there is no reason at all why political parties and
mass organizations should not combine, reenforce, influence and interact with each
other so that the very objectives that we set in this Constitution for sectoral
representation are achieved in a wider, more lasting, and more institutionalized
way. Therefore, I support this [Monsod-Villacorta] amendment. It installs sectoral
representation as a constitutional gift, but at the same time, it challenges the sector
to rise to the majesty of being elected representatives later on through a party list
system; and even beyond that, to become actual political parties capable of
contesting political power in the wider constitutional arena for major political
parties.

x x x [32] (Emphasis supplied)

R.A. No. 7941 provided the details for the concepts put forward by the
Constitutional Commission. Section 3 of R.A. No. 7941 reads:

Definition of Terms. (a) The party-list system is a mechanism of proportional

representation in the election of representatives to the House of Representatives
from national, regional and sectoral parties or organizations or coalitions thereof
registered with the Commission on Elections (COMELEC). Component parties or
organizations of a coalition may participate independently provided the coalition of
which they form part does not participate in the party-list system.

(b) A party means either a political party or a sectoral party or a coalition of parties.

(c) A political party refers to an organized group of citizens advocating an ideology

or platform, principles and policies for the general conduct of government and
which, as the most immediate means of securing their adoption, regularly
nominates and supports certain of its leaders and members as candidates for public
office.

It is a national party when its constituency is spread over the geographical territory
of at least a majority of the regions. It is a regional party when its constituency is
spread over the geographical territory of at least a majority of the cities and
provinces comprising the region.

(d) A sectoral party refers to an organized group of citizens belonging to any of the
sectors enumerated in Section 5 hereof whose principal advocacy pertains to the
special interests and concerns of their sector,

(e) A sectoral organization refers to a group of citizens or a coalition of groups of

citizens who share similar physical attributes or characteristics, employment,
interests or concerns.

(f) A coalition refers to an aggrupation of duly registered national, regional, sectoral

parties or organizations for political and/or election purposes.

Congress, in enacting R.A. No. 7941, put the three-seat cap to prevent any party from
dominating the party-list elections.
Neither the Constitution nor R.A. No. 7941 prohibits major political parties from
participating in the party-list system. On the contrary, the framers of the
Constitution clearly intended the major political parties to participate in party-list
elections through their sectoral wings. In fact, the members of the Constitutional
Commission voted down, 19-22, any permanent sectoral seats, and in the alternative
the reservation of the party-list system to the sectoral groups.[33] In defining a party
that participates in party-list elections as either a political party or a sectoral
party, R.A. No. 7941 also clearly intended that major political parties will participate
in the party-list elections. Excluding the major political parties in party-list elections
is manifestly against the Constitution, the intent of the Constitutional Commission,
and R.A. No. 7941. This Court cannot engage in socio-political engineering and
judicially legislate the exclusion of major political parties from the party-list
elections in patent violation of the Constitution and the law.

Read together, R.A. No. 7941 and the deliberations of the Constitutional Commission
state that major political parties are allowed to establish, or form coalitions with,
sectoral organizations for electoral or political purposes. There should not be a
problem if, for example, the Liberal Party participates in the party-list election
through the Kabataang Liberal ng Pilipinas (KALIPI), its sectoral youth wing. The
other major political parties can thus organize, or affiliate with, their chosen sector
or sectors. To further illustrate, the Nacionalista Party can establish a fisherfolk
wing to participate in the party-list election, and this fisherfolk wing can field its
fisherfolk nominees. Kabalikat ng Malayang Pilipino (KAMPI) can do the same for
the urban poor.

The qualifications of party-list nominees are prescribed in Section 9 of R.A. No.

7941:

Qualifications of Party-List Nominees. No person shall be nominated as party-list

representative unless he is a natural born citizen of the Philippines, a registered
voter, a resident of the Philippines for a period of not less than one (1) year
immediately preceding the day of the elections, able to read and write, bona
fide member of the party or organization which he seeks to represent for at least
ninety (90) days preceding the day of the election, and is at least twenty-five (25)
years of age on the day of the election.

In case of a nominee of the youth sector, he must at least be twenty-five (25) but not
more than thirty (30) years of age on the day of the election. Any youth sectoral
representative who attains the age of thirty (30) during his term shall be allowed to
continue until the expiration of his term.

Under Section 9 of R.A. No. 7941, it is not necessary that the party-list organizations
nominee wallow in poverty, destitution and infirmity[34] as there is no financial
status required in the law. It is enough that the nominee of the sectoral
party/organization/coalition belongs to the marginalized and underrepresented
sectors,[35] that is, if the nominee represents the fisherfolk, he or she must be a
fisherfolk, or if the nominee represents the senior citizens, he or she must be a
senior citizen.

Neither the Constitution nor R.A. No. 7941 mandates the filling-up of the entire 20%
allocation of party-list representatives found in the Constitution. The Constitution,
in paragraph 1, Section 5 of Article VI, left the determination of the number of the
members of the House of Representatives to Congress: The House of
Representatives shall be composed of not more than two hundred and fifty
members, unless otherwise fixed by law, x x x. The 20% allocation of party-list
representatives is merely a ceiling; party-list representatives cannot be more than
20% of the members of the House of Representatives. However, we cannot allow the
continued existence of a provision in the law which will systematically prevent the
constitutionally allocated 20% party-list representatives from being filled. The
three-seat cap, as a limitation to the number of seats that a qualified party-list
organization may occupy, remains a valid statutory device that prevents any party
from dominating the party-list elections. Seats for party-list representatives shall
thus be allocated in accordance with the procedure used in Table 3 above.

However, by a vote of 8-7, the Court decided to continue the ruling

in Veterans disallowing major political parties from participating in the party-list
elections, directly or indirectly. Those who voted to continue disallowing major
political parties from the party-list elections joined Chief Justice Reynato S. Puno in
his separate opinion.On the formula to allocate party-list seats, the Court is
unanimous in concurring with this ponencia.

WHEREFORE, we PARTIALLY GRANT the petition. We SET ASIDE the Resolution

of the COMELEC dated 3 August 2007 in NBC No. 07-041 (PL) as well as the
Resolution dated 9 July 2007 in NBC No. 07-60. We declare unconstitutional the two
percent threshold in the distribution of additional party-list seats. The allocation of
additional seats under the Party-List System shall be in accordance with the
procedure used in Table 3 of this Decision. Major political parties are disallowed
from participating in party-list elections. This Decision is immediately executory. No
pronouncement as to costs.

SO ORDERED.

EN BANC

G.R. No. 203766 April 2, 2013

ATONG PAGLAUM, INC., represented by its President, Mr. Alan Igot, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x

G.R. Nos. 203818-19

AKO BICOL POLITICAL PARTY (AKB), Petitioner,

vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 203922

ASSOCIATION OF PHILIPPINE ELECTRIC COOPERATIVES (APEC),represented by its

President Congressman Ponciano D. Payuyo, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 203936

AKSYON MAGSASAKA-PARTIDO TINIG NG MASA, represented by its President

Michael Abas Kida,Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 203958

KAPATIRAN NG MGA NAKULONG NA WALANG SALA, INC. (KAKUSA), Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 203960

1st CONSUMERS ALLIANCE FOR RURAL ENERGY, INC. (1-CARE), Petitioner,

vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 203976

ALLIANCE FOR RURAL AND AGRARIAN RECONSTRUCTION, INC.

(ARARO), Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x

G.R. No. 203981

ASSOCIATION FOR RIGHTEOUSNESS ADVOCACY ON LEADERSHIP (ARAL) PARTY-

LIST, represented herein by Ms. Lourdes L. Agustin, the party’s Secretary
General, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204002

ALLIANCE FOR RURAL CONCERNS, Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204094

ALLIANCE FOR NATIONALISM AND DEMOCRACY (ANAD), Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204100

1-BRO PHILIPPINE GUARDIANS BROTHERHOOD, INC., (1BRO-PGBI) formerly

PGBI, Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 204122

1 GUARDIANS NATIONALIST PHILIPPINES, INC., (1GANAP/GUARDIANS), Petitioner,

vs.
COMMISSION ON ELECTIONS EN BANC composed of SIXTO S. BRILLANTES, JR.,
Chairman, RENE V. SARMIENTO, Commissioner,LUCENITO N. TAGLE,
Commissioner,ARMANDO C. VELASCO, Commissioner,ELIAS R. YUSOPH,
Commissioner, andCHRISTIAN ROBERT S. LIM, Commissioner,Respondents.

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

G.R. No. 204125

AGAPAY NG INDIGENOUS PEOPLES RIGHTS ALLIANCE, INC. (A-IPRA), represented
by its Secretary General,Ronald D. Macaraig, Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 204126

KAAGAPAY NG NAGKAKAISANG AGILANG PILIPINONG MAGSASAKA (KAP),

formerly known as AKO AGILA NG NAGKAKAISANG MAGSASAKA (AKO AGILA),
represented by its Secretary General, Leo R. San Buenaventura, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204139

ALAB NG MAMAMAHAYAG (ALAM), represented by Atty. Berteni Cataluña

Causing, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204141

BANTAY PARTY LIST, represented by Maria Evangelina F. Palparan,

President, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204153

PASANG MASDA NATIONWIDE PARTY by its President Roberto "Ka Obet"

Martin, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondents.

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

G.R. No. 204158

ABROAD PARTY LIST, Petitioner,

vs.
COMMISSION ON ELECTIONS, CHAIRMAN SIXTO S. BRILLANTES, JR.,
COMMISSIONERS RENE V. SARMIENTO, ARMANDO C. VELASCO, ELIAS R. YUSOPH,
CHRISTIAN ROBERT S. LIM, MARIA GRACIA CIELO M. PADACA, LUCENITO TAGLE,
AND ALL OTHER PERSONS ACTING ON THEIR BEHALF,Respondents.

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

G.R. No. 204174

AANGAT TAYO PARTY LIST-PARTY, represented by its President Simeon T. Silva,

Jr., Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 204216

COCOFED-PHILIPPINE COCONUT PRODUCERS FEDERATION, INC., Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204220

ABANG LINGKOD PARTY-LIST, Petitioner,

vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 204236

FIRM 24-K ASSOCIATION, INC., Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204238

ALLIANCE OF BICOLNON PARTY (ABP), Petitioner,

vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 204239

GREEN FORCE FOR THE ENVIRONMENT SONS AND DAUGHTERS OF MOTHER

EARTH (GREENFORCE),Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204240

AGRI-AGRA NA REPORMA PARA SA MAGSASAKA NG PILIPINAS MOVEMENT

(AGRI), represented by its Secretary General, Michael Ryan A. Enriquez, Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 204263

A BLESSED PARTY LIST A.K.A. BLESSEDFEDERATION OF FARMERS AND

FISHERMEN INTERNATIONAL, INC., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204318

UNITED MOVEMENT AGAINST DRUGS FOUNDATION (UNIMAD) PARTY-

LIST, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204321

ANG AGRIKULTURA NATIN ISULONG (AANI), represented by its Secretary General

Jose C. Policarpio, Jr.,Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204323

BAYANI PARTYLIST as represented byHomer Bueno, Fitrylin Dalhani,Israel de Castro,

Dante Navarroand Guiling Mamondiong, Petitioner,
vs.
COMMISSION ON ELECTIONS, CHAIRMAN SIXTO S. BRILLANTES, JR.,
COMMISSIONERS RENE V. SARMIENTO, LUCENITO N. TAGLE, ARMANDO C.
VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S. LIM, and MARIA GRACIA
CIELO M. PADACA, Respondents.
x-----------------------x

G.R. No. 204341

ACTION LEAGUE OF INDIGENOUS MASSES(ALIM) PARTY-LIST, represented herein

by its President Fatani S. Abdul Malik, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204356

BUTIL FARMERS PARTY, Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204358

ALLIANCE OF ADVOCATES IN MININGADVANCEMENT FOR NATIONAL PROGRESS

(AAMA), Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 204359

SOCIAL MOVEMENT FOR ACTIVEREFORM AND TRANSPARENCY (SMART),

represented by its Chairman, Carlito B. Cubelo, Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 204364

ADHIKAIN AT KILUSAN NG ORDINARYONG-TAO, PARA SA LUPA, PABAHAY,

HANAPBUHAY AT KAUNLARAN (AKO BUHAY), Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, SIXTO S. BRILLANTES, JR., RENE V.
SARMIENTO, LUCENITO N. TAGLE, ARMANDO C. VELASCO, ELIAS R. YUSOPH,
CHRISTIAN ROBERT S. LIM, and MA. GRACIA CIELO M. PADACA, in their capacities
as Commissioners thereof, Respondents.

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

G.R. No. 204367

AKBAY KALUSUGAN INCORPORATION(AKIN), Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204370

AKO AN BISAYA (AAB), represented by itsSecretary General, Rodolfo T.

Tuazon, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204374

BINHI-PARTIDO NG MGA MAGSASAKA PARA SA MGA MAGSASAKA, Petitioner,

vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 204379

ALAGAD NG SINING (ASIN) represented by its President, Faye Maybelle

Lorenz, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204394

ASSOCIATION OF GUARD UTILITY HELPER, AIDER, RIDER, DRIVER/DOMESTIC

HELPER, JANITOR, AGENT AND NANNY OF THE PHILIPPINES, INC.
(GUARDJAN), Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204402

KALIKASAN PARTY-LIST, represented by its President, Clemente G. Bautista, Jr., and

Secretary General, Frances Q. Quimpo, Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

x-----------------------x
G.R. No. 204408

PILIPINO ASSOCIATION FOR COUNTRY-URBAN POOR YOUTH ADVANCEMENT AND

WELFARE (PACYAW),Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204410

1-UNITED TRANSPORT KOALISYON (1-UTAK), Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204421

COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE PHILIPPINES, INC.

SENIOR CITIZEN PARTY-LIST, represented herein by its 1st nominee and Chairman,
Francisco G. Datol, Jr., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204425

COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE PHILIPPINES,

INC., Petitioner,
vs.
COMMISSION ON ELECTIONS and ANY OF ITS OFFICERS AND AGENTS, ACTING
FOR AND IN ITS BEHALF, INCLUDING THE CHAIR AND MEMBERSOF THE
COMMISSION, Respondents.

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

G.R. No. 204426

ASSOCIATION OF LOCAL ATHLETICS ENTREPRENEURS AND HOBBYISTS, INC.

(ALA-EH), Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, SIXTO S. BRILLANTES, JR., RENE V.
SARMIENTO, LUCENITO N. TAGLE, ARMANDO C. VELASCO, ELIAS R. YUSOPH,
CHRISTIAN ROBERT S. LIM, and MA. GRACIA CIELO M. PADACA, in their respective
capacities as COMELEC Chairperson and Commissioners, Respondents.

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

G.R. No. 204428

ANG GALING PINOY (AG), represented by its Secretary General, Bernardo R. Corella,
Jr., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204435

1 ALLIANCE ADVOCATING AUTONOMY PARTY (1AAAP), Petitioner,

vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 204436

ABYAN ILONGGO PARTY (AI), represented byits Party President, Rolex T.

Suplico, Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 204455

MANILA TEACHER SAVINGS AND LOAN ASSOCIATION, INC., Petitioner,

vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

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

G.R. No. 204484

PARTIDO NG BAYAN ANG BIDA (PBB), represented by its Secretary General, Roger
M. Federazo, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204485

ALLIANCE OF ORGANIZATIONS, NETWORKS AND ASSOCIATIONS OF THE

PHILIPPINES, INC. (ALONA),Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

x-----------------------x
 G.R. No. 204486

1st KABALIKAT NG BAYAN GINHAWANG SANGKATAUHAN (1st

KABAGIS), Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

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

G.R. No. 204490

PILIPINAS PARA SA PINOY (PPP), Petitioner,

vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.

PERLAS-BERNABE,*

DECISION

CARPIO, J.:

The Cases

These cases constitute 54 Petitions for Certiorari and Petitions for Certiorari and
Prohibition1 filed by 52 party-list groups and organizations assailing the Resolutions issued
by the Commission on Elections (COMELEC) disqualifying them from participating in the 13
May 2013 party-list elections, either by denial of their petitions for registration under the
party-list system, or cancellation of their registration and accreditation as party-list
organizations.

This Court resolved to consolidate the 54 petitions in the Resolutions dated 13 November
2012,2 20 November 2012,3 27 November 2012,4 4 December 2012,5 11 December
2012,6 and 19 February 2013.7

The Facts Pursuant to the provisions of Republic Act No. 7941 (R.A. No. 7941) and
COMELEC Resolution Nos. 9366 and 9531, approximately 280 groups and organizations
registered and manifested their desire to participate in the 13 May 2013 party-list elections.

G.R. No. SPP No. Group Grounds for Denial

A. Via the COMELEC En Banc’s automatic review of the COMELEC

Division’s resolutions approving registration of groups/organizations

Resolution dated 23 November 20128

1 204379 12-099 Alagad ng - The "artists" sector is not

(PLM) Sining (ASIN) considered marginalized and
underrepresented;
- Failure to prove track
record; and
- Failure of the nominees to
 qualify under RA 7941 and
Ang Bagong Bayani.

Omnibus Resolution dated 27 November 20129

2 204455 12-041 Manila Teachers - A non-stock savings and

(PLM) Savings and loan association cannot be
Loan considered marginalized and
Association, Inc. underrepresented; and
(Manila - The first and second
Teachers) nominees are not teachers by
profession.

3 204426 12-011 Association of - Failure to show that its

(PLM) Local Athletics members belong to the
Entrepreneurs marginalized; and
and Hobbyists, - Failure of the nominees to
Inc. (ALA-EH) qualify.

Resolution dated 27 November 201210

4 204435 12-057 1 Alliance - Failure of the nominees to

(PLM) Advocating qualify: although registering
Autonomy Party as a regional political party,
(1AAAP) two of the nominees are not
residents of the region; and
four of the five nominees do
not belong to the
marginalized and underrepresented.

Resolution dated 27 November 201211

5 204367 12-104 (PL) Akbay - Failure of the group to show

Kalusugan that its nominees belong to
(AKIN), Inc. the urban poor sector.

Resolution dated 29 November 201212

6 204370 12-011 (PP) Ako An Bisaya - Failure to represent a

(AAB) marginalized sector of
society, despite the formation
of a sectoral wing for the
benefit of farmers of Region
8;
- Constituency has district
representatives;
- Lack of track record in
representing peasants and
farmers; and
- Nominees are neither
farmers nor peasants.

Resolution dated 4 December 201213

7 204436 12-009 (PP), Abyan Ilonggo - Failure to show that the
12-165 Party (AI) party represents a
(PLM) marginalized and
underrepresented sector, as
the Province of Iloilo has
district representatives;
- Untruthful statements in the
memorandum; and
- Withdrawal of three of its
five nominees.

Resolution dated 4 December 201214

8 204485 12-175 (PL) Alliance of - Failure to establish that the

Organizations, group can represent 14
Networks and Associations of sectors; - The sectors of homeowners’
the Philippines, associations, entrepreneurs
Inc. (ALONA) and cooperatives are not
marginalized and
underrepresented; and
- The nominees do not belong
to the marginalized and
underrepresented.

B. Via the COMELEC En Banc’s review on motion for reconsideration

of the COMELEC Division’s resolutions denying registration of groups
and organizations

Resolution dated 7 November 201215

9 204139 12-127 (PL) Alab ng - Failure to prove track

Mamamahayag record as an organization;
(ALAM) - Failure to show that the
group actually represents the
marginalized and
underrepresented; and
- Failure to establish that the
group can represent all
sectors it seeks to represent.

Resolution dated 7 November 201216

10 204402 12-061 (PP) Kalikasan Party-List - The group reflects an

(KALIKASAN) advocacy for the
environment, and is not
representative of the
marginalized and
underrepresented;
- There is no proof that
majority of its members
belong to the marginalized
and underrepresented;
- The group represents
sectors with conflicting
 interests; and
- The nominees do not belong
to the sector which the group
claims to represent.

Resolution dated 14 November 201217

11 204394 12-145 (PL) Association of - Failure to prove

Guard, Utility membership base and track
Helper, Aider, record;
Rider, Driver/ - Failure to present activities
Domestic that sufficiently benefited its
Helper, intended constituency; and
Janitor, Agent - The nominees do not belong
and to any of the sectors which
Nanny of the the group seeks to represent.
Philippines, Inc.
(GUARDJAN)

Resolution dated 5 December 201218

12 204490 12-073 Pilipinas Para sa - Failure to show that the

(PLM) Pinoy (PPP) group represents a
marginalized and
underrepresented sector, as
Region 12 has district
representatives; and
- Failure to show a track
record of undertaking
programs for the welfare of
the sector the group seeks to
represent.

In a Resolution dated 5 December 2012,19 the COMELEC En Banc affirmed the COMELEC
Second Division’s resolution to grant Partido ng Bayan ng Bida’s (PBB) registration and
accreditation as a political party in the National Capital Region. However, PBB was denied
participation in the 13 May 2013 party-list elections because PBB does not represent any
"marginalized and underrepresented" sector; PBB failed to apply for registration as a party-
list group; and PBB failed to establish its track record as an organization that seeks to uplift
the lives of the "marginalized and underrepresented."20
These 13 petitioners (ASIN, Manila Teachers, ALA-EH, 1AAAP, AKIN, AAB, AI, ALONA,
ALAM, KALIKASAN, GUARDJAN, PPP, and PBB) were not able to secure a mandatory
injunction from this Court. The COMELEC, on 7 January 2013 issued Resolution No.
9604,21 and excluded the names of these 13 petitioners in the printing of the official ballot for
the 13 May 2013 party-list elections.
Pursuant to paragraph 222 of Resolution No. 9513, the COMELEC En Banc scheduled
summary evidentiary hearings to determine whether the groups and organizations that filed
manifestations of intent to participate in the 13 May 2013 party-list elections have continually
complied with the requirements of R.A. No. 7941 and Ang Bagong Bayani-OFW Labor Party
v. COMELEC23 (Ang Bagong Bayani). The COMELEC disqualified the following groups and
organizations from participating in the 13 May 2013 party-list elections:
 G.R. No. SPP No. Group Grounds for Denial

Resolution dated 10 October 201224

1 203818-19 12-154 AKO Bicol Retained registration and

(PLM) Political Party accreditation as a political
12-177 (AKB) party, but denied participation
(PLM) in the May 2013 party-list
elections
- Failure to represent any
marginalized and
underrepresented sector;
- The Bicol region already
has representatives in
Congress; and
- The nominees are not
marginalized and
underrepresented.

Omnibus Resolution dated 11 October 201225

2 203766 12-161 Atong Paglaum, Cancelled registration and

(PLM) Inc. (Atong accreditation
Paglaum) - The nominees do not belong
to the sectors which the party
represents; and
- The party failed to file its
Statement of Contributions
and Expenditures for the
2010 Elections.

3 203981 12-187 Association for Cancelled registration and

(PLM) Righteousness accreditation
Advocacy on - Failure to comply, and for
Leadership violation of election laws;
(ARAL) - The nominees do not
represent the sectors which
the party represents; and
- There is doubt that the party
is organized for religious
purposes.

4 204002 12-188 Alliance for Cancelled registration and

(PLM) Rural Concerns accreditation
(ARC) - Failure of the nominees to
qualify; and
- Failure of the party to prove
that majority of its members
belong to the sectors it seeks
to represent.

5 204318 12-220 United Cancelled registration and

(PLM) Movement accreditation
Against Drugs - The sectors of drug
 Foundation counsellors and lecturers,
(UNIMAD) veterans and the youth, are
not marginalized and
underrepresented;
- Failure to establish track
record; and
- Failure of the nominees to
qualify as representatives of
the youth and young urban
professionals.

Omnibus Resolution dated 16 October 201226

6 204100 12-196 1-Bro Philippine Cancelled registration

(PLM) Guardians - Failure to define the sector
Brotherhood, it seeks to represent; and
Inc. (1BRO-PGBI) - The nominees do not belong
to a marginalized and
underrepresented sector.

7 204122 12-223 1 Guardians Cancelled registration

(PLM) Nationalist - The party is a military
Philippines, Inc. fraternity;
(1GANAP/ - The sector of community
GUARDIANS) volunteer workers is too
broad to allow for meaningful
representation; and
- The nominees do not appear
to belong to the sector of
community volunteer
workers.

8 20426 12-257 Blessed Cancelled registration

(PLM) Federation of - Three of the seven
Farmers and nominees do not belong to
Fishermen the sector of farmers and
International, fishermen, the sector sought
Inc. (A to be represented; and
BLESSED - None of the nominees are
Party-List) registered voters of Region
XI, the region sought to be
represented.

Resolution dated 16 October 201227

9 203960 12-260 1st Cancelled registration

(PLM) Consumers - The sector of rural energy
Alliance for consumers is not
Rural Energy, marginalized and
Inc. (1-CARE) underrepresented;
- The party’s track record is
related to electric
cooperatives and not rural
 energy consumers; and
- The nominees do not belong
to the sector of rural energy
consumers.

Resolution dated 16 October 201228

10 203922 12-201 Association of Cancelled registration and

(PLM) Philippine accreditation
Electric - Failure to represent a
Cooperatives marginalized and
(APEC) underrepresented sector; and
- The nominees do not belong
to the sector that the party
claims to represent.

Resolution dated 23 October 201229

11 204174 12-232 Aangat Tayo Cancelled registration and

(PLM) Party-List Party accreditation
( AT ) - The incumbent
representative in Congress
failed to author or sponsor
bills that are beneficial to the
sectors that the party
represents (women, elderly,
youth, urban poor); and
- The nominees do not belong
to the marginalized sectors
that the party seeks to
represent.

Omnibus Resolution dated 24 October 201230

12 203976 12-288 Alliance for Cancelled registration and

(PLM) Rural and accreditation
Agrarian - The interests of the peasant
Reconstruction, and urban poor sectors that
Inc. (ARARO) the party represents differ;
- The nominees do not belong
to the sectors that the party
seeks to represent;
- Failure to show that three of
the nominees are bona fide
party members; and
- Lack of a Board resolution
to participate in the party-list
elections.

Omnibus Resolution dated 24 October 201231

13 204240 12-279 Agri-Agra na Cancelled registration

(PLM) Reporma Para sa - The party ceased to exist for
Magsasaka ng more than a year immediately
 Pilipinas after the May 2010 elections;
Movement - The nominees do not belong
(AGRI) to the sector of peasants and
farmers that the party seeks to
represent;
- Only four nominees were
submitted to the COMELEC;
and
- Failure to show meaningful
activities for its constituency.

14 203936 12-248 Aksyon Cancelled registration

(PLM) Magsasaka-Partido Tinig ng - Failure to show that
Masa (AKMA-PTM) majority of its members are
marginalized and
underrepresented;
- Failure to prove that four of
its nine nominees actually
belong to the farmers sector;
and
- Failure to show that five of
its nine nominees work on
uplifting the lives of the
members of the sector.

15 204126 12-263 Kaagapay ng Cancelled registration

(PLM) Nagkakaisang - The Manifestation of Intent
Agilang and Certificate of Nomination
Pilipinong were not signed by an
Magsasaka appropriate officer of the
(KAP) party;
- Failure to show track record
for the farmers and peasants
sector; and
- Failure to show that
nominees actually belong to
the sector, or that they have
undertaken meaningful
activities for the sector.

16 204364 12-180 Adhikain at Cancelled registration

(PLM) Kilusan ng - Failure to show that
Ordinaryong nominees actually belong to
Tao Para sa the sector, or that they have
Lupa, Pabahay, undertaken meaningful
Hanapbuhay at activities for the sector.
Kaunlaran
(AKO-BAHAY)

17 204141 12-229 The True Cancelled registration

(PLM) Marcos Loyalist - Failure to show that
(for God, majority of its members are
Country and marginalized and
 People) underrepresented; and
Association of - Failure to prove that two of
the Philippines, its nominees actually belong
Inc. (BANTAY) to the marginalized and
underrepresented.

18 204408 12-217 Pilipino Cancelled registration

(PLM) Association for - Change of sector (from
Country – Urban urban poor youth to urban
Poor Youth poor) necessitates a new
Advancement application;
and Welfare - Failure to show track record
( PA C YAW ) for the marginalized and
underrepresented;
- Failure to prove that
majority of its members and
officers are from the urban
poor sector; and
- The nominees are not
members of the urban poor
sector.

19 204153 12-277 Pasang Masda Cancelled registration

(PLM) Nationwide - The party represents drivers
Party (PASANG and operators, who may have
MASDA) conflicting interests; and
- Nominees are either
operators or former operators.

20 203958 12-015 Kapatiran ng Cancelled registration

(PLM) mga Nakulong - Failure to prove that
na Walang Sala, na Walang Sala,
Inc. (KAKUSA) Inc. (KAKUSA)
majority of its officers and
members belong to the
marginalized and
underrepresented;
- The incumbent
representative in Congress
failed to author or sponsor
bills that are beneficial to the
sector that the party
represents (persons
imprisoned without proof of
guilt beyond reasonable
doubt);
- Failure to show track record
for the marginalized and
underrepresented; and
- The nominees did not
appear to be marginalized and
underrepresented.
Resolution dated 30 October 201232

21 204428 12-256 Ang Galing Cancelled registration and

(PLM) Pinoy (AG) accreditation
- Failure to attend the
summary hearing;
- Failure to show track record
for the marginalized and
underrepresented; and
- The nominees did not
appear to be marginalized and
underrepresented.

Resolution dated 7 November 201233

22 204094 12-185 Alliance for Cancelled registration and

(PLM) Nationalism and accreditation
Democracy - Failure to represent an
(ANAD) identifiable marginalized and
underrepresented sector;
- Only three nominees were
submitted to the COMELEC;
- The nominees do not
belong to the marginalized
and underrepresented; and
- Failure to submit its
Statement of Contribution
and Expenditures for the
2007 Elections.

Omnibus Resolution dated 7 November 201234

23 204239 12-060 Green Force for Cancelled registration and

(PLM) the Environment accreditation
Sons and - The party is an advocacy
Daughters of group and does not represent
Mother Earth the marginalized and
(GREENFORCE) underrepresented;
- Failure to comply with the
track record requirement; and
- The nominees are not
marginalized citizens.

24 204236 12-254 Firm 24-K Cancelled registration and

(PLM) Association, Inc. accreditation
(FIRM 24-K) - The nominees do not
belong to the sector that the
party seeks to represent
(urban poor and peasants of
the National Capital Region);
- Only two of its nominees
reside in the National Capital
Region; and
 - Failure to comply with the
track record requirement.

25 204341 12-269 Action League Cancelled registration and

(PLM) of Indigenous accreditation
Masses (ALIM) - Failure to establish that its
nominees are members of the
indigenous people in the
Mindanao and Cordilleras
sector that the party seeks to
represent;
- Only two of the party’s
nominees reside in the
Mindanao and Cordilleras;
and
- Three of the nominees do
not appear to belong to the
marginalized.

Resolution dated 7 November 201235

26 204358 12-204 Alliance of Cancelled registration

(PLM) Advocates in - The sector it represents is a
Mining specifically defined group
Advancement which may not be allowed
for National registration under the party-list system; and
Progress - Failure to establish that the
(AAMA) nominees actually belong to
the sector.

Resolution dated 7 November 201236

27 204359 12-272 Social Cancelled registration

(PLM) Movement for - The nominees are
Active Reform disqualified from
and representing the sectors that
Transparency the party represents;
(SMART) - Failure to comply with the
track record requirement; and
- There is doubt as to whether
majority of its members are
marginalized and
underrepresented.

Resolution dated 7 November 201237

28 204238 12-173 Alliance of Cancelled registration and

(PLM) Bicolnon Party accreditation
(ABP) - Defective registration and
accreditation dating back to
2010;
- Failure to represent any
sector; and
- Failure to establish that the
 nominees are employed in the construction industry, the
sector it claims to represent.

Resolution dated 7 November 201238

29 204323 12-210 Bayani Party Cancelled registration and

(PLM) List (BAYANI) accreditation
- Failure to prove a track
record of trying to uplift the
marginalized and
underrepresented sector of
professionals; and
- One nominee was declared
unqualified to represent the
sector of professionals.

Resolution dated 7 November 201239

30 204321 12-252 Ang Agrikultura Cancelled registration and

(PLM) Natin Isulong accreditation
(AANI) - Failure to establish a track
record of enhancing the lives
of the marginalized and
underrepresented farmers
which it claims to represent;
and
- More than a majority of the
party’s nominees do not
belong to the farmers sector.

Resolution dated 7 November 201240

31 204125 12-292 Agapay ng Cancelled registration and

(PLM) Indigenous accreditation
Peoples Rights - Failure to prove that its five
Alliance, Inc. nominees are members of the
(A-IPRA) indigenous people sector;
- Failure to prove that its five
nominees actively
participated in the
undertakings of the party; and
- Failure to prove that its five nominees are bona fide
members.

Resolution dated 7 November 201241

32 204216 12-202 Philippine Cancelled registration and

(PLM) Coconut accreditation
Producers - The party is affiliated with
Federation, Inc. private and government
(COCOFED) agencies and is not
marginalized;
- The party is assisted by the
government in various
 projects; and
- The nominees are not
members of the marginalized
sector of coconut farmers and
producers.

Resolution dated 7 November 201242

33 204220 12-238 Abang Lingkod Cancelled registration

(PLM) Party-List - Failure to establish a track
(ABANG record of continuously
LINGKOD) representing the peasant
farmers sector;
- Failure to show that its
members actually belong to
the peasant farmers sector;
and
- Failure to show that its
nominees are marginalized
and underrepresented, have
actively participated in
programs for the
advancement of farmers, and
adhere to its advocacies.

Resolution dated 14 November 201243

34 204158 12-158 Action Cancelled registration and

(PLM) Brotherhood for Active accreditation - Failure to show that the
Dreamers, Inc. party is actually able to
(ABROAD) represent all of the sectors it
claims to represent;
- Failure to show a complete
track record of its activities
since its registration; and
- The nominees are not part
of any of the sectors which
the party seeks to represent.

Resolution dated 28 November 201244

35 204374 12-228 Binhi-Partido ng Cancelled registration and

(PLM) mga Magsasaka accreditation
Para sa mga - The party receives
Magsasaka assistance from the
(BINHI) government through the
Department of Agriculture;
and
- Failure to prove that the
group is marginalized and
underrepresented.

Resolution dated 28 November 201245

36 204356 12-136 Butil Farmers Cancelled registration and
(PLM) Party (BUTIL) accreditation
- Failure to establish that the
agriculture and cooperative
sectors are marginalized and
underrepresented; and
- The party’s nominees
neither appear to belong to
the sectors they seek to
represent, nor to have
actively participated in the
undertakings of the party.

Resolution dated 3 December 201246

37 204486 12-194 1st Cancelled registration and

(PLM) Kabalikat ng accreditation
Bayan - Declaration of untruthful
Ginhawang statements;
Sangkatauhan - Failure to exist for at least
(1st one year; and
KABAGIS) - None of its nominees
belong to the labor,
fisherfolk, and urban poor
indigenous cultural
communities sectors which it
seeks to represent.

Resolution dated 4 December 201247

38 204410 12-198 1-United Cancelled accreditation

(PLM) Transport - The party represents drivers
Koalisyon (1-UTAK) and operators, who may have
conflicting interests; and
- The party’s nominees do not
belong to any marginalized
and underrepresented sector.

Resolution dated 4 December 201248

39 204421, 12-157 Coalition of Cancelled registration

204425 (PLM), Senior Citizens - The party violated election
12-191 in the laws because its nominees
(PLM) Philippines, Inc. had a term-sharing
(SENIOR agreement.
CITIZENS)

These 39 petitioners (AKB, Atong Paglaum, ARAL, ARC, UNIMAD, 1BRO-PGBI,

1GANAP/GUARDIANS, A BLESSED Party-List, 1-CARE, APEC, AT, ARARO, AGRI, AKMA-
PTM, KAP, AKO-BAHAY, BANTAY, PACYAW, PASANG MASDA, KAKUSA, AG, ANAD,
GREENFORCE, FIRM 24-K, ALIM, AAMA, SMART, ABP, BAYANI, AANI, A-IPRA,
COCOFED, ABANG LINGKOD, ABROAD, BINHI, BUTIL, 1st KABAGIS, 1-UTAK, SENIOR
CITIZENS) were able to secure a mandatory injunction from this Court, directing the
 COMELEC to include the names of these 39 petitioners in the printing of the official ballot for
the 13 May 2013 party-list elections.
Petitioners prayed for the issuance of a temporary restraining order and/or writ of preliminary
injunction. This Court issued Status Quo Ante Orders in all petitions. This Decision governs
only the 54 consolidated petitions that were granted Status Quo Ante Orders, namely:

G.R. No. SPP No. Group

Resolution dated 13 November 2012

203818-19 12-154 AKO Bicol Political Party (AKB)

(PLM)
12-177
(PLM)

203981 12-187 Association for Righteousness Advocacy on

(PLM) Leadership (ARAL)

204002 12-188 Alliance for Rural Concerns (ARC)

(PLM)

203922 12-201 Association of Philippine Electric Cooperatives

(PLM) (APEC)

203960 12-260 1st

(PLM) Consumers Alliance for Rural Energy, Inc.
(1-CARE)

203936 12-248 Aksyon Magsasaka-Partido Tinig ng Masa

(PLM) (AKMA-PTM)

203958 12-015 Kapatiran ng mga Nakulong na Walang Sala,

(PLM) Inc. (KAKUSA)

203976 12-288 Alliance for Rural and Agrarian Reconstruction,

(PLM) Inc. (ARARO)

Resolution dated 20 November 2012

204094 12-185 Alliance for Nationalism and Democracy

(PLM) (ANAD)

204125 12-292 Agapay ng Indigenous Peoples Rights Alliance,

(PLM) Inc. (A-IPRA)

204100 12-196 1-Bro Philippine Guardians Brotherhood, Inc.

(PLM) (1BRO-PGBI)

Resolution dated 27 November 2012

204141 12-229 The True Marcos Loyalist (for God, Country

(PLM) and People) Association of the Philippines, Inc.
(BANTAY)

204240 12-279 Agri-Agra na Reporma Para sa Magsasaka ng

 (PLM) Pilipinas Movement (AGRI)

204216 12-202 Philippine Coconut Producers Federation, Inc.

(PLM) (COCOFED)

204158 12-158 Action Brotherhood for Active Dreamer, Inc.

(PLM) (ABROAD)

Resolutions dated 4 December 2012

204122 12-223 1 Guardians Nationalist Philippines, Inc.

(PLM) (1GANAP/GUARDIANS)

203766 12-161 Atong Paglaum, Inc. (Atong Paglaum)

(PLM)

204318 12-220 United Movement Against Drugs Foundation

(PLM) (UNIMAD)

204263 12-257 Blessed Federation of Farmers and Fishermen

(PLM) International, Inc. (A BLESSED Party-List)

204174 12-232 Aangat Tayo Party-List Party (AT)

(PLM)

204126 12-263 Kaagapay ng Nagkakaisang Agilang Pilipinong

(PLM) Magsasaka (KAP)

204364 12-180 Adhikain at Kilusan ng Ordinaryong Tao Para sa

(PLM) Lupa, Pabahay, Hanapbuhay at Kaunlaran
(AKO-BAHAY)

204139 12-127 (PL) Alab ng Mamamahayag (ALAM)

204220 12-238 Abang Lingkod Party-List (ABANG

(PLM) LINGKOD)

204236 12-254 Firm 24-K Association, Inc. (FIRM 24-K)

(PLM)

204238 12-173 Alliance of Bicolnon Party (ABP)

(PLM)

204239 12-060 Green Force for the Environment Sons and

(PLM) Daughters of Mother Earth (GREENFORCE)

204321 12-252 Ang Agrikultura Natin Isulong (AANI)

(PLM)

204323 12-210 Bayani Party List (BAYANI)

(PLM)

204341 12-269 Action League of Indigenous Masses (ALIM)

(PLM)

204358 12-204 Alliance of Advocates in Mining Advancement

 (PLM) for National Progress (AAMA)

204359 12-272 Social Movement for Active Reform and

(PLM) Transparency (SMART)

204356 12-136 Butil Farmers Party (BUTIL)

(PLM)

Resolution dated 11 December 2012

204402 12-061 (PL) Kalikasan Party-List (KALIKASAN)

204394 12-145 (PL) Association of Guard, Utility Helper, Aider,

Rider, Driver/Domestic Helper, Janitor, Agent
and Nanny of the Philippines, Inc.
(GUARDJAN)

204408 12-217 Pilipino Association for Country – Urban Poor

(PLM) Youth Advancement and Welfare (PACYAW)

204428 12-256 Ang Galing Pinoy (AG)

(PLM)

204490 12-073 Pilipinas Para sa Pinoy (PPP)

(PLM)

204379 12-099 Alagad ng Sining (ASIN)

(PLM)

204367 12-104 (PL) Akbay Kalusugan (AKIN)

204426 12-011 Association of Local Athletics Entrepreneurs

(PLM) and Hobbyists, Inc. (ALA-EH)

204455 12-041 Manila Teachers Savings and Loan Association,

(PLM) Inc. (Manila Teachers)

204374 12-228 Binhi-Partido ng mga Magsasaka Para sa mga

(PLM) Magsasaka (BINHI)

204370 12-011 (PP) Ako An Bisaya (AAB)

204435 12-057 1 Alliance Advocating Autonomy Party

(PLM) (1AAAP)

204486 12-194 1st Kabalikat ng Bayan Ginhawang

(PLM) Sangkatauhan (1st KABAGIS)

204410 12-198 1-United Transport Koalisyon (1-UTAK)

(PLM)

204421, 12-157 Coalition of Senior Citizens in the Philippines,

204425 (PLM) Inc. (SENIOR CITIZENS)
12-191
(PLM)
204436 12-009 (PP), Abyan Ilonggo Party (AI)
12-165
(PLM)

204485 12-175 (PL) Alliance of Organizations, Networks and

Associations of the Philippines, Inc. (ALONA)

204484 11-002 Partido ng Bayan ng Bida (PBB)

Resolution dated 11 December 2012

204153 12-277 Pasang Masda Nationwide Party (PASANG

(PLM) MASDA)

The Issues

We rule upon two issues: first, whether the COMELEC committed grave abuse of discretion
amounting to lack or excess of jurisdiction in disqualifying petitioners from participating in the
13 May 2013 party-list elections, either by denial of their new petitions for registration under
the party-list system, or by cancellation of their existing registration and accreditation as
party-list organizations; and second, whether the criteria for participating in the party-list
system laid down in Ang Bagong Bayani and Barangay Association for National
Advancement and Transparency v. Commission on Elections49 (BANAT) should be applied
by the COMELEC in the coming 13 May 2013 party-list elections.

The Court’s Ruling

We hold that the COMELEC did not commit grave abuse of discretion in following prevailing
decisions of this Court in disqualifying petitioners from participating in the coming 13 May
2013 party-list elections. However, since the Court adopts in this Decision new parameters in
the qualification of national, regional, and sectoral parties under the party-list system, thereby
abandoning the rulings in the decisions applied by the COMELEC in disqualifying petitioners,
we remand to the COMELEC all the present petitions for the COMELEC to determine who
are qualified to register under the party-list system, and to participate in the coming 13 May
2013 party-list elections, under the new parameters prescribed in this Decision.

The Party-List System

The 1987 Constitution provides the basis for the party-list system of representation. Simply
put, the party-list system is intended to democratize political power by giving political parties
that cannot win in legislative district elections a chance to win seats in the House of
Representatives.50 The voter elects two representatives in the House of Representatives:
one for his or her legislative district, and another for his or her party-list group or organization
of choice. The 1987 Constitution provides:

Section 5, Article VI

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

(2) The party-list representatives shall constitute twenty per centum of the total
number of representatives including those under the party list. For three consecutive
terms after the ratification of this Constitution, one-half of the seats allocated to party-
list representatives shall be filled, as provided by law, by selection or election from
the labor, peasant, urban poor, indigenous cultural communities, women, youth, and
such other sectors as may be provided by law, except the religious sector.

Sections 7 and 8, Article IX-C

Sec. 7. No votes cast in favor of a political party, organization, or coalition shall be valid,
except for those registered under the party-list system as provided in this Constitution.

Sec. 8. Political parties, or organizations or coalitions registered under the party-list system,
shall not be represented in the voters’ registration boards, boards of election inspectors,
boards of canvassers, or other similar bodies. However, they shall be entitled to appoint poll
watchers in accordance with law.

Commissioner Christian S. Monsod, the main sponsor of the party-list system, stressed that
"the party-list system is not synonymous with that of the sectoral
representation."51 The constitutional provisions on the party-list system should be read in
light of the following discussion among its framers:

MR. MONSOD: x x x.

I would like to make a distinction from the beginning that the proposal for the party list
system is not synonymous with that of the sectoral representation. Precisely, the party list
system seeks to avoid the dilemma of choice of sectors and who constitute the members of
the sectors. In making the proposal on the party list system, we were made aware of the
problems precisely cited by Commissioner Bacani of which sectors will have reserved seats.
In effect, a sectoral representation in the Assembly would mean that certain sectors would
have reserved seats; that they will choose among themselves who would sit in those
reserved seats. And then, we have the problem of which sector because as we will notice in
Proclamation No. 9, the sectors cited were the farmers, fishermen, workers, students,
professionals, business, military, academic, ethnic and other similar groups. So these are the
nine sectors that were identified here as "sectoral representatives" to be represented in this
Commission. The problem we had in trying to approach sectoral representation in the
Assembly was whether to stop at these nine sectors or include other sectors. And we went
through the exercise in a caucus of which sector should be included which went up to 14
sectors. And as we all know, the longer we make our enumeration, the more limiting the law
become because when we make an enumeration we exclude those who are not in the
enumeration. Second, we had the problem of who comprise the farmers. Let us just say the
farmers and the laborers. These days, there are many citizens who are called "hyphenated
citizens." A doctor may be a farmer; a lawyer may also be a farmer. And so, it is up to the
discretion of the person to say "I am a farmer" so he would be included in that sector.

The third problem is that when we go into a reserved seat system of sectoral representation
in the Assembly, we are, in effect, giving some people two votes and other people one vote.
We sought to avoid these problems by presenting a party list system. Under the party list
system, there are no reserved seats for sectors. Let us say, laborers and farmers can form a
sectoral party or a sectoral organization that will then register and present candidates of their
party. How do the mechanics go? Essentially, under the party list system, every voter has
two votes, so there is no discrimination. First, he will vote for the representative of his
legislative district. That is one vote. In that same ballot, he will be asked: What party or
organization or coalition do you wish to be represented in the Assembly? And here will be
attached a list of the parties, organizations or coalitions that have been registered with the
COMELEC and are entitled to be put in that list. This can be a regional party, a sectoral
party, a national party, UNIDO, Magsasaka or a regional party in Mindanao. One need not be
a farmer to say that he wants the farmers' party to be represented in the Assembly. Any
citizen can vote for any party. At the end of the day, the COMELEC will then tabulate the
votes that had been garnered by each party or each organization — one does not have to be
a political party and register in order to participate as a party — and count the votes and from
there derive the percentage of the votes that had been cast in favor of a party, organization
or coalition.

When such parties register with the COMELEC, we are assuming that 50 of the 250 seats
will be for the party list system. So, we have a limit of 30 percent of 50. That means that the
maximum that any party can get out of these 50 seats is 15. When the parties register they
then submit a list of 15 names. They have to submit these names because these nominees
have to meet the minimum qualifications of a Member of the National Assembly. At the end
of the day, when the votes are tabulated, one gets the percentages. Let us say, UNIDO gets
10 percent or 15 percent of the votes; KMU gets 5 percent; a women’s party gets 2 1/2
percent and anybody who has at least 2 1/2 percent of the vote qualifies and the 50 seats
are apportioned among all of these parties who get at least 2 1/2 percent of the vote.

What does that mean? It means that any group or party who has a constituency of, say,
500,000 nationwide gets a seat in the National Assembly. What is the justification for that?
When we allocate legislative districts, we are saying that any district that has 200,000 votes
gets a seat. There is no reason why a group that has a national constituency, even if it is a
sectoral or special interest group, should not have a voice in the National Assembly. It also
means that, let us say, there are three or four labor groups, they all register as a party or as
a group. If each of them gets only one percent or five of them get one percent, they are not
entitled to any representative. So, they will begin to think that if they really have a common
interest, they should band together, form a coalition and get five percent of the vote and,
therefore, have two seats in the Assembly. Those are the dynamics of a party list system.

We feel that this approach gets around the mechanics of sectoral representation while at the
same time making sure that those who really have a national constituency or sectoral
constituency will get a chance to have a seat in the National Assembly. These sectors or
these groups may not have the constituency to win a seat on a legislative district basis. They
may not be able to win a seat on a district basis but surely, they will have votes on a
nationwide basis.

The purpose of this is to open the system. In the past elections, we found out that there were
certain groups or parties that, if we count their votes nationwide; have about 1,000,000 or
1,500,000 votes. But they were always third place or fourth place in each of the districts. So,
they have no voice in the Assembly. But this way, they would have five or six representatives
in the Assembly even if they would not win individually in legislative districts. So, that is
essentially the mechanics, the purpose and objectives of the party list system.
BISHOP BACANI: Madam President, am I right in interpreting that when we speak now of
party list system though we refer to sectors, we would be referring to sectoral party list rather
than sectors and party list?

MR. MONSOD: As a matter of fact, if this body accepts the party list system, we do not even
have to mention sectors because the sectors would be included in the party list
system. They can be sectoral parties within the party list system.

xxxx

MR. MONSOD. Madam President, I just want to say that we suggested or proposed the
party list system because we wanted to open up the political system to a pluralistic society
through a multiparty system. x x x We are for opening up the system, and we would like
very much for the sectors to be there. That is why one of the ways to do that is to put
a ceiling on the number of representatives from any single party that can sit within the
50 allocated under the party list system. x x x.

xxx

MR. MONSOD. Madam President, the candidacy for the 198 seats is not limited to
political parties. My question is this: Are we going to classify for example Christian
Democrats and Social Democrats as political parties? Can they run under the party
list concept or must they be under the district legislation side of it only?

MR. VILLACORTA. In reply to that query, I think these parties that the Commissioner
mentioned can field candidates for the Senate as well as for the House of
Representatives. Likewise, they can also field sectoral candidates for the 20 percent
or 30 percent, whichever is adopted, of the seats that we are allocating under the party
list system.

MR. MONSOD. In other words, the Christian Democrats can field district candidates
and can also participate in the party list system?

MR. VILLACORTA. Why not? When they come to the party list system, they will be
fielding only sectoral candidates.

MR. MONSOD. May I be clarified on that? Can UNIDO participate in the party list
system?

MR. VILLACORTA. Yes, why not? For as long as they field candidates who come from
the different marginalized sectors that we shall designate in this Constitution.

MR. MONSOD. Suppose Senator Tañada wants to run under BAYAN group and says that
he represents the farmers, would he qualify?

MR. VILLACORTA. No, Senator Tañada would not qualify.

MR. MONSOD. But UNIDO can field candidates under the party list system and say Juan
dela Cruz is a farmer. Who would pass on whether he is a farmer or not?
MR. TADEO. Kay Commissioner Monsod, gusto ko lamang linawin ito. Political parties,
particularly minority political parties, are not prohibited to participate in the party list
election if they can prove that they are also organized along sectoral lines.

MR. MONSOD. What the Commissioner is saying is that all political parties can participate
because it is precisely the contention of political parties that they represent the broad base of
citizens and that all sectors are represented in them. Would the Commissioner agree?

MR. TADEO. Ang punto lamang namin, pag pinayagan mo ang UNIDO na isang political
party, it will dominate the party list at mawawalang saysay din yung sector. Lalamunin mismo
ng political parties ang party list system. Gusto ko lamang bigyan ng diin ang "reserve." Hindi
ito reserve seat sa marginalized sectors. Kung titingnan natin itong 198 seats, reserved din
ito sa political parties.

MR. MONSOD. Hindi po reserved iyon kasi anybody can run there. But my question to
Commissioner Villacorta and probably also to Commissioner Tadeo is that under this
system, would UNIDO be banned from running under the party list system?

MR. VILLACORTA. No, as I said, UNIDO may field sectoral candidates. On that
condition alone, UNIDO may be allowed to register for the party list system.

MR. MONSOD. May I inquire from Commissioner Tadeo if he shares that answer?

MR. TADEO. The same.

MR. VILLACORTA. Puwede po ang UNIDO, pero sa sectoral lines.

MR. MONSOD: Sino po ang magsasabi kung iyong kandidato ng UNIDO ay hindi talagang
labor leader or isang laborer? Halimbawa, abogado ito.

MR. TADEO: Iyong mechanics.

MR. MONSOD: Hindi po mechanics iyon because we are trying to solve an inherent problem
of sectoral representation. My question is: Suppose UNIDO fields a labor leader, would he
qualify?

MR. TADEO: The COMELEC may look into the truth of whether or not a political party
is really organized along a specific sectoral line. If such is verified or confirmed, the
political party may submit a list of individuals who are actually members of such
sectors. The lists are to be published to give individuals or organizations belonging to
such sector the chance to present evidence contradicting claims of membership in
the said sector or to question the claims of the existence of such sectoral
organizations or parties. This proceeding shall be conducted by the COMELEC and
shall be summary in character. In other words, COMELEC decisions on this matter are
final and unappealable.52 (Emphasis supplied)

Indisputably, the framers of the 1987 Constitution intended the party-list system to include
not only sectoral parties but also non-sectoral parties. The framers intended the sectoral
parties to constitute a part, but not the entirety, of the party-list system. As explained by
Commissioner Wilfredo Villacorta, political parties can participate in the party-list
system "For as long as they field candidates who come from the different
marginalized sectors that we shall designate in this Constitution."53

In fact, the framers voted down, 19-22, a proposal to reserve permanent seats to sectoral
parties in the House of Representatives, or alternatively, to reserve the party-list system
exclusively to sectoral parties. As clearly explained by Justice Jose C. Vitug in his Dissenting
Opinion in Ang Bagong Bayani:

The draft provisions on what was to become Article VI, Section 5, subsection (2), of the 1987
Constitution took off from two staunch positions — the first headed by Commissioner
Villacorta, advocating that of the 20 per centum of the total seats in Congress to be allocated
to party-list representatives half were to be reserved to appointees from the marginalized and
underrepresented sectors. The proposal was opposed by some Commissioners. Mr. Monsod
expressed the difficulty in delimiting the sectors that needed representation. He was of the
view that reserving seats for the marginalized and underrepresented sectors would stunt
their development into full-pledged parties equipped with electoral machinery potent enough
to further the sectoral interests to be represented. The Villacorta group, on the other hand,
was apprehensive that pitting the unorganized and less-moneyed sectoral groups in an
electoral contest would be like placing babes in the lion's den, so to speak, with the bigger
and more established political parties ultimately gobbling them up. R.A. 7941 recognized this
concern when it banned the first five major political parties on the basis of party
representation in the House of Representatives from participating in the party-list system for
the first party-list elections held in 1998 (and to be automatically lifted starting with the 2001
elections). The advocates for permanent seats for sectoral representatives made an effort
towards a compromise — that the party-list system be open only to underrepresented and
marginalized sectors. This proposal was further whittled down by allocating only half of the
seats under the party-list system to candidates from the sectors which would garner the
required number of votes. The majority was unyielding. Voting 19-22, the proposal for
permanent seats, and in the alternative the reservation of the party-list system to the sectoral
groups, was voted down. The only concession the Villacorta group was able to muster was
an assurance of reserved seats for selected sectors for three consecutive terms after the
enactment of the 1987 Constitution, by which time they would be expected to gather and
solidify their electoral base and brace themselves in the multi-party electoral contest with the
more veteran political groups.54 (Emphasis supplied)

Thus, in the end, the proposal to give permanent reserved seats to certain sectors was
outvoted. Instead, the reservation of seats to sectoral representatives was only allowed for
the first three consecutive terms.55 There can be no doubt whatsoever that the framers of the
1987 Constitution expressly rejected the proposal to make the party-list system exclusively
for sectoral parties only, and that they clearly intended the party-list system to include both
sectoral and non-sectoral parties.

The common denominator between sectoral and non-sectoral parties is that they cannot
expect to win in legislative district elections but they can garner, in nationwide elections, at
least the same number of votes that winning candidates can garner in legislative district
elections. The party-list system will be the entry point to membership in the House of
Representatives for both these non-traditional parties that could not compete in legislative
district elections.

The indisputable intent of the framers of the 1987 Constitution to include in the party-list
system both sectoral and non-sectoral parties is clearly written in Section 5(1), Article VI of
the Constitution, which states:
Section 5. (1) The House of Representative shall be composed of not more that two hundred
and fifty members, unless otherwise fixed by law, who shall be elected from legislative
districts apportioned among the provinces, cities, and the Metropolitan Manila area in
accordance with the number of their respective inhabitants, and on the basis of a uniform
and progressive ratio, and those who, as provided by law, shall be elected through a
party-list system of registered national, regional, and sectoral parties or
organizations. (Emphasis supplied)

Section 5(1), Article VI of the Constitution is crystal-clear that there shall be "a party-list
system of registered national, regional, and sectoral parties or organizations." The
commas after the words "national," and "regional," separate national and regional parties
from sectoral parties. Had the framers of the 1987 Constitution intended national and
regional parties to be at the same time sectoral, they would have stated "national and
regional sectoral parties." They did not, precisely because it was never their intention to
make the party-list system exclusively sectoral.

What the framers intended, and what they expressly wrote in Section 5(1), could not be any
clearer: the party-list system is composed of three different groups, and the sectoral parties
belong to only one of the three groups. The text of Section 5(1) leaves no room for any doubt
that national and regional parties are separate from sectoral parties.

Thus, the party-list system is composed of three different groups: (1) national parties or
organizations; (2) regional parties or organizations; and (3) sectoral parties or organizations.
National and regional parties or organizations are different from sectoral parties or
organizations. National and regional parties or organizations need not be organized along
sectoral lines and need not represent any particular sector.

Moreover, Section 5(2), Article VI of the 1987 Constitution mandates that, during the first
three consecutive terms of Congress after the ratification of the 1987 Constitution, "one-half
of the seats allocated to party-list representatives shall be filled, as provided by law, by
selection or election from the labor, peasant, urban poor, indigenous cultural communities,
women, youth, and such other sectors as may be provided by law, except the religious
sector." This provision clearly shows again that the party-list system is not exclusively for
sectoral parties for two obvious reasons.

First, the other one-half of the seats allocated to party-list representatives would naturally be
open to non-sectoral party-list representatives, clearly negating the idea that the party-list
system is exclusively for sectoral parties representing the "marginalized and
underrepresented." Second, the reservation of one-half of the party-list seats to sectoral
parties applies only for the first "three consecutive terms after the ratification of this
Constitution," clearly making the party-list system fully open after the end of the first three
congressional terms. This means that, after this period, there will be no seats reserved for
any class or type of party that qualifies under the three groups constituting the party-list
system.

Hence, the clear intent, express wording, and party-list structure ordained in Section
5(1) and (2), Article VI of the 1987 Constitution cannot be disputed: the party-list
system is not for sectoral parties only, but also for non-sectoral parties.

Republic Act No. 7941 or the Party-List System Act, which is the law that implements the
party-list system prescribed in the Constitution, provides:
Section 3. Definition of Terms. (a) The party-list system is a mechanism of proportional
representation in the election of representatives to the House of Representatives from
national, regional and sectoral parties or organizations or coalitions thereof registered with
the Commission on Elections (COMELEC). Component parties or organizations of a coalition
may participate independently provided the coalition of which they form part does not
participate in the party-list system.

(b) A party means either a political party or a sectoral party or a coalition of

parties.

(c) A political party refers to an organized group of citizens advocating an

ideology or platform, principles and policies for the general conduct of
government and which, as the most immediate means of securing their
adoption, regularly nominates and supports certain of its leaders and members
as candidates for public office.

It is a national party when its constituency is spread over the geographical territory of
at least a majority of the regions. It is a regional party when its constituency is spread
over the geographical territory of at least a majority of the cities and provinces
comprising the region.

(d) A sectoral party refers to an organized group of citizens belonging to any of

the sectors enumerated in Section 5 hereof whose principal advocacy pertains
to the special interest and concerns of their sector.

(e) A sectoral organization refers to a group of citizens or a coalition of groups of

citizens who share similar physical attributes or characteristics, employment,
interests or concerns.

(f) A coalition refers to an aggrupation of duly registered national, regional, sectoral

parties or organizations for political and/or election purposes. (Emphasis supplied)

Section 3(a) of R.A. No. 7941 defines a "party" as "either a political party or a sectoral
party or a coalition of parties." Clearly, a political party is different from a sectoral party.
Section 3(c) of R.A. No. 7941 further provides that a "political party refers to an organized
group of citizens advocating an ideology or platform, principles and policies for the
general conduct of government." On the other hand, Section 3(d) of R.A. No. 7941
provides that a "sectoral party refers to an organized group of citizens belonging to any of
the sectors enumerated in Section 5 hereof whose principal advocacy pertains to the
special interest and concerns of their sector." R.A. No. 7941 provides different definitions
for a political and a sectoral party. Obviously, they are separate and distinct from each other.

R.A. No. 7941 does not require national and regional parties or organizations to
represent the "marginalized and underrepresented" sectors. To require all national and
regional parties under the party-list system to represent the "marginalized and
underrepresented" is to deprive and exclude, by judicial fiat, ideology-based and cause-
oriented parties from the party-list system. How will these ideology-based and cause-
oriented parties, who cannot win in legislative district elections, participate in the electoral
process if they are excluded from the party-list system? To exclude them from the party-list
system is to prevent them from joining the parliamentary struggle, leaving as their only option
the armed struggle. To exclude them from the party-list system is, apart from being obviously
senseless, patently contrary to the clear intent and express wording of the 1987 Constitution
and R.A. No. 7941.

Under the party-list system, an ideology-based or cause-oriented political party is clearly

different from a sectoral party. A political party need not be organized as a sectoral party and
need not represent any particular sector. There is no requirement in R.A. No. 7941 that a
national or regional political party must represent a "marginalized and underrepresented"
sector. It is sufficient that the political party consists of citizens who advocate the same
ideology or platform, or the same governance principles and policies, regardless of their
economic status as citizens.

Section 5 of R.A. No. 7941 states that "the sectors shall include labor, peasant, fisherfolk,
urban poor, indigenous cultural communities, elderly, handicapped, women,
youth, veterans, overseas workers, and professionals."56The sectors mentioned in Section
5 are not all necessarily "marginalized and underrepresented." For sure, "professionals" are
not by definition "marginalized and underrepresented," not even the elderly, women, and the
youth. However, professionals, the elderly, women, and the youth may "lack well-defined
political constituencies," and can thus organize themselves into sectoral parties in advocacy
of the special interests and concerns of their respective sectors.

Section 6 of R.A. No. 7941 provides another compelling reason for holding that the law does
not require national or regional parties, as well as certain sectoral parties in Section 5 of R.A.
No. 7941, to represent the "marginalized and underrepresented." Section 6 provides the
grounds for the COMELEC to refuse or cancel the registration of parties or organizations
after due notice and hearing.

Section 6. Refusal and/or Cancellation of Registration. — The COMELEC may, motu proprio
or upon verified complaint of any interested party, refuse or cancel, after due notice and
hearing, the registration of any national, regional or sectoral party, organization or coalition
on any of the following grounds:

(1) It is a religious sect or denomination, organization or association organized for

religious purposes;

(2) It advocates violence or unlawful means to seek its goal;

(3) It is a foreign party or organization;

(4) It is receiving support from any foreign government, foreign political party,
foundation, organization, whether directly or through any of its officers or members or
indirectly through third parties for partisan election purposes;

(5) It violates or fails to comply with laws, rules or regulations relating to elections;

(6) It declares untruthful statements in its petition;

(7) It has ceased to exist for at least one (1) year; or

(8) It fails to participate in the last two (2) preceding elections or fails to obtain at
least two per centum (2%) of the votes cast under the party-list system in the two (2)
preceding elections for the constituency in which it has registered.
None of the 8 grounds to refuse or cancel registration refers to non-representation of the
"marginalized and underrepresented."

The phrase "marginalized and underrepresented" appears only once in R.A. No. 7941, in
Section 2 on Declaration of Policy.57 Section 2 seeks "to promote proportional representation
in the election of representatives to the House of Representatives through the party-list
system," which will enable Filipinos belonging to the "marginalized and underrepresented
sectors, organizations and parties, and who lack well-defined political
constituencies," to become members of the House of Representatives. While the policy
declaration in Section 2 of R.A. No. 7941 broadly refers to "marginalized and
underrepresented sectors, organizations and parties," the specific implementing provisions
of R.A. No. 7941 do not define or require that the sectors, organizations or parties must be
"marginalized and underrepresented." On the contrary, to even interpret that all the sectors
mentioned in Section 5 are "marginalized and underrepresented" would lead to absurdities.

How then should we harmonize the broad policy declaration in Section 2 of R.A. No. 7941
with its specific implementing provisions, bearing in mind the applicable provisions of the
1987 Constitution on the matter?

The phrase "marginalized and underrepresented" should refer only to the sectors in
Section 5 that are, by their nature, economically "marginalized and
underrepresented." These sectors are: labor, peasant, fisherfolk, urban poor, indigenous
cultural communities, handicapped, veterans, overseas workers, and other similar
sectors. For these sectors, a majority of the members of the sectoral party must
belong to the "marginalized and underrepresented." The nominees of the sectoral
party either must belong to the sector, or must have a track record of advocacy for the
sector represented. Belonging to the "marginalized and underrepresented" sector does not
mean one must "wallow in poverty, destitution or infirmity." It is sufficient that one, or his or
her sector, is below the middle class. More specifically, the economically "marginalized and
underrepresented" are those who fall in the low income group as classified by the National
Statistical Coordination Board.58

The recognition that national and regional parties, as well as sectoral parties of
professionals, the elderly, women and the youth, need not be "marginalized and
underrepresented" will allow small ideology-based and cause-oriented parties who lack "well-
defined political constituencies" a chance to win seats in the House of Representatives. On
the other hand, limiting to the "marginalized and underrepresented" the sectoral parties for
labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped,
veterans, overseas workers, and other sectors that by their nature are economically at the
margins of society, will give the "marginalized and underrepresented" an opportunity to
likewise win seats in the House of Representatives.

This interpretation will harmonize the 1987 Constitution and R.A. No. 7941 and will give rise
to a multi-party system where those "marginalized and underrepresented," both in
economic and ideological status, will have the opportunity to send their own members to
the House of Representatives. This interpretation will also make the party-list system honest
and transparent, eliminating the need for relatively well-off party-list representatives to
masquerade as "wallowing in poverty, destitution and infirmity," even as they attend sessions
in Congress riding in SUVs.

The major political parties are those that field candidates in the legislative district elections.
Major political parties cannot participate in the party-list elections since they neither lack
"well-defined political constituencies" nor represent "marginalized and underrepresented"
sectors. Thus, the national or regional parties under the party-list system are
necessarily those that do not belong to major political parties. This automatically
reserves the national and regional parties under the party-list system to those who "lack well-
defined political constituencies," giving them the opportunity to have members in the House
of Representatives.

To recall, Ang Bagong Bayani expressly declared, in its second guideline for the
accreditation of parties under the party-list system, that "while even major political parties are
expressly allowed by RA 7941 and the Constitution to participate in the party-list system,
they must comply with the declared statutory policy of enabling ‘Filipino citizens belonging to
marginalized and underrepresented sectors xxx to be elected to the House of
Representatives.’ "However, the requirement in Ang Bagong Bayani, in its second guideline,
that "the political party xxx must represent the marginalized and underrepresented,"
automatically disqualified major political parties from participating in the party-list system.
This inherent inconsistency in Ang Bagong Bayani has been compounded by the
COMELEC’s refusal to register sectoral wings officially organized by major political parties.
BANAT merely formalized the prevailing practice when it expressly prohibited major
political parties from participating in the party-list system, even through their sectoral wings.

Section 11 of R.A. No. 7941 expressly prohibited the "first five (5) major political
parties on the basis of party representation in the House of Representatives at the start of
the Tenth Congress" from participating in the May 1988 party-list elections.59 Thus, major
political parties can participate in subsequent party-list elections since the prohibition
is expressly limited only to the 1988 party-list elections. However, major political parties
should participate in party-list elections only through their sectoral wings. The participation of
major political parties through their sectoral wings, a majority of whose members are
"marginalized and underrepresented" or lacking in "well-defined political constituencies," will
facilitate the entry of the "marginalized and underrepresented" and those who "lack well-
defined political constituencies" as members of the House of Representatives.

The 1987 Constitution and R.A. No. 7941 allow major political parties to participate in party-
list elections so as to encourage them to work assiduously in extending their constituencies
to the "marginalized and underrepresented" and to those who "lack well-defined political
constituencies." The participation of major political parties in party-list elections must be
geared towards the entry, as members of the House of Representatives, of the "marginalized
and underrepresented" and those who "lack well-defined political constituencies," giving
them a voice in law-making. Thus,to participate in party-list elections, a major political party
that fields candidates in the legislative district elections must organize a sectoral wing, like a
labor, peasant, fisherfolk, urban poor, professional, women or youth wing, that can register
under the party-list system.

Such sectoral wing of a major political party must have its own constitution, by-laws, platform
or program of government, officers and members, a majority of whom must belong to the
sector represented. The sectoral wing is in itself an independent sectoral party, and is linked
to a major political party through a coalition. This linkage is allowed by Section 3 of R.A. No.
7941, which provides that "component parties or organizations of a coalition may participate
independently (in party-list elections) provided the coalition of which they form part does not
participate in the party-list system."

Section 9 of R.A. No. 7941 prescribes the qualifications of party-list nominees. This provision
prescribes a special qualification only for the nominee from the youth sector.
Section 9. Qualifications of Party-List Nominees. No person shall be nominated as party-list
representative unless he is a natural-born citizen of the Philippines, a registered voter, a
resident of the Philippines for a period of not less than one (1) year immediately preceding
the day of the election, able to read and write, a bona fide member of the party or
organization which he seeks to represent for at least ninety (90) days preceding the day of
the election, and is at least twenty-five (25) years of age on the day of the election.

In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more
than thirty (30) years of age on the day of the election.

Any youth sectoral representative who attains the age of thirty (30) during his term shall be
allowed to continue in office until the expiration of his term.1âwphi1

A party-list nominee must be a bona fide member of the party or organization which he or
she seeks to represent. In the case of sectoral parties, to be a bona fide party-list
nominee one must either belong to the sector represented, or have a track record of
advocacy for such sector.

In disqualifying petitioners, the COMELEC used the criteria prescribed in Ang Bagong
Bayani and BANAT. Ang Bagong Bayani laid down the guidelines for qualifying those who
desire to participate in the party-list system:

First, the political party, sector, organization or coalition must represent the
marginalized and underrepresented groups identified in Section 5 of RA 7941. x x x

Second, while even major political parties are expressly allowed by RA 7941 and the
Constitution to participate in the party-list system, they must comply with the declared
statutory policy of enabling "Filipino citizens belonging to marginalized and underrepresented
sectors x x x to be elected to the House of Representatives." x x x.

xxxx

Third, x x x the religious sector may not be represented in the party-list system. x x x.

xxxx

Fourth, a party or an organization must not be disqualified under Section 6 of RA 7941,

which enumerates the grounds for disqualification as follows:

"(1) It is a religious sect or denomination, organization or association, organized for

religious purposes;

(2) It advocates violence or unlawful means to seek its goal;

(3) It is a foreign party or organization;

(4) It is receiving support from any foreign government, foreign political party,
foundation, organization, whether directly or through any of its officers or members or
indirectly through third parties for partisan election purposes;

(5) It violates or fails to comply with laws, rules or regulations relating to elections;
 (6) It declares untruthful statements in its petition;

(7) It has ceased to exist for at least one (1) year; or

(8) It fails to participate in the last two (2) preceding elections or fails to obtain at
least two per centum (2%) of the votes cast under the party-list system in the two (2)
preceding elections for the constituency in which it has registered."

Fifth, the party or organization must not be an adjunct of, or a project organized or an entity
funded or assisted by, the government. x x x.

xxxx

Sixth, the party must not only comply with the requirements of the law; its nominees must
likewise do so. Section 9 of RA 7941 reads as follows:

"SEC 9. Qualifications of Party-List Nominees. - No person shall be nominated as party-list

representative unless he is a natural-born citizen of the Philippines, a registered voter, a
resident of the Philippines for a period of not less than one (1)year immediately preceding
the day of the election, able to read and write, a bona fide member of the party or
organization which he seeks to represent for at least ninety (90) days preceding the day of
the election, and is at least twenty-five (25) years of age on the day of the election.

In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more
than thirty (30) years of age on the day of the election. Any youth sectoral representative
who attains the age of thirty (30) during his term shall be allowed to continue in office until
the expiration of his term."

Seventh, not only the candidate party or organization must represent marginalized
and underrepresented sectors; so also must its nominees. x x x.

Eighth, x x x the nominee must likewise be able to contribute to the formulation and
enactment of appropriate legislation that will benefit the nation as a whole. (Emphasis
supplied)

In 2009, by a vote of 8-7 in BANAT, this Court stretched the Ang Bagong Bayani ruling
further. In BANAT, the majority officially excluded major political parties from participating in
party-list elections,60 abandoning even the lip-service that Ang Bagong Bayani accorded to
the 1987 Constitution and R.A.No. 7941 that major political parties can participate in party-
list elections.

The minority in BANAT, however, believed that major political parties can participate in the
party-list system through their sectoral wings. The minority expressed that "[e]xcluding the
major political parties in party-list elections is manifestly against the Constitution, the intent of
the Constitutional Commission, and R.A. No. 7941. This Court cannot engage in socio-
political engineering and judicially legislate the exclusion of major political parties from the
party-list elections in patent violation of the Constitution and the law."61 The experimentations
in socio-political engineering have only resulted in confusion and absurdity in the party-list
system. Such experimentations, in clear contravention of the 1987 Constitution and R.A. No.
7941, must now come to an end.
We cannot, however, fault the COMELEC for following prevailing jurisprudence in
disqualifying petitioners. In following prevailing jurisprudence, the COMELEC could not have
committed grave abuse of discretion. However, for the coming 13 May 2013 party-list
elections, we must now impose and mandate the party-list system actually envisioned and
authorized under the 1987 Constitution and R.A. No. 7941. In BANAT, this Court devised a
new formula in the allocation of party-list seats, reversing the COMELEC's allocation which
followed the then prevailing formula in Ang Bagong Bayani. In BANAT, however, the Court
did not declare that the COMELEC committed grave abuse of discretion. Similarly, even as
we acknowledge here that the COMELEC did not commit grave abuse of discretion, we
declare that it would not be in accord with the 1987 Constitution and R.A. No. 7941 to apply
the criteria in Ang Bagong Bayani and BANAT in determining who are qualified to
participate in the coming 13 May 2013 party-list elections. For this purpose, we suspend
our rule62 that a party may appeal to this Court from decisions or orders of the COMELEC
only if the COMELEC committed grave abuse of discretion.

Thus, we remand all the present petitions to the COMELEC. In determining who may
participate in the coming 13 May 2013 and subsequent party-list elections, the COMELEC
shall adhere to the following parameters:

1. Three different groups may participate in the party-list system: (1) national parties
or organizations, (2) regional parties or organizations, and (3) sectoral parties or
organizations.

2. National parties or organizations and regional parties or organizations do not need

to organize along sectoral lines and do not need to represent any "marginalized and
underrepresented" sector.

3. Political parties can participate in party-list elections provided they register under
the party-list system and do not field candidates in legislative district elections. A
political party, whether major or not, that fields candidates in legislative district
elections can participate in party-list elections only through its sectoral wing that can
separately register under the party-list system. The sectoral wing is by itself an
independent sectoral party, and is linked to a political party through a coalition.

4. Sectoral parties or organizations may either be "marginalized and

underrepresented" or lacking in "well-defined political constituencies." It is enough
that their principal advocacy pertains to the special interest and concerns of their
sector. The sectors that are "marginalized and underrepresented" include labor,
peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped,
veterans, and overseas workers. The sectors that lack "well-defined political
constituencies" include professionals, the elderly, women, and the youth.

5. A majority of the members of sectoral parties or organizations that represent the

"marginalized and underrepresented" must belong to the "marginalized and
underrepresented" sector they represent. Similarly, a majority of the members of
sectoral parties or organizations that lack "well-defined political constituencies" must
belong to the sector they represent. The nominees of sectoral parties or
organizations that represent the "marginalized and underrepresented," or that
represent those who lack "well-defined political constituencies," either must belong to
their respective sectors, or must have a track record of advocacy for their respective
sectors. The nominees of national and regional parties or organizations must be
bona-fide members of such parties or organizations.
 6. National, regional, and sectoral parties or organizations shall not be disqualified if
some of their nominees are disqualified, provided that they have at least one
nominee who remains qualified.

The COMELEC excluded from participating in the 13 May 2013 party-list elections those that
did not satisfy these two criteria: (1) all national, regional, and sectoral groups or
organizations must represent the "marginalized and underrepresented" sectors, and (2) all
nominees must belong to the "marginalized and underrepresented" sector they represent.
Petitioners may have been disqualified by the COMELEC because as political or regional
parties they are not organized along sectoral lines and do not represent the "marginalized
and underrepresented." Also, petitioners' nominees who do not belong to the sectors they
represent may have been disqualified, although they may have a track record of advocacy
for their sectors. Likewise, nominees of non-sectoral parties may have been disqualified
because they do not belong to any sector. Moreover, a party may have been disqualified
because one or more of its nominees failed to qualify, even if the party has at least one
remaining qualified nominee. As discussed above, the disqualification of petitioners, and
their nominees, under such circumstances is contrary to the 1987 Constitution and R.A. No.
7941.

This Court is sworn to uphold the 1987 Constitution, apply its provisions faithfully, and desist
from engaging in socio-economic or political experimentations contrary to what the
Constitution has ordained. Judicial power does not include the power to re-write the
Constitution. Thus, the present petitions should be remanded to the COMELEC not because
the COMELEC committed grave abuse of discretion in disqualifying petitioners, but because
petitioners may now possibly qualify to participate in the coming 13 May 2013 party-list
elections under the new parameters prescribed by this Court.

WHEREFORE, all the present 54 petitions are GRANTED. The 13 petitions, which have
been granted Status Quo Ante Orders but without mandatory injunction to include the names
of petitioners in the printing of ballots, are remanded to the Commission on Elections only for
determination whether petitioners are qualified to register under the party-list system under
the parameters prescribed in this Decision but they shall not participate in the 13 May 2013
part-list elections. The 41 petitions, which have been granted mandatory injunctions to
include the names of petitioners in the printing of ballots, are remanded to the Commission
on Elections for determination whether petitioners are qualified to register under the party-list
system and to participate in the 13 May 2013 party-list elections under the parameters
prescribed in this Decision. The Commission on Elections may conduct summary evidentiary
hearings for this purpose. This Decision is immediately executory.

SO ORDERED.

G.R. Nos. 206844-45 July 23, 2013

COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE PHILIPPINES, INC.

(SENIOR CITIZENS PARTY-LIST), represented herein by its Chairperson and First
Nominee, FRANCISCO G. DATOL, Jr., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

x-----------------------x
G.R. No. 206982

COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE PHILIPPINES, INC.

(SENIOR CITIZENS), represented by its President and Incumbent Representative in the
House of Representatives, ATTY. GODOFREDO V. ARQUIZA, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

DECISION

LEONARDO-DE CASTRO, J.:

The present petitions were filed by the two rival factions within the same party-list
organization, the Coalition of Associations of Senior Citizens in the Phil., Inc. (SENIOR
CITIZENS) that are now praying for essentially the same reliefs from this Court.

One group is headed by Godofredo V. Arquiza (Rep. Arquiza), the organization’s incumbent
representative in the House of Representatives. This group shall be hereinafter referred to as
the Arquiza Group. The other group is led by Francisco G. Datol, Jr., the organization’s
erstwhile third nominee. This group shall be hereinafter referred to as the Datol Group.

G.R. Nos. 206844-45 is the Extremely Very Urgent Petition for Certiorari (With Prayer for the
Forthwith Issuance of a Writ of Preliminary Injunction and Temporary Restraining Order
[TRO] and/or Status Quo Ante Order [SQAO])1 filed in the name of SENIOR CITIZENS by
Francisco G. Datol, Jr. For brevity, we shall refer to this petition as the Datol Group’s petition.

G.R. No. 206982 is the Very Urgent Petition for Certiorari (With Application for a Temporary
Restraining Order and Writ of Preliminary Injunction)2 filed on behalf of SENIOR CITIZENS
by Rep. Arquiza. We shall refer to this as the Arquiza Group’s petition.

The above petitions were filed pursuant to Rule 643 in relation to Rule 654 of the Rules of
Court, both assailing the Omnibus Resolution5 dated May 10, 2013 of the Commission on
Elections (COMELEC) En Banc in SPP No. 12-157 (PLM) and SPP No. 12-191 (PLM). Said
Resolution disqualified SENIOR CITIZENS from participating in the May 13, 2013 elections
and ordered the cancellation of its registration and accreditation as a party-list organization.

THE ANTECEDENTS

On March 16, 2007, the COMELEC En Banc accredited SENIOR CITIZENS as a party-list
organization in a Resolution6 issued on even date in SPP No. 06-026 (PL).

SENIOR CITIZENS participated in the May 14, 2007 elections. However, the organization
failed to get the required two percent (2%) of the total votes cast.7 Thereafter, SENIOR
CITIZENS was granted leave to intervene in the case of Barangay Association for National
Advancement and Transparency (BANAT) v. Commission on Elections.8 In accordance with
the procedure set forth in BANAT for the allocation of additional seats under the party-list
system, SENIOR CITIZENS was allocated one seat in Congress. Rep. Arquiza, then the
organization’s first nominee, served as a member of the House of Representatives.

Subsequently, SENIOR CITIZENS was allowed to participate in the May 10, 2010 elections.
On May 5, 2010, the nominees of SENIOR CITIZENS signed an agreement, entitled
Irrevocable Covenant, the relevant terms of which we quote:

IRREVOCABLE COVENANT

KNOW ALL MEN BY THESE PRESENT

We, in representation of our respective personal capacity, hereby covenant and agree as
follows:

ARTICLE I
PARTIES AND PERSONS

1. ATTY. GODOFREDO V. ARQUIZA, of legal age, married, Filipino, and

residing at 1881 C.M. Recto Avenue, Sampaloc, Manila, and representing
the Senior Citizens Party-list in my capacity as President with our General
Headquarters at Room 404 West Trade Center, 132 West Avenue,
hereinafter referred to as the FIRST PARTY;

2. ATTY. DAVID L. KHO, of legal age, married, Filipino, and residing at 35

Quezon Avenue, Quezon City, hereinafter referred to as the SECOND
PARTY;

3. FRANCISCO G. DATOL, JR., of legal age, married, Filipino, and residing

at North Olympus Blk., 3, Lot 15 Ph4 Grieg St., Novaliches, Quezon City,
hereinafter referred to as the THIRD PARTY;

4. REMEDIOS D. ARQUIZA, of legal age, married, Filipino, and residing at

1881 C.M. Recto Avenue, Sampaloc, Manila, hereinafter referred to as the
FOURTH PARTY;

5. LINDA GADDI DAVID, of legal age, married, Filipino, and residing at 150
Don Francisco, St. Francis Vil., San Fernando, Pampanga City (sic)
hereinafter referred to as the FIFTH PARTY;

xxxx

ARTICLE III
THE LIST OF CANDIDATES

We agree that official candidates of the SENIOR CITIZENS PARTY-LIST and in the following
order shall be:

Name CTC No. Issued at Issued on

1. Godofredo V. Arquiza S.C.I.D.#2615256 Manila 04-02-04

2. David L. Kho 16836192 Quezon City 03-15-09

3. Francisco G. Datol, Jr. 27633197 Quezon City 02-10-10

 4. Remedios D. Arquiza S.C.I.D.#50696 Quezon City 01-02-07

5. Linda Gaddi David CCI2009 12306699 Pampanga 01-04-10

ARTICLE IV
SHARING OF POWER

The Nominees agreed and pledged on their legal and personal honor and interest as well as
the legal privileges and rights of the respective party-list offices, under the following
circumstances and events:

ELECTION RESULTS

Where only ONE (1) candidate qualifies and is proclaimed, then No. 1 shall assume the
Office of Party-list Representative in CONGRESS from July 1, 2010 to June 30, 2012 and
shall relinquish his seat in Congress by the proper and legal acts and No. 2 shall assume
said seat from July 1, 2012 to June 30, 2013;

In the event TWO (2) candidates qualify and are proclaimed, then, No. 1 shall serve for three
(3) years, and No. 2 and No. 3 will each serve for one-and-a-half years.

In the event THREE (3) candidates qualify and are proclaimed, then No. 1 shall serve for
three years; No. 2 will serve for two (2) years and afterwards shall relinquish the second seat
to No. 4 nominee, who will then serve for one (1) year; No. 3 will occupy the third seat for two
(2) years and afterwards shall relinquish said seat on the third year to Nominee 5, who will
serve for the remaining one (1) year.

In Fine:

If only one (1) seat is won
No. 1 nominee = 2 years
No. 2 nominee = 1 year
If two (2) seats are won
No. 1 nominee = 3 years
No. 2 nominee = 1½ years
No. 3 nominee = 1½ years
If three (3) seats are won:
No. 1 nominee = 3 years
No. 2 nominee = 2 years
No. 3 nominee = 2 years
No. 4 nominee = 1 year
No. 5 nominee = 1 year
All beginning July 1, 2010

SHARING OF RIGHTS
BENEFITS AND PRIVILEGES

That serving incumbent Congress Representative in the event one or more is elected and
qualified shall observe proper sharing of certain benefits by virtue of his position as such, to
include among others, appointment of persons in his office, projects which may redound to
the benefits and privileges that may be possible under the law.

The above mentioned parties shall oversee the implementation of this COVENANT.
IN WITNESS WHEREOF, the parties hereto have set their hands this MAY 05 2010 in
QUEZON CITY.

(Signed) (Signed)

Godofredo V. Arquiza David L. Kho

S.C.I.D. #2615256 Iss. at Manila CTC#16836192 Iss. at
on 04-02-04 Quezon City on 03-15-09

(Signed) (Signed)

Francisco G. Datol, Jr. Remedios D. Arquiza

CTC#16836192 Iss. at S.C.I.D.#50696 Iss. at
Quezon City on 03-15-09 Quezon City on 01-02-07

(Signed)

Linda Gaddi David

CTC#CCI2009 12306699 Iss. at
San Fernando, Pampanga on 01-04-109

After the conduct of the May 10, 2010 elections, SENIOR CITIZENS ranked second among
all the party-list candidates and was allocated two seats in the House of Representatives.
The first seat was occupied by its first nominee, Rep. Arquiza, while the second was given to
its second nominee, David L. Kho (Rep. Kho).

The split among the ranks of SENIOR CITIZENS came about not long after. According to the
Datol Group’s petition, the members of SENIOR CITIZENS held a national convention on
November 27, 2010 in order to address "the unfulfilled commitment of Rep. Arquiza to his
constituents."10 Further, a new set of officers and members of the Board of Trustees of the
organization were allegedly elected during the said convention. SENIOR CITIZENS’ third
nominee, Francisco G. Datol, Jr., was supposedly elected as the organization’s Chairman.
Thereafter, on November 30, 2010, in an opposite turn of events, Datol was expelled from
SENIOR CITIZENS by the Board of Trustees that were allied with Rep. Arquiza.11

Thenceforth, the two factions of SENIOR CITIZENS had been engaged in a bitter rivalry as
both groups, with their own sets of officers, claimed leadership of the organization.

The Resignation of Rep. Kho

On December 14, 2011, Rep. Arquiza informed the office of COMELEC Chairman Sixto S.
Brillantes, Jr. in a letter12 dated December 8, 2011 that the second nominee of SENIOR
CITIZENS, Rep. Kho, had tendered his resignation, which was to take effect on December
31, 2011. The fourth nominee, Remedios D. Arquiza, was to assume the vacant position in
view of the previous expulsion from the organization of the third nominee, Francisco G.
Datol, Jr.
The letter of Rep. Arquiza was also accompanied by a petition13 dated December 14, 2011 in
the name of SENIOR CITIZENS. The petition prayed that the "confirmation and approval of
the replacement of Congressman David L. Kho, in the person of the fourth nominee,
Remedios D. Arquiza, due to the expulsion of the third nominee, Francisco G. Datol, Jr., be
issued immediately in order to pave the way of her assumption into the office."14 Before the
COMELEC, the petition was docketed as E.M. No. 12-040.

Attached to the petition was the resignation letter15 of Rep. Kho, which was addressed to the
Speaker of the House of Representatives. The letter stated thus:

THE HONORABLE SPEAKER

House of Representatives
Congress
Republic of the Philippines
Quezon City

Sir:

I am hereby tendering my irrevocable resignation as Representative of the Senior Citizens

Party-list in the House of Representatives, effective December 31, 2011 in the event that
only two (2) seats are won by our party-list group; and will resign on June 30, 2012 in case
three seats are won.

As a consequence thereof, the Coalition of Associations of Senior Citizens in the Philippines,

Inc. shall nominate my successor pursuant to law and Rules on the matter.

Please accept my esteem and respect.

Truly yours,

(Signed)
Rep. David L. Kho
Party-list Congressman

Copy furnished:
The Board of Trustees
Coalition of Associations of Senior Citizens in the Philippines, Inc.16

According to the Datol Group, Rep. Kho submitted to them a letter dated December 31,
2011, notifying them of his resignation in this wise:

December 31, 2011

COALITION OF ASSOCIATIONS OF
SENIOR CITIZENS IN THE PHILS., INC.
Rm. 405, 4th Floor, WTC Building
132 West Avenue, Quezon City

Gentlemen/Ladies:
It is with deepest regret that I inform this esteemed organization of my decision to resign as
the party-list nominee for the House of Representatives this 15th Congress for personal
reason already conveyed to you.

Thank you for the opportunity to serve the Senior Citizens of our dear country.

Very truly yours,

(Signed)
DAVID L. KHO17

In the interim, during the pendency of E.M. No. 12-040, COMELEC Resolution No.
936618 was promulgated on February 21, 2012. Pertinently, Section 7 of Rule 4 thereof
provided that:

SEC. 7. Term sharing of nominees. Filing of vacancy as a result of term sharing agreement
among nominees of winning party-list groups/organizations shall not be allowed.

On March 12, 2012, the Board of Trustees of SENIOR CITIZENS that were allied with Rep.
Arquiza issued Board Resolution No. 003-2012, which pertinently stated thus:

BOARD RESOLUTION NO. 003-2012

Series of 2012

A RESOLUTION RECALLING THE ACCEPTANCE OF THE BOARD IN RESOLUTION NO.

11-0012 OF THE RESIGNATION OF CONGRESSMAN DAVID L. KHO AND ALLOWING
HIM TO CONTINUE REPRESENTING THE SENIOR CITIZENS PARTY-LIST IN THE
HOUSE OF REPRESENTATIVES, ALLOWING HIM TO CONTINUE HIS TERM AND
IMPOSING CERTAIN CONDITIONS ON HIM TO BE PERFORMED WITH THE COALITION;

WHEREAS, the second nominee, Congressman David L. Kho, tendered his resignation as
representative of the Senior Citizens Party-list effective December 31, 2011, x x x;

WHEREAS, the said resignation was accepted by the Board of Trustees in a resolution
signed unanimously, in view of the nature of his resignation, and in view of his determination
to resign and return to private life, x x x;

WHEREAS, after much deliberation and consultation, the said nominee changed his mind
and requested the Board of Trustees to reconsider the acceptance, for he also reconsidered
his resignation, and requested to continue his term;

WHEREAS, in consideration of all factors affecting the party-list and in view of the
forthcoming elections, the Board opted to reconsider the acceptance, recall the same, and
allow Cong. David L. Kho to continue his term;

WHEREAS, the Coalition, in recalling the acceptance of the Board, is however imposing
certain conditions on Cong. Kho to be performed;

NOW THEREFORE, BE IT RESOLVED, AS IT IS HEREBY RESOLVED to recall the

acceptance of the resignation of Congressman David L. Kho in view of his request and
change of mind, hence allow him to continue his term subject to conditions stated above.19
Thereafter, on April 18, 2012, the COMELEC En Banc conducted a hearing on SENIOR
CITIZENS’ petition in E.M. No. 12-040. At the hearing, the counsel for SENIOR CITIZENS
(Arquiza Group) admitted that Rep. Kho’s tender of resignation was made pursuant to the
agreement entered into by the organization’s nominees.20 However, said counsel also stated
that the Board of Trustees of the organization reconsidered the acceptance of Rep. Kho’s
resignation and the latter was, instead, to complete his term.21 Also, from the transcript of the
hearing, it appears that the Arquiza Group previously manifested that it was withdrawing its
petition, but the same was opposed by the Datol Group and was not acted upon by the
COMELEC.22

On June 27, 2012, the COMELEC En Banc issued a Resolution23 in E.M. No. 12-040,
dismissing the petition of the SENIOR CITIZENS (Arquiza Group). The pertinent portions of
the Resolution stated, thus:

First, resignation of Kho,

pursuant to the party nominees’
term-sharing agreement, cannot
be recognized and be given effect
so as to create a vacancy in the
list and change the order of the
nominees.

Under Section 8 of Republic Act No. 7941, the withdrawal in writing of the nominee of his
nomination is one of the three (3) exemptions to the rule that "no change of names or
alteration of the order of nominees shall be allowed after the same shall have been
submitted to the COMELEC." While we can consider the resignation of Rep. Kho as akin to
the withdrawal of his own nomination, we are constrained however NOT to recognize such
resignation but only in so far as to change the order of petitioner’s nominees as submitted to
the Commission.

xxxx

Considering that it is an admitted fact that the resignation of Rep. Kho was made by virtue of
a prior agreement of the parties, we resolve and hereby rule that we cannot recognize such
arrangement and accordingly we cannot approve the movement in the order of nominees for
being contrary to public policy. The term of office of public officials cannot be made subject to
any agreement of private parties. Public office is not a commodity that can be shared,
apportioned or be made subject of any private agreement. Public office is vested with public
interest that should not be reined by individual interest.

In fact, to formalize the policy of disallowing term sharing agreements among party list
nominees, the Commission recently promulgated Resolution No. 9366, which provides:

"SEC. 7. Term sharing of nominees. – Filing of vacancy as a result of term sharing

agreement among nominees of winning party-list groups/organizations shall not be allowed."

Considering all these, we find the term sharing agreement by the nominees of the Senior
Citizen’s Party-List null and void. Any action committed by the parties in pursuit of such term-
sharing arrangement—including the resignation of Congressman David Kho—cannot be
recognized and be given effect. Thus, in so far as this Commission is concerned, no vacancy
was created by the resignation of Rep. Kho and there can be no change in the list and order
of nominees of the petitioner party-list.
Second, the expulsion of Datol –
even if proven true – has no effect
in the list and in the order of
nominees, thus Remedios Arquiza
(the fourth nominee) cannot be
elevated as the third nominee.

xxxx

It must be noted that the list and order of nominees, after submission to this Commission, is
meant to be permanent. The legislature in crafting Republic Act No. 7941 clearly deprived
the party-list organization of the right to change its nominees or to alter the order of
nominees once the list is submitted to the COMELEC, except for three (3) enumerated
instances such as when: (a) the nominee dies; (b) the nominee withdraws in writing his
nomination; or (c) the nominee becomes incapacitated.

xxxx

Thus, even if the expulsion of Datol in the petitioner party-list were true, the list and order of
nominees of the Senior Citizen’s party-list remains the same in so far as we are concerned
as it does not fall under one of the three grounds mentioned above. Neither does it have an
automatic effect on the organization’s representative in the House of Representatives, for
once a party-list nominee is "elected" into office and becomes a member of the House, he is
treated similarly and equally with the regular district representatives. As such, they can only
be expelled or suspended upon the concurrence of the two-thirds of all its Members and
never by mere expulsion of a party-list organization.

xxxx

WHEREFORE, there being no vacancy in the list of nominees of the petitioner organization,
the instant petition is hereby DISMISSED for lack of merit. The list and order of nominees of
petitioner hereby remains the same as it was submitted to us there being no legally
recognizable ground to cause any changes thereat.24 (Citation omitted.)

The Datol Group filed A Very Urgent Motion for Reconsideration25 of the above resolution,
but the same remained unresolved.

The Review of SENIOR CITIZENS’ Registration

Meanwhile, the Datol Group and the Arquiza Group filed their respective Manifestations of
Intent to Participate in the Party-list System of Representation in the May 13, 2013 Elections
under the name of SENIOR CITIZENS.26 The Manifestation of the Datol Group was docketed
as SPP

No. 12-157 (PLM), while that of the Arquiza Group was docketed as SPP No. 12-191 (PLM).

On August 2, 2012, the COMELEC issued Resolution No. 9513,27 which, inter alia, set for
summary evidentiary hearings by the COMELEC En Banc the review of the registration of
existing party-list organizations, which have filed their Manifestations of Intent to Participate
in the Party-list System of Representation in the May 13, 2013 Elections.
The two factions of SENIOR CITIZENS appeared before the COMELEC En Banc on August
24, 2012 and they both submitted their respective evidence, which established their
continuing compliance with the requirements of accreditation as a party-list organization.28

On December 4, 2012, the COMELEC En Banc issued a Resolution29 in SPP Nos. 12-157
(PLM) and 12-191 (PLM). By a vote of 4-3, the COMELEC En Banc ordered the cancellation
of the registration of SENIOR CITIZENS. The resolution explained that:

It shall be recalled that on June 27, 2012, this Commission promulgated its resolution in a
petition that involved SENIOR CITIZENS titled "In Re: Petition for Confirmation of
Replacement of Resigned PartyList Nominee" and docketed as EM No. 12-040. In the
process of resolving the issues of said case, this Commission found that SENIOR CITIZENS
nominees specifically nominees David L. Kho and Francisco G. Datol, Jr. have entered into a
term-sharing agreement. x x x.

Nominee David Kho’s term as party-list congressman is three (3) years which starts on June
30, 2010 and to end on June 30, 2013 as directed no less than by the Constitution of the
Philippines. Section 7, Article VI of the 1987 Constitution states:

"Sec. 7. The Members of the House of Representatives shall be elected for a term of three
years which shall begin, unless otherwise provided by law, at noon on the thirtieth day of
June next following their election."

But following the term-sharing agreement entered into by SENIOR CITIZENS, David Kho’s
term starts on June 30, 2010 and ends on December 31, 2011, the date of effectivity of
Kho’s resignation. By virtue of the term-sharing agreement, the term of Kho as member of
the House of Representatives is cut short to one year and six months which is merely half of
the three-year term. This is totally opposed to the prescription of the Constitution on the term
of a Member of the House of Representatives. Hence, when confronted with this issue on
term sharing done by SENIOR CITIZENS, this Commission made a categorical
pronouncement that such term-sharing agreement must be rejected.

xxxx

From the foregoing, SENIOR CITIZENS failed to comply with Section 7, Article VI of the
1987 Constitution and Section 7, Rule 4 of Comelec Resolution No. 9366. This failure is a
ground for cancellation of registration under Section 6 of Republic Act No. 7941 which states:

"Section 6. Refusal and/or Cancellation of Registration. – The COMELEC may, motu proprio
or upon verified complaint of any interested party, refuse or cancel, after due notice and
hearing, the registration of any national, regional or sectoral party, organization or coalition
on any of the following grounds:

xxxx

(5) It violates or fails to comply with laws, rules or regulations relating to elections;

xxxx
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby
RESOLVES, to CANCEL the registration of Coalition of Associations of Senior Citizens in the
Philippines (SENIOR CITIZENS) under the Party-List System of Representation.

The rival factions of SENIOR CITIZENS challenged the above resolution before this Court by
filing their respective petitions for certiorari. The petition filed by the Datol Group was
docketed as G.R. No. 204421, while the petition of the Arquiza Group was docketed as G.R.
No. 204425.

On December 11, 2012, the Court initially granted status quo ante orders on said petitions,
directing the COMELEC to include the name of SENIOR CITIZENS in the printing of official
ballots for the May 13, 2013 party-list elections. Eventually, both petitions were consolidated
with the petition in Atong Paglaum, Inc. v. Commission on Elections, which was docketed as
G.R. No. 203766.

On April 2, 2013, the Court promulgated its Decision in Atong Paglaum, which ordered the
remand to the COMELEC of the petitions that have been granted mandatory injunctions to
include the names of the petitioners in the printing of ballots. Following the parameters set
forth in the Court’s Decision, the COMELEC was to determine whether said petitioners,
which included the two factions of SENIOR CITIZENS, were qualified to register under the
party-list system and to participate in the May 13, 2013 elections. For this purpose, the Court
stated that the COMELEC may conduct summary evidentiary hearings.

Thereafter, on May 10, 2013, the COMELEC En Banc rendered the assailed Omnibus
Resolution in SPP Nos. 12-157 (PLM) and 12-191 (PLM), ruling in this wise:

Guided by these six new parameters [enunciated by the Court in Atong Paglaum, Inc. v.
Commission on Elections], as well as the provisions of the Constitution, Republic Act No.
7941 ("R.A. No. 7941") or the Party-List System Act, and other pertinent election laws, and
after a careful and exhaustive reevaluation of the documents submitted by the petitioners per
their compliance with Resolution No. 9513 ("Res. No. 9513"), the Commission En Banc
RESOLVES as follows:

I. SPP Nos. 12-157 (PLM) & 12-191 (PLM) – SENIOR CITIZENS

To DENY the Manifestations of Intent to Participate, and to CANCEL the registration and
accreditation, of petitioner Senior Citizens, for violating laws, rules, and regulations relating
to elections pursuant to Section 6 (5) of R.A. No. 7941.

The Commission En Banc finds no cogent reason to reverse its earlier finding in the
Resolution for SPP Nos. 12-157 (PLM) & 12-191 (PLM) promulgated on 04 December 2012,
in relation to the Resolution for E.M. No. 12-040 promulgated on 27 June 2012. The sole
ground for which the petitioner Senior Citizens was disqualified was because of the term-
sharing agreement between its nominees, which the Commission En Banc found to be
contrary to public policy. It will be noted that this ground is independent of the six parameters
in Atong Paglaum, and there is nothing in the doctrine enunciated in that case which will
absolve the petitioner Senior Citizen of what, to the Commission En Banc, is a clear
bastardization of the term of office fixed by Section 7, Article VI of the Constitution as
implemented by Section 14 of R.A. No. 7941, which expressly provides that Members of the
House of Representatives, including party-list representatives, shall be elected for a term of
three years. A term, in the legal sense, is a fixed and definite period of time during which an
officer may claim to hold office as a matter of right, a fixed interval after which the several
incumbents succeed one another. Thus, service of the term is for the entire period; it cannot
be broken down to accommodate those who are not entitled to hold the office.

That the term-sharing agreement was made in 2010, while the expression of the policy
prohibiting it was promulgated only in 2012 via Section 7, Rule 4 of Resolution No. 9366
("Res. No. 9366"), is of no moment. As it was in 2010 as it is now, as it was in 1987 when the
Constitution was ratified and as it was in 1995 when R.A. No. 7941 was enacted into law, the
agreement was and is contrary to public policy because it subjects a Constitutionally-
ordained fixed term to hold public elective office to contractual bargaining and negotiation,
and treats the same as though it were nothing more than a contractual clause, an object in
the ordinary course of the commerce of men. To accept this defense will not only open the
floodgates to unscrupulous individuals, but more importantly it will render inutile Section 16
of R.A. No. 7941 which prescribes the procedure to be taken to fill a vacancy in the available
seats for a party-list group or organization. For this mistake, the petitioner Senior Citizens
cannot hide behind the veil of corporate fiction because the corporate veil can be pierced if
necessary to achieve the ends of justice or equity, such as when it is used to defeat public
convenience, justify wrong, or protect fraud. It further cannot invoke the prohibition in the
enactment of ex post facto laws under Section 22, Article III of the Constitution because the
guarantee only the retrospectivity of penal laws and definitely, Reso. No. 9366 is not penal in
character.

From the foregoing, the cancellation of the registration and accreditation of the petitioner
Senior Citizens is therefore in order, and consequently, the two Manifestations of Intent to
Participate filed with the Commission should be denied.

xxxx

WHEREFORE, the Commission En Banc RESOLVES:

A. To DENY the Manifestations of Intent to Participate, and CANCEL the registration and
accreditation, of the following parties, groups, or organizations:

(1) SPP No. 12-157 (PLM) & SPP No. 12-191 (PLM) – Coalition of Associations of Senior
Citizens in the Philippines, Inc.;

xxxx

Accordingly, the foregoing shall be REMOVED from the registry of party-list groups and
organizations of the Commission, and shall NOT BE ALLOWED to PARTICIPATE as a
candidate for the Party-List System of Representation for the 13 May 2013 Elections and
subsequent elections thereafter.30 (Citations omitted.)

On May 13, 2013, the elections proceeded. Despite the earlier declaration of its
disqualification, SENIOR CITIZENS still obtained 677,642 votes.

Questioning the cancellation of SENIOR CITIZENS’ registration and its disqualification to

participate in the May 13, 2013 elections, the Datol Group and the Arquiza Group filed the
instant petitions.

On May 15, 2013, the Datol Group filed a Very2 Urgent Motion to Reiterate Issuance of
Temporary Restraining Order and/or Status Quo Ante Order,31 alleging that the COMELEC
had ordered the stoppage of the counting of votes of the disqualified party-list groups. The
Datol Group urged the Court to issue a TRO and/or a status quo ante order during the
pendency of its petition.

Meanwhile, on May 24, 2013, the COMELEC En Banc issued a Resolution,32 which
considered as final and executory its May 10, 2013 Resolution that cancelled the registration
of SENIOR CITIZENS. On even date, the COMELEC En Banc, sitting as the National Board
of Canvassers (NBOC), promulgated NBOC Resolution No. 0006-13,33 proclaiming fourteen
(14) party-list organizations as initial winners in the party-list elections of May 13, 2013.

The Arquiza Group filed on May 27, 2013 a Supplement to the "Very Urgent Petition for
Certiorari,"34 also reiterating its application for a TROand a writ of preliminary injunction.

On May 28, 2013, the COMELEC En Banc issued NBOC Resolution No. 0008-13,35 which
partially proclaimed the winning party-list organizations that filled up a total of fifty-three (53)
out of the available fifty-eight (58) seats for party-list organizations.

On May 29, 2013, the Chief Justice issued a TRO,36 which ordered the COMELEC to submit
a Comment on the instant petitions and to cease and desist from further proclaiming the
winners from among the party-list candidates in the May 13, 2013 elections.

On June 3, 2013, the Datol Group filed a Most Urgent Motion for Issuance of an Order
Directing Respondent to Proclaim Petitioner Pendente Lite.37

In a Resolution38 dated June 5, 2013, the Court issued an order, which directed the
COMELEC to refrain from implementing the assailed Omnibus Resolution dated May 10,
2013 in SPP No. 12-157 (PLM) and SPP No. 12-191 (PLM), insofar as SENIOR CITIZENS
was concerned and to observe the status quo ante before the issuance of the assailed
COMELEC resolution. The Court likewise ordered the COMELEC to reserve the seat(s)
intended for SENIOR CITIZENS, in accordance with the number of votes it garnered in the
May 13, 2013 Elections. The Court, however, directed the COMELEC to hold in abeyance
the proclamation insofar as SENIOR CITIZENS is concerned until the instant petitions are
decided. The Most Urgent Motion for Issuance of an Order Directing Respondent to Proclaim
Petitioner Pendente Lite filed by the Datol Group was denied for lack of merit.

On June 7, 2013, the COMELEC, through the Office of the Solicitor General (OSG), filed a
Comment39 on the instant petitions. In a Resolution40 dated June 10, 2013, the Court required
the parties to submit their respective memoranda. On June 19, 2013, the Arquiza Group filed
its Reply41 to the Comment of the COMELEC. Subsequently, the Datol Group and the
Arquiza Group filed their separate memoranda.42 On the other hand, the OSG
manifested43 that it was adopting its Comment as its memorandum in the instant case.

THE ISSUES

The Datol Group’s memorandum raised the following issues for our consideration:

IV. STATEMENT OF THE ISSUES

4.1
WHETHER OR NOT RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT ADDED
ANOTHER GROUND (VIOLATION OF PUBLIC POLICY) FOR CANCELLATION OF
REGISTRATION OF A PARTY–LIST GROUP AS PROVIDED UNDER SECTION 6,
REPUBLIC ACT NO. 7941.

4.2

WHETHER OR NOT RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT
CANCELLED PETITIONER’S CERTIFICATE OF REGISTRATION/ACCREDITATION
WITHOUT DUE PROCESS OF LAW.

4.3

WHETHER OR NOT RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT
CONCLUDED THAT PETITIONER VIOLATED PUBLIC POLICY ON TERM SHARING.

4.4

WHETHER OR NOT RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT
ORDERED THE AUTOMATIC REVIEW BY THE EN BANC OF THE
REGISTRATION/ACCREDITATION GRANTED BY ITS DIVISION, NOTWITHSTANDING
THE CONSTITUTIONAL PROVISION THAT THE EN BANC CAN ONLY REVIEW
DECISIONS OF THE DIVISION UPON FILING OF A MOTION FOR
RECONSIDERATION.44 (Citation omitted.)

Upon the other hand, the memorandum of the Arquiza Group brought forward the following
arguments:

4.1. Whether or not COMELEC EN BANC RESOLUTION of MAY 10, 2013 is invalid
for being contrary to law and having been issued without or in excess of jurisdiction
or in grave abuse of discretion amounting to lack of jurisdiction?

(1) The Comelec En Banc Resolution of May 10, 2013 was issued pursuant
to the directive of the Supreme Court in Atong Paglaum. Therefore, the
SUBSIDIARY ISSUES arising therefrom are:

a. Are there guidelines prescribed in Atong Paglaum to be followed

by respondent Comelec in determining which partylist groups are
qualified to participate in party-list elections?

b. If there are these guidelines to be followed, were these adhered to

by respondent Comelec?

(2) Is the ground -- the Term-Sharing Agreement between Senior Citizens

nominees -- a legal ground to cancel Senior Citizens’ Certificate of
Registration?
4.2. Whether or not COMELEC EN BANC RESOLUTION of MAY 24, 2013 is invalid
for being contrary to law and having been issued without or in excess of jurisdiction
or in grave abuse of discretion amounting to lack of jurisdiction?

(1) The SUBSIDIARY ISSUES are:

a. Is the factual basis thereof valid?

b. Has the Comelec En Banc Resolution of May 20, 2013, in fact, become
final and executory?

4.3. Whether or not NATIONAL BOARD of CANVASSERS’ (NBOC) RESOLUTION

No. 0006-13 of MAY 24, 2013 is invalid for being contrary to law and having been
issued without or in excess of jurisdiction or grave abuse of discretion amounting to
lack of jurisdiction?

(1) The SUBSIDIARY ISSUES are:

a. Is the factual basis thereof valid?

b. Is the total of the party-list votes cast which was made as the basis thereof
correct?

c. Has the Justice Carpio Formula prescribed in Banat vs. Comelec been
followed?

4.4. Whether or not NBOC RESOLUTION No. 0008-13 of MAY 28, 2013 is invalid for
being contrary to law and having been issued without or in excess of jurisdiction or in
grave abuse of discretion amounting to lack of jurisdiction?

(1) The SUBSIDIARY ISSUES are identical with those of Issue No. 4.3, namely:

a. Is the factual basis thereof valid?

b. Is the total of the party-list votes cast which was made as the basis thereof
correct?

c. Has the Justice Carpio Formula prescribed in Banat vs. Comelec been
followed?

4.5. What is the cardinal rule in interpreting laws/rules on qualifications and

disqualifications of the candidates after the election where they have received the
winning number of votes?

4.6. May the COMELEC En Banc Resolutions of May 10 and 24, 2013 and NBOC
Resolutions of May 24 and 28, 2013 be annulled and set aside?45

THE COURT’S RULING

After reviewing the parties’ pleadings, as well as the various resolutions attached thereto, we
find merit in the petitioners’ contentions.1âwphi1

SENIOR CITIZENS’ Right to Due Process

First, we shall dispose of the procedural issue. In their petitions, the two rival groups of
SENIOR CITIZENS are actually one in asserting that the organization’s disqualification and
cancellation of its registration and accreditation were effected in violation of its right to due
process.

The Arquiza Group argues that no notice and hearing were given to SENIOR CITIZENS for
the cancellation of its registration on account of the term-sharing agreement of its nominees.
The Arquiza Group maintains that SENIOR CITIZENS was summoned only to a single
hearing date in the afternoon of August 24, 2012 and the COMELEC’s review therein
focused on the group’s programs, accomplishments, and other related matters. The Arquiza
Group asserts that SENIOR CITIZENS was not advised, before or during the hearing, that
the issue of the term-sharing agreement would constitute a basis for the review of its
registration and accreditation.

Likewise, the Datol Group faults the COMELEC for cancelling the registration and
accreditation of SENIOR CITIZENS without giving the latter the opportunity to show that it
complied with the parameters laid down in Atong Paglaum. The Arquiza Group confirms that
after the promulgation of Atong Paglaum, the COMELEC conducted summary hearings in
executive sessions, without informing SENIOR CITIZENS. The Arquiza Group says that it
filed a "Very Urgent Motion To Set Case For Hearing Or To Be Included In The Hearing Set
On Thursday, May 9, 2013," but its counsel found that SENIOR CITIZENS was not included
in the hearings wherein other party-list groups were heard by the COMELEC. The Arquiza
Group subsequently filed on May 10, 2013 a "2nd Very Urgent Motion To Set Case For
Public Hearing," but the same was also not acted upon. The Arquiza Group alleges that it
only found out after the elections that the assailed May 10, 2013 Omnibus Resolution was
issued and the Arquiza Group was not actually served a copy thereof.

Section 6 of Republic Act No. 794146 provides for the procedure relative to the review of the
registration of party-list organizations, to wit:

SEC. 6. Refusal and/or Cancellation of Registration. – The COMELEC may, motu proprio or
upon verified complaint of any interested party, refuse or cancel, after due notice and
hearing, the registration of any national, regional or sectoral party, organization or coalition
on any of the following grounds:

(1) It is a religious sect or denomination, organization or association organized for

religious purposes;

(2) It advocates violence or unlawful means to seek its goal;

(3) It is a foreign party or organization;

(4) It is receiving support from any foreign government, foreign political party,
foundation, organization, whether directly or through any of its officers or members or
indirectly through third parties for partisan election purposes;
 (5) It violates or fails to comply with laws, rules or regulations relating to elections;

(6) It declares untruthful statements in its petition;

(7) It has ceased to exist for at least one (1) year; or

(8) It fails to participate in the last two (2) preceding elections or fails to obtain at
least two per centum (2%) of the votes cast under the party-list system in the two (2)
preceding elections for the constituency in which it has registered.

Unquestionably, the twin requirements of due notice and hearing are indispensable before
the COMELEC may properly order the cancellation of the registration and accreditation of a
party-list organization. In connection with this, the Court lengthily discussed in Mendoza v.
Commission on Elections47 the concept of due process as applied to the COMELEC. We
emphasized therein that:

The appropriate due process standards that apply to the COMELEC, as an administrative or
quasi-judicial tribunal, are those outlined in the seminal case of Ang Tibay v. Court of
Industrial Relations, quoted below:

(1) The first of these rights is the right to a hearing, which includes the right of the
party interested or affected to present his own case and submit evidence in support
thereof. x x x.

(2) Not only must the party be given an opportunity to present his case and to
adduce evidence tending to establish the rights which he asserts but the tribunal
must consider the evidence presented.

(3) While the duty to deliberate does not impose the obligation to decide right, it does
imply a necessity which cannot be disregarded, namely, that of having something to
support its decision. A decision with absolutely nothing to support it is a nullity, a
place when directly attached.

(4) Not only must there be some evidence to support a finding or conclusion, but the
evidence must be "substantial." "Substantial evidence is more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion."

(5) The decision must be rendered on the evidence presented at the hearing, or at
least contained in the record and disclosed to the parties affected.

(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or
his own independent consideration of the law and facts of the controversy, and not
simply accept the views of a subordinate in arriving at a decision.

(7) The Court of Industrial Relations should, in all controversial questions, render its
decision in such a manner that the parties to the proceeding can know the various
issues involved, and the reasons for the decisions rendered. The performance of this
duty is inseparable from the authority conferred upon it.
These are now commonly referred to as cardinal primary rights in administrative
proceedings.

The first of the enumerated rights pertain to the substantive rights of a party at hearing stage
of the proceedings. The essence of this aspect of due process, we have consistently held, is
simply the opportunity to be heard, or as applied to administrative proceedings, an
opportunity to explain one’s side or an opportunity to seek a reconsideration of the action or
ruling complained of. A formal or trial-type hearing is not at all times and in all instances
essential; in the case of COMELEC, Rule 17 of its Rules of Procedure defines the
requirements for a hearing and these serve as the standards in the determination of the
presence or denial of due process.

The second, third, fourth, fifth, and sixth aspects of the Ang Tibay requirements are
reinforcements of the right to a hearing and are the inviolable rights applicable at the
deliberative stage, as the decision-maker decides on the evidence presented during the
hearing. These standards set forth the guiding considerations in deliberating on the case and
are the material and substantial components of decision-making. Briefly, the tribunal must
consider the totality of the evidence presented which must all be found in the records of the
case (i.e., those presented or submitted by the parties); the conclusion, reached by the
decision-maker himself and not by a subordinate, must be based on substantial evidence.

Finally, the last requirement, relating to the form and substance of the decision of a quasi-
judicial body, further complements the hearing and decision-making due process rights and
is similar in substance to the constitutional requirement that a decision of a court must state
distinctly the facts and the law upon which it is based. As a component of the rule of fairness
that underlies due process, this is the "duty to give reason" to enable the affected person to
understand how the rule of fairness has been administered in his case, to expose the reason
to public scrutiny and criticism, and to ensure that the decision will be thought through by the
decision-maker. (Emphases ours, citations omitted.)

In the instant case, the review of the registration of SENIOR CITIZENS was made pursuant
to COMELEC Resolution No. 9513 through a summary evidentiary hearing carried out on
August 24, 2012 in SPP No. 12-157 (PLM) and SPP No. 12-191 (PLM). In this hearing, both
the Arquiza Group and the Datol Group were indeed given the opportunity to adduce
evidence as to their continuing compliance with the requirements for party-list accreditation.
Nevertheless, the due process violation was committed when they were not apprised of the
fact that the term-sharing agreement entered into by the nominees of SENIOR CITIZENS in
2010 would be a material consideration in the evaluation of the organization’s qualifications
as a party-list group for the May 13, 2013 elections. As it were, both factions of SENIOR
CITIZENS were not able to answer this issue squarely. In other words, they were deprived of
the opportunity to adequately explain their side regarding the term-sharing agreement and/or
to adduce evidence, accordingly, in support of their position.

In its Comment48 to the petitions, the COMELEC countered that petitioners were actually
given the opportunity to present their side on the issue of the term-sharing agreement during
the hearing on April 18, 2012.49 Said hearing was allegedly conducted to determine
petitioners’ continuing compliance for accreditation as a party-list organization.

The Court is not persuaded. It is true that during the April 18, 2012 hearing, the rival groups
of SENIOR CITIZENS admitted to the existence of the term-sharing agreement. Contrary to
the claim of COMELEC, however, said hearing was conducted for purposes of discussing
the petition of the Arquiza Group in E.M. No. 12-040. To recall, said petition asked for the
confirmation of the replacement of Rep. Kho, who had tendered his resignation effective on
December 31, 2011. More specifically, the transcript of the hearing reveals that the focus
thereof was on the petition filed by the Arquiza group and its subsequent manifestation,
praying that the group be allowed to withdraw its petition. Also, during the hearing,
COMELEC Chairman Brillantes did admonish the rival factions of SENIOR CITIZENS about
their conflicts and warned them about the complications brought about by their term-sharing
agreement. However, E.M. No. 12-040 was not a proceeding regarding the qualifications of
SENIOR CITIZENS as a party-list group and the issue of whether the term-sharing
agreement may be a ground for disqualification was neither raised nor resolved in that case.
Chairman Brillantes’s remonstration was not sufficient as to constitute a fair warning that the
term-sharing agreement would be considered as a ground for the cancellation of SENIOR
CITIZENS’ registration and accreditation.

Furthermore, after the promulgation of Atong Paglaum, which remanded, among other
cases, the disqualification cases involving SENIOR CITIZENS, said organization should
have still been afforded the opportunity to be heard on the matter of the term-sharing
agreement, either through a hearing or through written memoranda. This was the proper
recourse considering that the COMELEC was about to arrive at a final determination as to
the qualification of SENIOR CITIZENS. Instead, the COMELEC issued the May 10, 2013
Omnibus Resolution in SPP No. 12-157 (PLM) and SPP No. 12-191 (PLM) without
conducting any further proceedings thereon after its receipt of our Decision in Atong
Paglaum.

The Prohibition on Term-sharing

The second issue both raised by the petitioners herein constitute the threshold legal issue of
the instant cases: whether the COMELEC committed grave abuse of discretion amounting to
lack or excess of jurisdiction when it issued the assailed Omnibus Resolution, disqualifying
and cancelling the registration and accreditation of SENIOR CITIZENS solely on account of
its purported violation of the prohibition against term-sharing.

The Datol Group argues that the public policy prohibiting term-sharing was provided for
under Section 7, Rule 4 of COMELEC Resolution No. 9366, which was promulgated only on
February 21, 2012. Hence, the resolution should not be made to apply retroactively to the
case of SENIOR CITIZENS as nothing therein provides for its retroactive effect. When the
term-sharing agreement was executed in 2010, the same was not yet expressly proscribed
by any law or resolution.

Furthermore, the Datol Group points out that the mere execution of the Irrevocable Covenant
between the nominees of SENIOR CITIZENS for the 2010 elections should not have been a
ground for the cancellation of the organization’s registration and accreditation because the
nominees never actually implemented the agreement.

In like manner, the Arquiza Group vehemently stresses that no term-sharing actually
transpired between the nominees of SENIOR CITIZENS. It explained that whatever prior
arrangements were made by the nominees on the term-sharing agreement, the same did not
materialize given that the resignation of Rep. Kho was disapproved by the Board of Trustees
and the members of SENIOR CITIZENS.

Still, granting for the sake of argument that the term-sharing agreement was actually
implemented, the Arquiza Group points out that SENIOR CITIZENS still cannot be held to
have violated Section 7 of Resolution No. 9366. The term-sharing agreement was entered
into in 2010 or two years prior to the promulgation of said resolution on February 21, 2012.
Likewise, assuming that the resolution can be applied retroactively, the Arquiza Group
contends that the same cannot affect SENIOR CITIZENS at it already earned a vested right
in 2010 as party-list organization.

Article 4 of the Civil Code states that "laws shall have no retroactive effect, unless the
contrary is provided." As held in Commissioner of Internal Revenue v. Reyes,50 "the general
rule is that statutes are prospective. However, statutes that are remedial, or that do not
create new or take away vested rights, do not fall under the general rule against the
retroactive operation of statutes." We also reiterated in Lintag and Arrastia v. National Power
Corporation51 that:

It is a well-entrenched principle that statutes, including administrative rules and regulations,

operate prospectively unless the legislative intent to the contrary is manifest by express
terms or by necessary implication because the retroactive application of a law usually divests
rights that have already become vested. This is based on the Latin maxim: Lex prospicit non
respicit (the law looks forward, not backward). (Citations omitted.)

True, COMELEC Resolution No. 9366 does not provide that it shall have retroactive effect.
Nonetheless, the Court cannot subscribe to the argument of the Arquiza Group that SENIOR
CITIZENS already earned a vested right to its registration as a party-list organization.

Montesclaros v. Commission on Elections52 teaches that "a public office is not a property
right. As the Constitution expressly states, a ‘Public office is a public trust.’ No one has a
vested right to any public office, much less a vested right to an expectancy of holding a
public office." Under Section 2(5), Article IX-C of the Constitution, the COMELEC is
entrusted with the function to "register, after sufficient publication, political parties,
organizations, or coalitions which, in addition to other requirements, must present their
platform or program of government." In fulfilling this function, the COMELEC is duty-bound to
review the grant of registration to parties, organizations, or coalitions already registered in
order to ensure the latter’s continuous adherence to the requirements prescribed by law and
the relevant rulings of this Court relative to their qualifications and eligibility to participate in
party-list elections.

The Arquiza Group cannot, therefore, object to the retroactive application of COMELEC
Resolution No. 9366 on the ground of the impairment of SENIOR CITIZENS’ vested right.

Be that as it may, even if COMELEC Resolution No. 9366 expressly provided for its
retroactive application, the Court finds that the COMELEC En Banc indeed erred in
cancelling the registration and accreditation of SENIOR CITIZENS.

The reason for this is that the ground invoked by the COMELEC En Banc, i.e., the term-
sharing agreement among the nominees of SENIOR CITIZENS, was not implemented. This
fact was manifested by the Arquiza Group even during the April 18, 2012 hearing conducted
by the COMELEC En Banc in E.M. No. 12-040 wherein the Arquiza Group manifested that it
was withdrawing its petition for confirmation and approval of Rep. Kho’s replacement.
Thereafter, in its Resolution dated June 27, 2012 in E.M. No. 12-040, the COMELEC En
Banc itself refused to recognize the term-sharing agreement and the tender of resignation of
Rep. Kho. The COMELEC even declared that no vacancy was created despite the execution
of the said agreement. Subsequently, there was also no indication that the nominees of
SENIOR CITIZENS still tried to implement, much less succeeded in implementing, the term-
sharing agreement. Before this Court, the Arquiza Group and the Datol Group insist on this
fact of non-implementation of the agreement. Thus, for all intents and purposes, Rep. Kho
continued to hold his seat and served his term as a member of the House of
Representatives, in accordance with COMELEC Resolution No. 9366 and the COMELEC En
Banc ruling in E.M. No. 12-040. Curiously, the COMELEC is silent on this point.

Indubitably, if the term-sharing agreement was not actually implemented by the parties
thereto, it appears that SENIOR CITIZENS, as a party-list organization, had been unfairly
and arbitrarily penalized by the COMELEC En Banc. Verily, how can there be disobedience
on the part of SENIOR CITIZENS when its nominees, in fact, desisted from carrying out their
agreement? Hence, there was no violation of an election law, rule, or regulation to speak of.
Clearly then, the disqualification of SENIOR CITIZENS and the cancellation of its registration
and accreditation have no legal leg to stand on.

In sum, the due process violations committed in this case and the lack of a legal ground to
disqualify the SENIOR CITIZENS spell out a finding of grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of the COMELEC En Banc. We are, thus, left with
no choice but to strike down the assailed Omnibus Resolution dated May 10, 2013 in SPP
No. 12-157 (PLM) and SPP No. 12-191 (PLM).

In light of the foregoing discussion, the Court finds no need to discuss the other issues raised
by the petitioners. In particular, the dispute between the rival factions of SENIOR CITIZENS,
not being an issue raised here, should be threshed out in separate proceedings before the
proper tribunal having jurisdiction thereon.

Having established that the COMELEC En Banc erred in ordering the disqualification of
SENIOR CITIZENS and the cancellation of its registration and accreditation, said
organization is entitled to be proclaimed as one of the winning party-list organizations in the
recently concluded May 13, 2013 elections.

WHEREFORE, the Court hereby rules that:

(1) The Extremely Very Urgent Petition for Certiorari (With Prayer for the Forthwith
Issuance of a Writ of Preliminary Injunction and Temporary Restraining Order [TRO]
and/or Status Quo Ante Order [SQAO]) in G.R. Nos. 206844-45 and the Very Urgent
Petition for Certiorari (With Application for a Temporary Restraining Order and Writ of
Preliminary Injunction) in G.R. No. 206982 are GRANTED;

(2) The Omnibus Resolution dated May 10, 2013 of the Commission on Elections En
Banc in SPP No. 12-157 (PLM) and SPP No. 12-191 (PLM) is REVERSED and SET
ASIDE insofar as Coalition of Associations of Senior Citizens in the Philippines, Inc.
is concerned; and

(3) The Commission on Elections En Bane is ORDERED to PROCLAIM the Coalition

of Associations of Senior Citizens in the Philippines, Inc. as one of the winning party-
list organizations during the May 13, 20 13 elections with the number of seats it may
be entitled to based on the total number of votes it garnered during the said
elections.

No costs.

SO ORDERED.
 G.R. No. 205505, September 29, 2015

ATTY. ISIDRO Q. LICO, RAFAEL A. PUENTESPINA, PROCULO T. SARMEN, AMELITO L.

REVUELTA, WILLIAM C. YBANEZ, SILVERIO J. SANCHEZ, GLORIA G. FUTALAN, HILARIO DE
GUZMAN, EUGENE M. PABUALAN, RODOLFO E. PEREZ, HIPOLITO R. QUILLAN, MARIO
ARENAS, TIRSO C. BUENAVENTURA, LYDIA B. TUBELLA, REYNALDO C. GOLO& JONATHAN
DEQUINA IN THEIR INDIVIDUAL CAPACITIES, AND AS LEGITIMATE MEMBERS AND
OFFICERS OF ADHIKAING TINATAGUYOD NG KOOPERATIBA (ATING KOOP PARTY
LIST), Petitioners, v. THE COMMISSION ON ELECTIONS EN BANC AND THE SELF-STYLED
SHAM ATING KOOP PARTYLIST REPRESENTED BY AMPARO T. RIMAS, Respondents.

DECISION

SERENO, C.J.:

The pivotal and interrelated issues before Us in this case involve the seemingly elementary matter
of the Commission on Elections' (COMELEC) jurisdiction over the expulsion of a sitting party-list
representative: from the House of Representatives, on the one hand; and from his party-list
organization, on the other.

The instant case involves two rival factions of the same party-list organization, the Adhikaing
Tinataguyod ng Kooperatiba (Ating Koop). One group is headed by petitioner Atty. Isidro Q. Lico
(the Lico Group), who represents the organization in the House of Representatives, and the other
group by Amparo T. Rimas (respondents herein, or the Rimas Group).

THE CASE

Before Us is a Petition for Certiorari under Rule 641 in relation to Rule 65,2 seeking to annul the
Resolutions in E.M. No. 12-039 dated 18 July 2012 and 31 January 2013 of the COMELEC.

THE ANTECEDENT FACTS

Ating Koop is a multi-sectoral party-list organization which was registered on 16 November 2009
under Republic Act (R.A.) No. 7941, also known as the Party-List System Act (Party-List Law).

Under Ating Koop's Constitution and By-Laws, its highest policymaking body is the National
Convention. The Central Committee, however, takes over when the National Convention is not in
session.3

On 30 November 2009, Ating Koop filed its Manifestation of Intent to Participate in the Party-List
System of Representation for the 10 May 2010 Elections.4 On 6 March 2010, it filed with the
COMELEC the list of its nominees, with petitioner Lico as first nominee and Roberto Mascarina as
second nominee.

On 8 December 2010, COMELEC proclaimed Ating Koop as one of the winning party-list
groups.5 Based on the procedure provided in BANAT Party-List v. COMELEC,6 Ating Koop earned a
seat in the House of Representatives. Petitioner Lico subsequently took his oath of office on 9
December 2010 before the Secretary-General of the House of Representatives,7 and thereafter
assumed office.

Several months prior to its proclamation as one of the winning party-list organizations, or on 9 June
2010, Ating Koop issued Central Committee Resolution 2010-01, which incorporated a term-sharing
agreement signed by its nominees.8 Under the agreement, petitioner Lico was to serve as Party-list
Representative for the first year of the three-year term.9

On 14 May 2011, Ating Koop held its Second National Convention, during which it introduced
amendments to its Constitution and By-laws. Among the salient changes was the composition of the
Central Committee,10 which would still be composed of 15 representatives but with five each coming
from Luzon, Visayas and Mindanao (5-5-5 equal representation).11 The amendments likewise
mandated the holding of an election of Central Committee members within six months after the
Second National Convention.12

In effect, the amendments cut short the three-year term of the incumbent members (referred to
hereafter as the Interim Central Committee) of the Central Committee.13 The Interim Central
Committee was dominated by members of the Rimas Group.

On 5 December 2011, or almost one year after petitioner Lico had assumed office, the Interim
Central Committee expelled him from Ating Koop for disloyalty.14 Apart from allegations of
malversation and graft and corruption, the Committee cited petitioner Lico's refusal to honor the
term-sharing agreement as factual basis for disloyalty and as cause for his expulsion under Ating
Koop's Amended Constitution and By-laws.15

On 8 December 2011, Congressman Lico filed a Motion for Reconsideration with the Interim Central
Committee,16 which subsequently denied the same in a Resolution dated 29 December 2011.17

While petitioner Lico's Motion for Reconsideration was pending, the Lico Group held a special
meeting in Cebu City (the Cebu meeting) on 19 December 2011. At the said meeting, new members
of the Central Committee, as well as a new set of officers, were elected.18 The election was
purportedly held for the purpose of implementing the 5-5-5 equal representation amendment made
during the Second National Convention.19

On 21 January 2012, the Rimas Group held a Special National Convention in Parañaque City20 (the
Parañaque convention), at which a new Central Committee and a new set of officers were
constituted.21Members of the Rimas Group won the election and occupied all the corresponding
seats.

PROCEEDINGS BEFORE THE COMELEC

SECOND DIVISION

On 16 March 2012, the Rimas Group, claiming to represent Ating Koop, filed with COMELEC a
Petition against petitioner Lico docketed as E.M. No. 12-039.22 The said Petition, which was
subsequently raffled to the Second Division, prayed that petitioner Lico be ordered to vacate the
office of Ating Koop in the House of Representatives, and for the succession of the second nominee,
Roberto Mascarina as Ating Koop's representative in the House.

The Rimas Group thereafter filed an Amended Petition with the COMELEC on 14 May 2012, this time
impleading not only petitioner Lico but the entire Lico Group. The Amended Petition also prayed that
the COMELEC nullify the election conducted at the Cebu meeting and recognize the Paranaque
convention.

In both the Petition and the Amended Petition, the Rimas Group alleged that Ating Koop had
expelled Congressman Lico for acts inimical to the party-list group, such as malversation, graft and
corruption, and that he had "boldly displayed his recalcitrance to honor party commitment to be
upright and consistently honest, thus violating basic principles of the Ating Koop."23 The Amended
Petition stated further that the Cebu meeting held by the Lico Group violated notice and quorum
requirements.24

In a Resolution dated 18 July 2012,25 the COMELEC Second Division upheld the expulsion of
petitioner Lico from Ating Koop and declared Mascarina as the duly qualified nominee of the party-
list group.26 The Second Division characterized the issue of the validity of the expulsion of petitioner
Lico from Ating Koop as an intra-party leadership dispute, which it could resolve as an incident of its
power to register political parties.27 cha nrob lesvi rtua llawli bra ry

PROCEEDINGS BEFORE THE COMELEC

EN BANC

Consequently, the Lico Group filed a Motion for Reconsideration from the Second Division's
Resolution, which the COMELEC En Banc denied on 31 January 2013. The dispositive portion of its
Resolution reads: c ralawlawl ibra ry

WHEREFORE, premises considered, the Commission (En Banc) RESOLVES, as it

hereby RESOLVED, to:
a. DISMISS the instant Petition to Expel Respondent Atty. Isidro Q. Lico in the House of
Representatives and to Sanction the Immediate Succession of the Second Nominee of ATING KOOP
Party List, Mr. Roberto C. Mascarina as its Party Representative, for lack of jurisdiction;
ChanRobles Vi rt ualawlib ra ry

b. UPHOLD the Expulsion of Respondent Atty. Isidro Lico from ATING KOOP Party-list Group; [and]

c. UPHOLD the ATING KOOP Party-list Group represented by its President, Amparo T. Rimas, as the
legitimate Party-list Group accredited by the Commission on Elections, to the exclusion of
respondents Atty. Isidro Q. Lico, Rafael A. Puentespina, Proculo T. Sarmen, Amelito L. Revuelta,
William C. Ybanez, Silverio J. Sanchez, Gloria G. Futalan, Hilario De Guzman, Eugene M. Pabualan,
Rodolfo E. Perez, Hipolito R. Quillan, Mario Arenas, Tirso C. Buenaventura, Lydia B. Tubella, and
Jonathan Dequina.28
chanrobles law

In arriving at its Resolution, the COMELEC En Banc held that it had no jurisdiction to expel
Congressman Lico from the House of Representatives, considering that his expulsion from Ating
Koop affected his qualifications as member of the House, and therefore it was the House of
Representatives Electoral Tribunal (HRET) that had jurisdiction over the Petition.

At the same time, the COMELEC upheld the validity of petitioner Lico's expulsion from Ating Koop,
explaining that when the Interim Central Committee ousted him from Ating Koop, the said
Committee's members remained in hold-over capacity even after their terms had expired;29 and
that the COMELEC was not in a position to substitute its judgment for that of Ating Koop with
respect to the cause of the expulsion.30

Finally, the COMELEC En Banc recognized the Rimas Group as the legitimate representative of Ating
Koop considering that: 1) it found nothing in the records to show that the Lico Group made a valid
call for the special election of Central Committee members as required under the Amended
Constitution and By-Laws;31 2) there is nothing on record indicating that a minimum of 100
attended the Cebu meeting;32and 3) the Parañaque convention was in accordance with Ating Koop's
Amended Constitution and By-Laws.33

Hence, this Petition: the Lico Group now comes before Us, praying for a review of the COMELEC
Resolutions.

The Court's Ruling

On the COMELEC's jurisdiction over

the expulsion of a Member of the House
of Representatives from his party-list
organization

We find that while the COMELEC correctly dismissed the Petition to expel petitioner Lico from the
House of Representatives for being beyond its jurisdiction, it nevertheless proceeded to rule upon
the validity of his expulsion from Ating Koop - a matter beyond its purview.

The COMELEC notably characterized the Petition for expulsion of petitioner Lico from the House of
Representatives and for the succession of the second nominee as party-list representative as a
disqualification case. For this reason, the COMELEC dismissed the petition for lack of jurisdiction,
insofar as it relates to the question of unseating petitioner Lico from the House of Representatives.

Section 17, Article VI of the 1987 Constitution34 endows the HRET with jurisdiction to resolve
questions on the qualifications of members of Congress. In the case of party-list representatives,
the HRET acquires jurisdiction over a disqualification case upon proclamation of the winning party-
list group, oath of the nominee, and assumption of office as member of the House of
Representatives.35 In this case, the COMELEC proclaimed Ating Koop as a winning party-list group;
petitioner Lico took his oath; and he assumed office in the House of Representatives. Thus, it is the
HRET, and not the COMELEC, that has jurisdiction over the disqualification case.

What We find to be without legal basis, however, is the action of the COMELEC in upholding the
validity of the expulsion of petitioner Lico from Ating Koop, despite its own ruling that the HRET has
jurisdiction over the disqualification issue. These findings already touch upon the qualification
requiring a party-list nominee to be a bona fide member of the party-list group sought to be
represented.

The COMELEC justified its Resolution on the merits of the expulsion, by relying on the rule that it
can decide intra-party matters as an incident of its constitutionally granted powers and functions. It
cited Lokin v. COMELEC, where We held that when the resolution of an intra-party controversy is
necessary or incidental to the performance of the constitutionally-granted functions of the
COMELEC, the latter can step in and exercise jurisdiction over the intra-party matter.36 The Lokin
case, however, involved nominees and not incumbent members of Congress. In the present case,
the fact that petitioner Lico was a member of Congress at the time of his expulsion from Ating Koop
removes the matter from the jurisdiction of the COMELEC.

The rules on intra-party matters and on the jurisdiction of the HRET are not parallel concepts that
do not intersect. Rather, the operation of the rule on intra-party matters is circumscribed by Section
17 of Article VI of the 1987 Constitution and jurisprudence on the jurisdiction of electoral tribunals.
The jurisdiction of the HRET is exclusive. It is given full authority to hear and decide the cases on
any matter touching on the validity of the title of the proclaimed winner.37

In the present case, the Petition for petitioner Lico's expulsion from the House of Representatives is
anchored on his expulsion from Ating Koop, which necessarily affects his title as member of
Congress. A party-list nominee must have been, among others, a bona fide member of the party or
organization for at least ninety (90) days preceding the day of the election. Needless to say, bona
fide membership in the party-list group is a continuing qualification. We have ruled that
qualifications for public office, whether elective or not, are continuing requirements. They must be
possessed not only at the time of appointment or election, or of assumption of office, but during the
officer's entire tenure.39

This is not the first time that this Court has passed upon the issue of HRET jurisdiction over the
requirements for bona fide membership in a party-list organization. In Abayon v. HRET,40 it was
argued that the petitioners did not belong to the marginalized and under-represented sectors that
they should represent; as such, they could not be properly considered bona fide members of their
respective party-list organizations. The Court held that it was for the HRET to interpret the meaning
of the requirement of bona fide membership in a party-list organization. It reasoned that under
Section 17, Article VI of the Constitution, the HRET is the sole judge of all contests when it
comes to qualifications of the members of the House of Representatives.41

Consequently, the COMELEC failed to recognize that the issue on the validity of petitioner Lico's
expulsion from Ating Koop is integral to the issue of his qualifications to sit in Congress. This is not
merely an error of law but an error of jurisdiction correctible by a writ of certiorari;42 the COMELEC
should not have encroached into the expulsion issue, as it was outside its authority to do so.

Distinguished from Reyes v. COMELEC

Our ruling here must be distinguished from Regina Ongsiako Reyes v. Commission on Elections.43 In
that case, We upheld the disqualification by the COMELEC of petitioner Reyes, even as she was
already proclaimed winner in the elections at the time she filed her petition with the High Court. In
doing so, We rejected the argument that the case fell within the exclusive jurisdiction of the HRET.

In Reyes, the petitioner was proclaimed winner of the 13 May 2013 Elections, and took her oath of
office before the Speaker of the House of Representatives. However, the Court ruled on her
qualifications since she was not yet a member of the House of Representatives: petitioner Reyes
had yet to assume office, the term of which would officially start at noon of 30 June 2013, when she
filed a Petition for Certiorariwith Prayer for Temporary Restraining Order and/or Preliminary
Injunction and/or Status Quo Ante Order dated 7 June 2013 assailing the Resolutions ordering the
cancellation of her Certificate of Candidacy. In the present case, all three requirements of
proclamation, oath of office, and assumption of office were satisfied.

Moreover, in Reyes, the COMELEC En Banc Resolution disqualifying petitioner on grounds of lack of
Filipino citizenship and residency had become final and executory when petitioner elevated it to this
Court.44 It should be mentioned that when petitioner Reyes filed her petition with the Court, the
COMELEC En Banc had, as early as 5 June 2013, already issued a Certificate of Finality over its 14
May 2013 Resolution disqualifying her. Therefore, there was no longer any pending case on the
qualifications of petitioner Reyes to speak of. Here, the question of whether petitioner Lico remains
a member of the House of Representatives in view of his expulsion from Ating Koop is a subsisting
issue.

Finally, in Reyes, We found the question of jurisdiction of the HRET to be a non-issue, since the
recourse of the petitioner to the Court appeared to be a mere attempt to prevent the COMELEC
from implementing a final and executory judgment. We said that the petitioner therein took an
inconsistent, if not confusing, stance, considering that she sought remedy before the Court, and yet
asserted that it is the HRET which had jurisdiction over the case.45 In this case, the question on the
validity of petitioner Lico's expulsion from Ating Koop is a genuine issue that falls within the
jurisdiction of the HRET, as it unmistakably affects his qualifications as party-list representative.

On which group legitimately represents

Ating Koop

We now pass upon the question of which, between the two contending groups, is the legitimate
leadership of Ating Koop.

At the outset, We reject the Lico Group's argument that the COMELEC has no jurisdiction to decide
which of the feuding groups is to be recognized, and that it is the Regional Trial Court which has
jurisdiction over intra-corporate controversies. Indeed, the COMELECs jurisdiction to settle the
struggle for leadership within the party is well established. This power to rule upon questions of
party identity and leadership is exercised by the COMELEC as an incident of its enforcement
powers.46

That being said, We find the COMELEC to have committed grave abuse of discretion in declaring the
Rimas Group as the legitimate set of Ating Koop officers for the simple reason that the amendments
to the Constitution and By-laws of Ating Koop were not registered with the COMELEC. Hence,
neither of the elections held during the Cebu meeting and the Paranaque conference pursuant to the
said amendments, were valid.

Both the Lico Group and the Rimas Group indeed assert that their respective elections were
conducted pursuant to the amendment introduced in the Second National Convention held on 14
May 2011. In particular, Section 1 of Article VI of Ating Koop's By-laws called for the conduct of an
election of Central Committee members within six months after the Second National Convention.47

There is no showing, however, that the amendments were actually filed with the COMELEC.

A party-list organization owes its existence to the State and the latter's approval must be obtained
through its agent, the COMELEC. In the 2013 case of Dayao v. COMELEC,48 We declared that it is
the State, acting through the COMELEC, that breathes life to a party-list organization. The
implication, therefore, is that the State, through the COMELEC, is a party to the principal contracts
entered into by the party-list organization and its members - the Constitution and By-laws - such
that any amendment to these contracts would constitute a novation requiring the consent of all the
parties involved. An amendment to the bylaws of a party-list organization should become effective
only upon approval by the COMELEC.

Such a prerequisite is analogous to the requirement of filing of the amended by-laws and
subsequent conformity thereto of the Securities and Exchange Commission (SEC) under corporation
law. Under the Corporation Code, an amendment to a by-law provision must be filed with the SEC.
The amendment shall be effective only upon the issuance by the SEC of a certification that it is not
inconsistent with the Corporation Code.49

There being no showing that the amendments on the by-laws of Ating Koop were filed with and
subsequently approved by the COMELEC, any election conducted pursuant thereto may not be
considered valid. Without such requisite proof, neither the Lico Group nor the Rimas Group can
claim to be the legitimate set of officers of Ating Koop.

Even assuming arguendo that the amendment calling for a special election were effective, this Court
still cannot declare any of the feuding groups as the legitimate set of officers considering that the
respective sets of evidence presented were evenly balanced. With respect to the Lico Group's Cebu
meeting, the COMELEC correctly found - and the records bear out - that the notices sent were
deficient and that there was no sufficient proof of quorum. Hence, the Cebu meeting was held to be
invalid. On the other hand, the COMELEC failed to appreciate the fact that the Paranaque
convention suffered from the same infirmity, the records of the said convention, consisting merely
of the Minutes thereof, likewise fail to establish due notice and a quorum.50

Accordingly, as neither group can sufficiently lay claim to legitimacy, the equipoise doctrine comes
into play. This rule provides that when the evidence in an issue of fact is in equipoise, that is, when
the respective sets of evidence of both parties are evenly balanced, the party having the burden of
proof fails in that issue. Since neither party succeeds in making out a case, neither side prevails.
The courts are left with no other option but to leave them as they are. The consequence, therefore,
is the dismissal of the complaint/petition.51

The Rimas Group, being the petitioner before the COMELEC, had the burden of proving that it is the
petitioner, and not the Lico Group, that is the legitimate group. As the evidence of both parties are
in equipoise, the Rimas Group failed to discharge its burden. The COMELEC should have dismissed
the petition of the Rimas Group insofar as it sought to be declared the legitimate group representing
Ating Koop.

Yet, the COMELEC held that the Paranaque convention "appeared to be in conformity" with Ating
Koop's Amended Constitution and By-Laws.52 It should be stressed that the COMELEC did not even
substantiate this conclusion.53

The Court ordinarily refrains from reviewing the COMELEC s appreciation and evaluation of the
evidence.54 But when the COMELECs assessment of the evidence is so grossly unreasonable that it
turns into an error of jurisdiction, the Court is compelled to intervene and correct the error.55

As seen in the above discussions, neither of the parties was able to establish its legitimacy. The
evaluation of the evidence by the COMELEC in deciding the issue of which group legitimately
represents Ating Koop was therefore grossly unreasonable, which amounts to a jurisdictional error
that may be remedied by certiorari under Rule 65.

The final, and most important question to be addressed is: if neither of the two groups is the
legitimate leadership of Ating Koop, then who is?

We find such legitimate leadership to be the Interim Central Committee, whose members remain as
such in a hold-over capacity.

In Seneres v. COMELEC,56 the validity of the Certificate of Nomination filed by Buhay Party-List
through its President, Roger Robles, was questioned on the ground that his term had expired at the
time it was filed. The Court applied by analogy the default rule in corporation law to the effect that
officers and directors of a corporation hold over after the expiration of their terms until such time as
their successors are elected or appointed.57Señeres ruled that the hold-over principle applies in the
absence of a provision in the constitution or by-laws of the party-list organization prohibiting its
application.

In the present case, We have gone through the Constitution and Bylaws of Ating Koop and We do
not see any provision forbidding, either expressly or impliedly, the application of the hold-over rule.
Thus, in accordance with corporation law, the existing Interim Central Committee is still a legitimate
entity with full authority to bind the corporation and to carry out powers despite the lapse of the
term of its members on 14 November 2011, since no successors had been validly elected at the
time, or since.

WHEREFORE, premises considered, the Petition is GRANTED. The COMELEC En Banc Resolution
dated 31 January 2013 and the COMELEC Second Division Resolution dated 18 July 2012 in E.M. No.
12-039 are hereby ANNULLED and SET ASIDE insofar as it declares valid the expulsion of
Congressman Lico from Ating Koop and it upholds the ATING KOOP Party-list Group represented by
its President, Amparo T. Rimas, as the legitimate Party-list Group.

A new one is entered DECLARING that the legitimate Central Committee and set of officers
legitimately representing Ating Koop are the Interim Central Committee and set of officers prior to
the split of Ating Koop.
SO ORDERED. chanroblesvi rtua llawli bra ry

G.R. No. 206952 October 22, 2013

ABANG LINGKOD PARTY-LIST ABANG LINGKOD, Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.

DECISION

REYES, J.:

This is a petition for certiorari under Rule 64 in relation to Rule 65 of the Rules of Court filed
by (Abang Lingkod Party-List ABANG LINGKOD) assailing the Resolution1 dated May 10,
2013 issued by the Commission on Elections COMELEC) En Bane in SPP No. 12-238 PLM},
which, alia, affirmed the cancellation of ABANG LINGKOD's registration as a party-list group.

The Facts

ABANG LINGKOD is a sectoral organization that represents the interests of peasant fanners
and fisherfolks, and was registered under the party-list system on December 22, 2009. It
participated in the May 2010 elections, but failed to obtain the number of votes needed for a
seat in the House of Representatives.

On May 31, 2012, ABANG LINGKOD manifested before the COMELEC its intent to
participate in the May 2013 elections. On August 2, 2012, the COMELEC issued Resolution
No. 9513,2 which, inter alia required previously registered party-list groups that have filed
their respective Manifestations of Intent to undergo summary evidentiary hearing for
purposes of determining their continuing compliance with the requirements under Republic
Act (R.A.) No. 79413 and the guidelines set forth in Ang Bagong Bayani-OFW Labor Party v.
COMELEC.4

Accordingly, on August 9 2012, the COMELEC issued a Resolution, which set the summary
evidentiary hearing of previously registered party-list groups. The COMELEC scheduled
three (3) dates -August 17, 31 and September 3, 2012 -for the summary hearing of ABANG
LINGKOD's Manifestation of Intent to enable it to show proof of its continuing qualification
under the party-list system.

On August 16, 2012, ABANG LINGKOD, in compliance with the COMELEC's August 9, 2012
Resolution, filed with the COMELEC pertinent documents to prove its continuing compliance
with the requirements under R.A. No. 7941.

After due proceedings, the COMELEC En Bane in a Resolution dated November 7 2012,
cancelled ABANG LINGKOD's registration as a party list group. The COMELEC En Bane
pointed out that ABANG LINGKOD failed to establish its track record in uplifting the cause of
the marginalized and underrepresented; that it merely offered photographs of some alleged
activities it conducted after the May 2010 elections. The COMELEC En Bane further opined
that ABANG LINGKOD failed to show that its nominees are themselves marginalized and
underrepresented or that they have been involved in activities aimed at improving the plight
of the marginalized and underrepresented sectors it claims to represent.
ABANG LINGKOD then filed with this Court a petition5 for certiorari alleging that the
COMELEC gravely abused its discretion in cancelling its registration under the party-list
system. The said petition was consolidated with the separate petitions filed by fifty-one (51)
other party-list groups whose registration were cancelled or who were denied registration
under the party-list system. The said party-list groups, including ABANG LINGKOD, were
able to obtain status quo ante orders from this Court.

On April 2, 2013, the Court, in Atong Paglaum Inc. v. Commission on Elections,6 laid down
new parameters to be observed by the COMELEC in screening parties, organizations or
associations seeking registration and/or accreditation under the party-list system, viz:

1. Three different groups may participate in the party-list system: (1) national parties or
organizations, (2) regional parties or organizations, and (3) sectoral parties or organizations.

2. National parties or organizations and regional parties or organizations do not need to

organize along sectoral lines and do not need to represent any marginalized and
underrepresented sector. 3. Political parties can participate in party-list elections provided
they register under the party-list system and do not field candidates in legislative district
elections. A political party, whether major or not, that fields candidates in legislative district
elections can participate in party-list elections only through its sectoral wing that can
separately register under the party-list system. The sectoral wing is by itself an independent
sectoral party, and is linked to a political party through a coalition.

4. Sectoral parties or organizations may either be "marginalized and underrepresented or

lacking in "well-defined political constituencies." It is enough that their principal advocacy
pertains to the special interests and concerns of their sector. The sectors that are
marginalized and underrepresented include labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, handicapped, veterans, and overseas workers. The sectors
that lack "well-defined political constituencies" include professionals, the elderly, women, and
the youth.

5. A majority of the members of the sectoral parties or organizations that represent the
''marginalized and underrepresented must belong to the marginalized and underrepresented
sector they represent. Similarly, a majority of the members of sectoral parties or
organizations that lack "well-defined political constituencies" must belong to the sector they
represent. The nominees of sectoral parties or organizations that represent the "marginalized
and underrepresented" or that represent those who lack "well-defined political
constituencies," either must belong to their respective sectors, or must have a track record or
advocacy for their respective sectors. The nominees of national and regional parties or
organizations must be bona-fide members of such parties or organizations.

6. National, regional, and sectoral parties or organizations shall not be disqualified if some of
their nominees are disqualified, provided that they have at least one nominee who remains
qualified.

Thus, the Court remanded to the COMELEC the cases of previously registered party-list
groups, including that of ABANG LINGKOD, to determine whether they are qualified under
the party-list system pursuant to the new parameters laid down by the Court and, in the
affirmative, be allowed to participate in the May 2013 party-list elections.

On May 10, 2013, the COMELEC issued the herein assailed Resolution,7 which, inter alia
affirmed the cancellation of ABANG LINGKOD's registration under the party-list system. The
COMELEC issued the Resolution dated May 10, 2013 sans any summary evidentiary
hearing, citing the proximity of the May 13 2013 elections as the reason therefor.

In maintaining the cancellation of ABANG LINGKOD's registration, the COMELEC held that:

The Commission maintains its position in the previous en bane ruling cancelling the
registration of ABANG LINGKOD. To reiterate, it is not enough that the party-list organization
claim representation of the marginalized and underrepresented because representation is
easy to claim and to feign. It is but reasonable to require from groups and organizations
consistent participation and advocacy in the sector it seeks to represent, and not just
seasonal and sporadic programs which are unrelated to its sector.

ABANG LINGKOD submitted pictures showing a seminar held on 10 July 2010, Medical
Mission on 11 November 2010, Disaster Management Training on 21 October 2011, Book-
giving on 28 June 2011, and Medical Mission on 1 December 2011.

And as if to insult the Commission, the photographs submitted appear to have been edited to
show in the banners that ABANG LINGKOD participated in the activities. ABANG
LINGKOD's name and logo was superimposed on some banners to feign participation in the
activities (Joint Medical Mission, Book-giving).

Under the party-list System Act, a group s registration may be cancelled for declaring
unlawful statements in its petition. Photoshopping images to establish a fact that did not
occur is tantamount to declaring unlawful statements. It is on this ground that the
Commission cancels ABANG LINGKOD s registration.8

On May 12, 2013, ABANG LINGKOD sought a reconsideration of the COMELEC s

Resolution dated May 10, 2013. However, on May 15, 2013, ABANG LINGKOD withdrew the
motion for reconsideration it filed with the COMELEC and, instead, instituted the instant
petition9 with this Court, alleging that there may not be enough time for the COMELEC to
pass upon the merits of its motion for reconsideration considering that the election returns
were already being canvassed and consolidated by the COMELEC.

In support of the instant petition, ABANG LINGKOD claims that the COMELEC gravely
abused its discretion when it affirmed the cancellation of its registration sans a summary
evidentiary hearing for that purpose, asserting that the COMELEC should have allowed it to
present evidence to prove its qualification as a party-list group pursuant to Atong Paglaum. It
claims that there was no valid justification for the COMELEC to cancel its registration
considering that it complied with the six-point parameters m screening party-list groups laid
down in Atong Paglaum.

On the other hand, the COMELEC avers that the instant petition should be dismissed for
utter lack of merit. It asserts that ABANG LINGKOD was not denied due process when the
COMELEC affirmed the cancellation of its registration since it was given every reasonable
opportunity to be heard. The COMELEC further claims that it did not abuse its discretion
when it cancelled ABANG LINGKOD’s registration on the ground that it failed to establish a
track record in representing the marginalized and underrepresented. Further, the COMELEC
alleges that its finding of facts may not be passed upon by this Court as the same is
supported by substantial evidence.

The Issues
In sum, the issues presented for the Court s resolution are the following: first whether
ABANG LINGKOD was denied due process when the COMELEC affirmed the cancellation of
its registration under the patiy-list system sans any summary evidentiary hearing; and
second whether the COMELEC gravely abused its discretion in cancelling ABANG
LINGKOD’s registration under the party-list system.

The Court's Ruling

The petition is meritorious.

First Issue: Due Process

The essence of due process is simply an opportunity to be heard or as applied to

administrative or quasi-judicial proceedings, an opportunity to explain one s side or an
opportunity to seek reconsideration of the action or ruling complained of. A formal or trial
type hearing is not at all times and in all instances essential. The requirements are satisfied
when the parties are afforded fair and reasonable opportunity to explain their side of the
controversy at hand. What is frowned upon is the absolute lack of notice or hearing.10

In the instant case, while the petitioner laments that it was denied due process, the Court
finds that the COMELEC had afforded ABANG LINGKOD sufficient opportunity to present
evidence establishing its qualification as a party-list group. It was notified through Resolution
No. 9513 that its registration was to be reviewed by the COMELEC. That ABANG LINGKOD
was able to file its Manifestation of Intent and other pertinent documents to prove its
continuing compliance with the requirements under R.A. No. 7941, which the COMELEC set
for summary hearing on three separate dates, belies its claim that it was denied due process.

There was no necessity for the COMELEC to conduct further summary evidentiary hearing to
assess the qualification of ABANG LINGKOD pursuant to Atong Paglaum. ABANG
LINGKOD’s Manifestation of Intent and all the evidence adduced by it to establish its
qualification as a party-list group are already in the possession of the COMELEC. Thus,
conducting further summary evidentiary hearing for the sole purpose of determining ABANG
LINGKOD s qualification under the party-list system pursuant to Atong Paglaum would just
be a superfluity.

Contrary to ABANG LINGKOD’s claim, the Court, in Atong Paglaum, did not categorically
require the COMELEC to conduct a summary evidentiary hearing for the purpose of
determining the qualifications of the petitioners therein pursuant to the new parameters for
screening party-list groups. The dispositive portion of Atong Paglaum reads:

WHEREFORE, all the present 54 petitions are GRANTED. The 13 petitions, which have
been granted Status Quo Ante Orders but without mandatory injunction to include the names
of the petitioners in the printing of ballots, are remanded to the Commission on Elections only
for determination whether petitioners are qualified to register under the party-list system
under the parameters prescribed in this Decision but they shall not participate in the 13 May
2013 party-list elections. The 41 petitions, which have been granted mandatory injunctions to
include the names of petitioners in the printing of ballots, are remanded to the Commission
on Elections for determination whether petitioners are qualified to register under the party-list
system and to participate in the 13 May 2013 party-list elections under the parameters
prescribed in this Decision. The Commission on Elections may conduct summary evidentiary
hearings for this purpose. This Decision is immediately executory.
SO ORDERED.11 (Emphasis ours)

Thus, the cases of previously registered party-list groups, including ABANG LINGKOD, were
remanded to the COMELEC so that it may reassess, based on the evidence already
submitted by the former, whether they are qualified to participate in the party-list system
pursuant to the new parameters laid down in Atong Paglaum. The Court did not require the
COMELEC to conduct a hearing de novo in reassessing the qualifications of said party-list
groups. Nevertheless, the Court gave the COMELEC the option to conduct further summary
evidentiary hearing should it deem appropriate to do so.

The records also disclose that ABANG LINGKOD was able to file with the COMELEC a
motion for reconsideration of the Resolution dated May 10, 2013, negating its claim that it
was denied due process. As it has been held, deprivation of due process cannot be
successfully invoked where a party was given a chance to be heard on his motion for
reconsideration.12

Second Issue: Cancellation of

ABANG LINGKOD’s Registration

However, after a careful perusal of the factual antecedents of this case, pinned against the
new parameters in screening party-list groups laid down in Atong Paglaum the Court finds
that the COMELEC gravely abused its discretion in cancelling the registration of ABANG
LINGKOD under the party-list system.

The COMELEC affirmed the cancellation of ABANG LINGKOD's registration on the ground
that it declared untruthful statement in its bid for accreditation as a party-list group in the May
2013 elections, pointing out that it deliberately submitted digitally altered photographs of
activities to make it appear that it had a track record in representing the marginalized and
underrepresented. Essentially, ABANG LINGKOD's registration was cancelled on the ground
that it failed to adduce evidence showing its track record in representing the marginalized
and underrepresented.

The flaw in the COMELEC's disposition lies in the fact that it insists on requiring party-list
groups to present evidence showing that they have a track record in representing the
marginalized and underrepresented.

Track record is a record of past performance often taken as an indicator of likely future
performance.13 As a requirement imposed by Ang Bagong Bayani for groups intending to
participate in the party-list elections, track record pertains to the actual activities undertaken
by groups to uplift the cause of the sector/s, which they represent.

Section 5 of R.A. No. 7941 however provides:

Sec. 5 Registration. Any organized group of persons may register as a party, organization or
coalition for purposes of the party-list system by filing with the COMELEC not later than
ninety (90) days before the election a petition verified by its president or secretary stating its
desire to participate in the party-list system as a national, regional or sectoral party or
organization or a coalition of such parties or organizations, attaching thereto its constitution,
by-laws, platform or program of government list of officers, coalition agreement and other
relevant information as the COMELEC may require: Provided, That the sectors shall include
labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped,
women, youth, veterans, overseas workers, and professionals. (Emphasis ours)

R.A. No. 7941 did not require groups intending to register under the party-list system to
submit proof of their track record as a group. The track record requirement was only imposed
in Ang Bagong Bayani where the Court held that national, regional, and sectoral parties or
organizations seeking registration under the party-list system must prove through their, inter
alia track record that they truly represent the marginalized and underrepresented, thus:

xxx

In this light, the Court finds it appropriate to lay down the following guidelines, culled from the
law and the Constitution, to assist the Comelec in its work.

First, the political pat1y, sector, organization or coalition must represent the marginalized and
underrepresented groups identified in Secdon 5 of RA 7941. In other words, it must show --
through its constitution, articles of incorporation, bylaws, history, platform of government and
track record -- that it represents and seeks to uplift marginalized and underrepresented
sectors. Verily, majority of its membership should belong to the marginalized and
underrepresented. And it must demonstrate that in a conflict of interests, it has chosen or is
likely to choose the interest of such sectors. (Emphasis ours)

Track record is not the same as the submission or presentation of "constitution, by-laws,
platform of government, list of officers, coalition agreement, and other relevant information as
may be required by the COMELEC," which are but mere pieces of documentary evidence
intended to establish that the group exists and is a going concern. The said documentary
evidence presents an abstract of the ideals that national, regional, and sectoral parties or
organizations seek to achieve.

This is not merely a matter of semantics; the delineation of what constitutes a track record
has certain consequences in a group's bid for registration under the party-list system. Under
Section 5 of R.A. No. 7941, groups intending to register under the party-list system are not
required to submit evidence of their track record; they are merely required to attach to their
verified petitions their "constitution, by-laws, platform of government, list of officers, coalition
agreement, and other relevant information as may be required by the COMELEC."

In Atong Paglaum the Court has modified to a great extent the jurisprudential doctrines on
who may register under the party-list system and the representation of the marginalized and
underrepresented. For purposes of registration under the party-list system, national or
regional parties or organizations need not represent any marginalized and underrepresented
sector; that representation of the marginalized and underrepresented is only required of
sectoral organizations that represent the sectors stated under Section 5 of R.A. No. 7941
that are, by their nature, economically marginalized and underrepresented.

There was no mention that sectoral organizations intending to participate in the party-list
elections are still required to present a track record, viz:

x x x In determining who may participate in the coming 13 May 2013 and subsequent party-
list elections, the COMELEC shall adhere to the following parameters:

xxxx
4. Sectoral parties or organizations may either be marginalized and underrepresented or
lacking in well-defined political constituencies. It is enough that their principal advocacy
pertains to the special interests and concerns of their sector. The sectors that are
marginalized and underrepresented include labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, handicapped, veterans, and overseas workers. The sectors
that lack well-defined political constituencies'' include professionals, the elderly, women, and
the youth. (Emphasis ours)

Contrary to the COMELEC's claim, sectoral parties or organizations, such as ABANG

LINGKOD, are no longer required to adduce evidence showing their track record, i.e. proof of
activities that they have undertaken to further the cause of the sector they represent. Indeed,
it is enough that their principal advocacy pertains to the special interest and concerns of their
sector. Otherwise stated, it is sufficient that the ideals represented by the sectoral
organizations are geared towards the cause of the sector/s, which they represent.

If at all, evidence showing a track record in representing the marginalized and

underrepresented sectors is only required from nominees of sectoral parties or organizations
that represent the marginalized and underrepresented who do not factually belong to the
sector represented by their party or organization.

Dissenting, my esteemed colleague, Mr. Justice Leonen, however, maintains that parties or
organizations intending to register under the party-list system are still required to present a
track record notwithstanding the Court's pronouncement in Atong Paglaum that the track
record that would have to be presented would only differ as to the nature of their
group/organization. He opines that sectoral organizations must prove their links with the
marginalized and underrepresented while national or regional parties or organizations must
show that they have been existing as a bona fide organization.

To submit to the dissent's insistence on varying track records, which are required of those
intending to register under the party-list system, depending on the nature of their group,
would result into an absurd and unjust situation. Under the varying track record requirement,
sectoral organizations must present evidence showing their track record in representing the
marginalized and underrepresented, i.e. actual activities conducted by them to further uplift
the cause of the sector/s they represent. On the other hand, national and regional parties or
organizations need only prove that they exist as bona fide organizations which, as the
dissent suggests, may be done through the submission of their constitution, by-laws,
platform of government, list of officers, coalition agreement, and other relevant information
required by the COMELEC.

However, submission of a group's constitution, by-laws, platform of government, list of

officers, coalition agreement, and other relevant information required by the COMELEC, as
explained earlier, is not synonymous with the track record requirement. In such case, only
sectoral organizations would be required to present a track record (actual activities
conducted by them to further the cause of the marginalized and underrepresented); while
national and regional organizations need not present their track record as they are only
required to submit documentary evidence showing that they are bona fide organizations.

There is no logic in treating sectoral organizations differently from national and regional
parties or organizations as regards their bid for registration under the party-list system. The
varying track record requirement suggested by the dissent would unnecessarily put a
premium on groups intending to register as national and regional parties or organizations as
against those intending to register as sectoral organizations The imposition of an additional
burden on sectoral organizations, i.e. submission of their track record, would be plainly
unjust as it effectively deters the marginalized and underrepresented sectors from organizing
themselves under the party-list system.

Likewise, that there was no explicit reversal of the guidelines in ng Bagong Bayani in tong
Paglaum does not mean that groups intending to register under the party-list system are still
required to submit a track record. The track record of groups intending to register under the
party-list system was required under the first guideline of Ang Bagong Bayani for a very
specific purpose to show that the national, regional, and sectoral parties or organizations that
would be allowed to participate in the party-list elections are truly representative of the
marginalized and underrepresented sectors It was necessary-then to require groups seeking
registration under the party-list system since representation of the marginalized and
underrepresented, as understood in the context of Ang Bagong Bayani is easy to claim and
feign.

There exists no reason to further require groups seeking registration under the party-list
system to submit evidence showing their track record. Pursuant to Atong Paglaum not all
groups are required to represent the marginalized and underrepresented sectors and,
accordingly, there is no longer any incentive in merely feigning representation of the
marginalized and underrepresented sectors.

In the case of sectoral organizations, although they are still required to represent the
marginalized and underrepresented, they are likewise not required to show a track record
since there would be no reason for them to feign representation of the marginalized and
underrepresented as they can just register as a national or regional party or organization.
Thus, the Court, in Atong Paglaum stated that, for purposes of registration under the party-
list system, it is enough that the principal advocacy of sectoral organizations pertains to the
sector/s they represent.

There is thus no basis in law and established jurisprudence to insist that groups seeking
registration under the party-list system still comply with the track record requirement. Indeed,
nowhere in R.A. No. 7941 is it mandated that groups seeking registration thereunder must
submit evidence to show their track record as a group.

The dissent likewise suggests that the deceit committed by ABANG LINGKOD goes into its
qualification as a party-list group since it seriously puts in question the existence of ABANG
LINGKOD as a group per se and the genuineness of its representation of the farmers and
fisherfolk.

It must be stressed that the COMELEC cancelled ABANG LINGKOD s registration solely on
the ground of the lack of its track record -that it falsely represented, by submitting digitally
altered photographs of its supposed activities, that it had a track record in representing the
marginalized and underrepresented. The existence of ABANG LINGKOD as a party-list
group per se and the genuineness of its representation of the farmers and fisherfolks were
never raised in the proceedings before the COMELEC. It would thus be the height of
injustice in the Court, in this certiorari action, would scrutinize the legitimacy of ABANG
LINGKOD as a party-list group and the genuineness of its representation of the farmers and
fisherfolk, and affirm the cancellation of its registration, when the issue is limited only to the
track record of ABANG LINGKOD.

Moreover, ABANG LINGKOD had been previously registered as a party-list group, as in fact
it participated in the May 2010 party-list elections, and it was able to obtain a sufficient
number of votes in the May 2013 party-list elections to obtain a seat in the House of
Representatives. These are circumstances, which clearly indicate that ABANG LINGKOD is
indeed a legitimate party-list group.

ABANG LINGKOD, notwithstanding the cancellation of its registration three days prior to the
May 13, 2013 elections, was able to obtain a total of 260 215 votes out of the 26 722 131
votes that were cast for the party-list,14thus entitling it to a seat in the House of
Representatives. This is indicative of the fact that a considerable portion of the electorate
considers ABANG LINGKOD as truly representative of peasant farmers and fisherfolk.

Anent the photographs submitted by ABANG LINGKOD, these only show book-giving and
medical missions, which are activities it conducted. Suffice it to state, however, that said
activities do not specifically or directly pertain to the interest or advocacy espoused by
ABANG LINGKOD. As such, the misrepresentation committed by ABANG LINGKOD with
regard to said activities would not necessarily militate against its representation of the
farmers and fisherfolk.

Lest it be misunderstood, the Court does not condone the deceit perpetrated by ABANG
LINGKOD in connection with its bid for continued registration under the party-list system.
That ABANG LINGKOD, to establish its track record, submitted photographs that were edited
to make it appear that it conducted activities aimed at ameliorating the plight of the sectors it
represents is a factual finding by the COMELEC, which the Court, considering that it is
supported by substantial evidence, will not disturb. The Court does not tolerate ABANG
LINGKOD s resort to chicanery and its shabby treatment of the requirements for registration
under the party-list system.

Nevertheless, considering that track record is no longer a requirement, a group’s

misrepresentation as to its track record cannot be used as a ground to deny or cancel its
registration -it is no longer material to its qualification under the party-list system. In this
case, ABANG LINGKOD s submission of digitally altered photographs cannot be considered
material to its qualification as a party-list group. Section 6 of R.A. No. 7941, in part, reads:

Sec. 6 Refusal and/or Cancellation o Registration The COMELEC may, motu propio or upon
verified complaint of any interested party, refuse or cancel, after due notice and hearing, the
registration of any national, regional or sectoral party, organization or coalition on any of the
following grounds:

xxxx

(6) It declares untruthful statements in its petition;

Declaration of an untruthful statement in a petition for registration, or in any other document

pertinent to the registration and/or accreditation under the party-list system, as a ground for
the refusal or cancellation of registration under Section 6(6) of R.A. No. 7941, is akin to
material misrepresentation in the certificate of candidacy filed by an individual candidate
under Section 78 of the Omnibus Election Code. Both provisions disallow prospective
candidates from participating in an election for declaring false statements in their eligibility
requirements. Section 78 of the Omnibus Election Code reads:

Sec. 78. A verified petition seeking to deny due course to or cancel a certificate of candidacy
may be filed by any person exclusively on the ground that any material misrepresentation
contained therein as required under Section 74 hereof is false. The petition may be filed at
any time not later than twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided, after due notice and hearing, not later than fifteen days
before the election.

Elucidating on what constitutes material misrepresentation in a certificate of candidacy under

Section 78 of the Omnibus Election Code, the Court, in Lluz v. Commission on
Elections,15 explained that:

From these two cases several conclusions follow. First a misrepresentation in a certificate of
candidacy is material when it refers to a qualification for elective office and affects the
candidate s eligibility. x x x Third a misrepresentation of a non-material fact, or a non-
material misrepresentation, is not a ground to deny due course to or cancel a certificate of
candidacy under Section 78. In other words, for a candidate s certificate of candidacy to be
denied due course or canceled by the COMELEC, the fact misrepresented must pertain to a
qualification for the office sought by the candidate.16 (Emphasis ours)

In Velasco v. Commission on Elections,17 the Court further clarified that a false

representation under Section 78 of the Omnibus Election Code, in order to be a ground to
deny due course or cancel a certificate of candidacy, must consist of a deliberate attempt to
mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. Thus:

The false representation that [Sections 74 and 78 of the Omnibus Election Code] mention
must necessarily pertain to a material fact, not to a mere innocuous mistake. This is
emphasized by the consequences of any material falsity: a candidate who falsifies a material
fact cannot run; if he runs and is elected, cannot serve; in both cases, he or she can be
prosecuted for violation of the election laws. Obviously, these facts are those that refer to a
candidate s qualification for elective office, such as his or her citizenship and residence. The
candidate's status as a registered voter similarly falls under this classification as it is a
requirement that, by law (the Local Government Code), must be reflected in the COC. The
reason for this is obvious: the candidate, if he or she wins, will work for and represent the
local government under which he is running.

Separately from the requirement of materiality, a false representation under Section 78 must
consist of a deliberate attempt to mislead, misinform, or hide a fact which would otherwise
render a candidate ineligible." In other words, it must be made with the intention to deceive
the electorate as to the would-be candidate's qualifications for public office.18 (Citation
omitted and emphasis ours)

Similarly, a declaration of an untruthful statement in a petition for registration under Section

6(6) of R.A. No. 7941, in order to be a ground for the refusal and/or cancellation of
registration under the party-list system, must pertain to the qualification of the party,
organization or coalition under the party-list system. In order to justify the cancellation or
refusal of registration of a group, there must be a deliberate attempt to mislead, misinform, or
hide a fact, which would otherwise render the group disqualified from participating in the
party-list elections.

The digitally altered photographs of activities submitted by ABANG LINGKOD to prove its
continuing qualification under R.A. No. 7941 only pertain to its track record, which, as
already discussed, is no longer a requirement under the new parameters laid down in Atong
Paglaum Simply put, they do not affect the qualification of ABANG LINGKOD as a party-list
group and, hence, could not be used as a ground to cancel its registration under the party-list
system. Further, the Court notes that the COMELEC, in its Resolution dated November 7
2012, asserted that ABANG LINGKOD failed to adduce evidence that would show the track
record of its five nominees, composed of a non-government organization worker, an
employee and three farmers, in uplifting the cause of the sector that the group
represents.1âwphi1 The COMELEC opined that the failure of ABANG LINGKOD to present a
track record of its nominees justified the cancellation of its registration as a party-list group.

The Court does not agree. Assuming arguendo that the nominees of ABANG LINGKOD, as
opined by the COMELEC, indeed do not have track records showing their participation in
activities aimed at improving the conditions of the sector that the group represents, the same
would not affect the registration of ABANG LINGKOD as a party-list group.

To stress, in Atong Paglaum the Court pointed out that [t]he nominees of sectoral parties or
organizations that represent the 'marginalized and underrepresented,' or that represent those
who lack 'well-defined political constituencies,' either must belong to their respective sectors
or must have a track record o advocacy for their respective sectors. Stated otherwise, the
nominee of a party-list groups may either be: first one who actually belongs to the sector
which the party-list group represents, in which case the track record requirement does not
apply; or second one who does not actually belong to the sector which the party-list group
represents but has a track record showing the nominee's active participation in activities
aimed at uplifting the cause of the sector which the group represents."

In the case under consideration, three of the five nominees of ABANG LINGKOD are farmers
and, thus, are not required to present a track record showing their active participation in
activities aimed to promote the sector which ABANG LINGKOD represents, i.e. peasant
farmers and fisherfolk. That two of ABANG LINGKOD's nominees do not actually belong to
the sector it represents is immaterial and would not result in the cancellation of ABANG
LINGKOD's registration as a party-list group. This is clear from the sixth parameter laid down
by the Court in tong Paglaum which states that "national, regional and sectoral organizations
shall not be disqualified if some of their nominees are disqualified, provided that they have at
least one nominee who remains qualified." At the very least, ABANG LINGKOD has three (3)
qualified nominees, being farmers by occupation.

Indeed, the disqualification of one or some of the nominees of a party-list group should not
automatically result in the disqualification of the group.1avvphi1 Otherwise it would accord
the nominees the same significance, which the law holds for the party-list groups; it is still the
fact that the party-list group satisfied the qualifications of the law that is material to consider.
The disqualification of the nominees must simply be regarded as failure to qualify for an
office or position. It should not, in any way, blemish the qualifications of the party-list group
itself with defect. The party-list group must be treated as separate and distinct from its
nominees such that qualifications of the latter must not be considered part and parcel of the
qualifications of the former.

In sum, that ABANG LINGKOD's registration must be cancelled due to its misrepresentation
is a conclusion derived from a simplistic reading of the provisions of R.A. No. 7941 and the
import of the Court's disposition in tong Paglaum. Not every misrepresentation committed by
national, regional, and sectoral groups or organizations would merit the denial or cancellation
of their registration under the party-list system. The misrepresentation must relate to their
qualification as a party-list group. In this regard, the COMELEC gravely abused its discretion
when it insisted on requiring ABANG LINGKOD to prove its track record notwithstanding that
a group s track record is no longer required pursuant to the Court s pronouncement in Atong
Paglaum
Likewise, upholding the cancellation of ABANG LINGKOD s registration, notwithstanding that
it was able to obtain sufficient number of votes for a legislative seat, would serve no purpose
other than to subvert the will of the electorate who voted to give ABANG LINGKOD the
privilege to represent them in the House of Representatives.

WHEREFORE in light of the foregoing disquisitions, the instant petition is hereby GRANTED.
The Resolution dated May 10, 2013 issued by the Commission on Elections in SPP Case
No. 12-238 (PLM), insofar as it affirmed the cancellation of ABANG LINGKOD s registration
and disallowed it to participate in the May 13, 2013 elections is REVERSED and SET
ASIDE.

The Commission on Elections is hereby ORDERED to PROCLAIM ABANG LINGKOD as

one of the winning party-list groups during the May 13, 2013 elections with the number of
seats it may be entitled to based on the total number of votes it garnered during the said
elections.

SO ORDERED.

G.R. No. 189466 February 11, 2010

DARYL GRACE J. ABAYON, Petitioner,

vs.
THE HONORABLE HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL,
PERFECTO C. LUCABAN, JR., RONYL S. DE LA CRUZ and AGUSTIN C.
DOROGA, Respondents.

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

G.R. No. 189506

CONGRESSMAN JOVITO S. PALPARAN, JR., Petitioner,

vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL (HRET), DR. REYNALDO
LESACA, JR., CRISTINA PALABAY, RENATO M. REYES, JR., ERLINDA CADAPAN,
ANTONIO FLORES and JOSELITO USTAREZ,Respondents.

DECISION

ABAD, J.:

These two cases are about the authority of the House of Representatives Electoral Tribunal
(HRET) to pass upon the eligibilities of the nominees of the party-list groups that won seats
in the lower house of Congress.

The Facts and the Case

In G.R. 189466, petitioner Daryl Grace J. Abayon is the first nominee of the Aangat Tayo
party-list organization that won a seat in the House of Representatives during the 2007
elections.
Respondents Perfecto C. Lucaban, Jr., Ronyl S. Dela Cruz, and Agustin C. Doroga, all
registered voters, filed a petition for quo warranto with respondent HRET against Aangat
Tayo and its nominee, petitioner Abayon, in HRET Case 07-041. They claimed that Aangat
Tayo was not eligible for a party-list seat in the House of Representatives, since it did not
represent the marginalized and underrepresented sectors.

Respondent Lucaban and the others with him further pointed out that petitioner Abayon
herself was not qualified to sit in the House as a party-list nominee since she did not belong
to the marginalized and underrepresented sectors, she being the wife of an incumbent
congressional district representative. She moreover lost her bid as party-list representative of
the party-list organization called An Waray in the immediately preceding elections of May 10,
2004.

Petitioner Abayon countered that the Commission on Elections (COMELEC) had already
confirmed the status of Aangat Tayo as a national multi-sectoral party-list organization
representing the workers, women, youth, urban poor, and elderly and that she belonged to
the women sector. Abayon also claimed that although she was the second nominee of An
Waray party-list organization during the 2004 elections, she could not be regarded as having
lost a bid for an elective office.

Finally, petitioner Abayon pointed out that respondent HRET had no jurisdiction over the
petition for quo warranto since respondent Lucaban and the others with him collaterally
attacked the registration of Aangat Tayo as a party-list organization, a matter that fell within
the jurisdiction of the COMELEC. It was Aangat Tayo that was taking a seat in the House of
Representatives, and not Abayon who was just its nominee. All questions involving her
eligibility as first nominee, said Abayon, were internal concerns of Aangat Tayo.

On July 16, 2009 respondent HRET issued an order, dismissing the petition as against
Aangat Tayo but upholding its jurisdiction over the qualifications of petitioner Abayon.1 The
latter moved for reconsideration but the HRET denied the same on September 17,
2009,2 prompting Abayon to file the present petition for special civil action of certiorari.

In G.R. 189506, petitioner Jovito S. Palparan, Jr. is the first nominee of the Bantay party-list
group that won a seat in the 2007 elections for the members of the House of
Representatives. Respondents Reynaldo Lesaca, Jr., Cristina Palabay, Renato M. Reyes,
Jr., Erlinda Cadapan, Antonio Flores, and Joselito Ustarez are members of some other party-
list groups.

Shortly after the elections, respondent Lesaca and the others with him filed with respondent
HRET a petition for quowarranto against Bantay and its nominee, petitioner Palparan, in
HRET Case 07-040. Lesaca and the others alleged that Palparan was ineligible to sit in the
House of Representatives as party-list nominee because he did not belong to the
marginalized and underrepresented sectors that Bantay represented, namely, the victims of
communist rebels, Civilian Armed Forces Geographical Units (CAFGUs), former rebels, and
security guards. Lesaca and the others said that Palparan committed gross human rights
violations against marginalized and underrepresented sectors and organizations.

Petitioner Palparan countered that the HRET had no jurisdiction over his person since it was
actually the party-list Bantay, not he, that was elected to and assumed membership in the
House of Representatives. Palparan claimed that he was just Bantay’s nominee.
Consequently, any question involving his eligibility as first nominee was an internal concern
of Bantay. Such question must be brought, he said, before that party-list group, not before
the HRET.

On July 23, 2009 respondent HRET issued an order dismissing the petition against Bantay
for the reason that the issue of the ineligibility or qualification of the party-list group fell within
the jurisdiction of the COMELEC pursuant to the Party-List System Act. HRET, however,
defended its jurisdiction over the question of petitioner Palparan’s qualifications.3 Palparan
moved for reconsideration but the HRET denied it by a resolution dated September 10,
2009,4 hence, the recourse to this Court through this petition for special civil action of
certiorari and prohibition.

Since the two cases raise a common issue, the Court has caused their consolidation.

The Issue Presented

The common issue presented in these two cases is:

Whether or not respondent HRET has jurisdiction over the question of qualifications of
petitioners Abayon and Palparan as nominees of Aangat Tayo and Bantay party-list
organizations, respectively, who took the seats at the House of Representatives that such
organizations won in the 2007 elections.

The Court’s Ruling

Petitioners Abayon and Palparan have a common theory: Republic Act (R.A.) 7941, the
Party-List System Act, vests in the COMELEC the authority to determine which parties or
organizations have the qualifications to seek party-list seats in the House of Representatives
during the elections. Indeed, the HRET dismissed the petitions for quo warranto filed with it
insofar as they sought the disqualifications of Aangat Tayo and Bantay. Since petitioners
Abayon and Palparan were not elected into office but were chosen by their respective
organizations under their internal rules, the HRET has no jurisdiction to inquire into and
adjudicate their qualifications as nominees.

If at all, says petitioner Abayon, such authority belongs to the COMELEC which already
upheld her qualification as nominee of Aangat Tayo for the women sector. For Palparan,
Bantay’s personality is so inseparable and intertwined with his own person as its nominee so
that the HRET cannot dismiss the quo warranto action against Bantay without dismissing the
action against him.

But, although it is the party-list organization that is voted for in the elections, it is not the
organization that sits as and becomes a member of the House of Representatives. Section 5,
Article VI of the Constitution,5 identifies who the "members" of that House are:

Sec. 5. (1). The House of Representatives shall be composed of not more than two hundred
and fifty members, unless otherwise fixed by law, who shall be elected from legislative
districts apportioned among the provinces, cities, and the Metropolitan Manila area in
accordance with the number of their respective inhabitants, and on the basis of a uniform
and progressive ratio, and those who, as provided by law, shall be elected through a
party-list system of registered national, regional, and sectoral parties or organizations.
(Underscoring supplied)
Clearly, the members of the House of Representatives are of two kinds: "members x x x who
shall be elected from legislative districts" and "those who x x x shall be elected through a
party-list system of registered national, regional, and sectoral parties or
organizations." This means that, from the Constitution’s point of view, it is the party-list
representatives who are "elected" into office, not their parties or organizations. These
representatives are elected, however, through that peculiar party-list system that the
Constitution authorized and that Congress by law established where the voters cast their
votes for the organizations or parties to which such party-list representatives belong.

Once elected, both the district representatives and the party-list representatives are treated
in like manner. They have the same deliberative rights, salaries, and emoluments. They can
participate in the making of laws that will directly benefit their legislative districts or sectors.
They are also subject to the same term limitation of three years for a maximum of three
consecutive terms.

It may not be amiss to point out that the Party-List System Act itself recognizes party-list
nominees as "members of the House of Representatives," thus:

Sec. 2. Declaration of Policy. - The State shall promote proportional representation in the
election of representatives to the House of Representatives through a party-list system of
registered national, regional and sectoral parties or organizations or coalitions thereof, which
will enable Filipino citizens belonging to the marginalized and underrepresented sectors,
organizations and parties, and who lack well-defined political constituencies but who could
contribute to the formulation and enactment of appropriate legislation that will benefit the
nation as a whole, to become members of the House of Representatives. Towards this end,
the State shall develop and guarantee a full, free and open party system in order to attain the
broadest possible representation of party, sectoral or group interests in the House of
Representatives by enhancing their chances to compete for and win seats in the legislature,
and shall provide the simplest scheme possible. (Underscoring supplied)

As this Court also held in Bantay Republic Act or BA-RA 7941 v. Commission on
Elections,6 a party-list representative is in every sense "an elected member of the House of
Representatives." Although the vote cast in a party-list election is a vote for a party, such
vote, in the end, would be a vote for its nominees, who, in appropriate cases, would
eventually sit in the House of Representatives.

Both the Constitution and the Party-List System Act set the qualifications and grounds for
disqualification of party-list nominees. Section 9 of R.A. 7941, echoing the Constitution,
states:

Sec. 9. Qualification of Party-List Nominees. – No person shall be nominated as party-

list representative unless he is a natural-born citizen of the Philippines, a registered
voter, a resident of the Philippines for a period of not less than one (1) year
immediately preceding the day of the election, able to read and write, bona fide
member of the party or organization which he seeks to represent for at least ninety
(90) days preceding the day of the election, and is at least twenty-five (25) years of age
on the day of the election.1avvphi1

In case of a nominee of the youth sector, he must at least be twenty-five (25) but not
more than thirty (30) years of age on the day of the election. Any youth sectoral
representative who attains the age of thirty (30) during his term shall be allowed to
continue until the expiration of his term.
In the cases before the Court, those who challenged the qualifications of petitioners Abayon
and Palparan claim that the two do not belong to the marginalized and underrepresented
sectors that they ought to represent. The Party-List System Act provides that a nominee
must be a "bona fide member of the party or organization which he seeks to represent."7

It is for the HRET to interpret the meaning of this particular qualification of a nominee—the
need for him or her to be a bona fide member or a representative of his party-list
organization—in the context of the facts that characterize petitioners Abayon and Palparan’s
relation to Aangat Tayo and Bantay, respectively, and the marginalized and
underrepresented interests that they presumably embody.

Petitioners Abayon and Palparan of course point out that the authority to determine the
qualifications of a party-list nominee belongs to the party or organization that nominated him.
This is true, initially. The right to examine the fitness of aspiring nominees and, eventually, to
choose five from among them after all belongs to the party or organization that nominates
them.8 But where an allegation is made that the party or organization had chosen and
allowed a disqualified nominee to become its party-list representative in the lower House and
enjoy the secured tenure that goes with the position, the resolution of the dispute is taken out
of its hand.

Parenthetically, although the Party-List System Act does not so state, the COMELEC seems
to believe, when it resolved the challenge to petitioner Abayon, that it has the power to do so
as an incident of its authority to approve the registration of party-list organizations. But the
Court need not resolve this question since it is not raised here and has not been argued by
the parties.

What is inevitable is that Section 17, Article VI of the Constitution9 provides that the HRET
shall be the sole judge of all contests relating to, among other things, the qualifications of the
members of the House of Representatives. Since, as pointed out above, party-list nominees
are "elected members" of the House of Representatives no less than the district
representatives are, the HRET has jurisdiction to hear and pass upon their qualifications. By
analogy with the cases of district representatives, once the party or organization of the party-
list nominee has been proclaimed and the nominee has taken his oath and assumed office
as member of the House of Representatives, the COMELEC’s jurisdiction over election
contests relating to his qualifications ends and the HRET’s own jurisdiction begins.10

The Court holds that respondent HRET did not gravely abuse its discretion when it dismissed
the petitions for quo warranto against Aangat Tayo party-list and Bantay party-list but upheld
its jurisdiction over the question of the qualifications of petitioners Abayon and Palparan.

WHEREFORE, the Court DISMISSES the consolidated petitions and AFFIRMS the Order
dated July 16, 2009 and Resolution 09-183 dated September 17, 2009 in HRET Case 07-
041 of the House of Representatives Electoral Tribunal as well as its Order dated July 23,
2009 and Resolution 09-178 dated September 10, 2009 in HRET Case 07-040.

SO ORDERED.

EN BANC
DANTE V. LIBAN, G.R. No. 175352

REYNALDO M. BERNARDO,

and SALVADOR M. VIARI, Present:

Petitioners,

PUNO, C.J.,

QUISUMBING,

YNARES-SANTIAGO,

CARPIO,

CORONA,

CARPIO MORALES,

CHICO-NAZARIO,

- versus - VELASCO, JR.,

NACHURA,

LEONARDO-DE CASTRO,

BRION,

PERALTA, and

BERSAMIN, JJ.

RICHARD J. GORDON,

Respondent. Promulgated:

July 15, 2009

x--------------------------------------------------x
DECISION

CARPIO, J.:

The Case

This is a petition to declare Senator Richard J. Gordon (respondent) as having forfeited his
seat in the Senate.

The Facts

Petitioners Dante V. Liban, Reynaldo M. Bernardo, and Salvador M. Viari (petitioners) filed
with this Court a Petition to Declare Richard J. Gordon as Having Forfeited His Seat in the
Senate. Petitioners are officers of the Board of Directors of the Quezon City Red Cross
Chapter while respondent is Chairman of the Philippine National Red Cross (PNRC) Board
of Governors.

During respondents incumbency as a member of the Senate of the Philippines,[1] he was

elected Chairman of the PNRC during the 23 February 2006 meeting of the PNRC Board of
Governors. Petitioners allege that by accepting the chairmanship of the PNRC Board of
Governors, respondent has ceased to be a member of the Senate as provided in Section 13,
Article VI of the Constitution, which reads:

SEC. 13. No Senator or Member of the House of Representatives may hold any other office
or employment in the Government, or any subdivision, agency, or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries, during his term
without forfeiting his seat. Neither shall he be appointed to any office which may have been
created or the emoluments thereof increased during the term for which he was elected.

Petitioners cite Camporedondo v. NLRC,[2] which held that the PNRC is a government-
owned or controlled corporation. Petitioners claim that in accepting and holding the position
of Chairman of the PNRC Board of Governors, respondent has automatically forfeited his
seat in the Senate, pursuant to Flores v. Drilon,[3]which held that incumbent national
legislators lose their elective posts upon their appointment to another government office.
In his Comment, respondent asserts that petitioners have no standing to file this petition
which appears to be an action for quo warranto, since the petition alleges that respondent
committed an act which, by provision of law, constitutes a ground for forfeiture of his public
office. Petitioners do not claim to be entitled to the Senate office of respondent. Under
Section 5, Rule 66 of the Rules of Civil Procedure, only a person claiming to be entitled to a
public office usurped or unlawfully held by another may bring an action for quo warranto in
his own name. If the petition is one for quo warranto, it is already barred by prescription
since under Section 11, Rule 66 of the Rules of Civil Procedure, the action should be
commenced within one year after the cause of the public officers forfeiture of office. In this
case, respondent has been working as a Red Cross volunteer for the past 40 years.
Respondent was already Chairman of the PNRC Board of Governors when he was elected
Senator in May 2004, having been elected Chairman in 2003 and re-elected in 2005.

Respondent contends that even if the present petition is treated as a taxpayers suit,
petitioners cannot be allowed to raise a constitutional question in the absence of any claim
that they suffered some actual damage or threatened injury as a result of the allegedly illegal
act of respondent. Furthermore, taxpayers are allowed to sue only when there is a claim of
illegal disbursement of public funds, or that public money is being diverted to any improper
purpose, or where petitioners seek to restrain respondent from enforcing an invalid law that
results in wastage of public funds.

Respondent also maintains that if the petition is treated as one for declaratory relief, this
Court would have no jurisdiction since original jurisdiction for declaratory relief lies with the
Regional Trial Court.

Respondent further insists that the PNRC is not a government-owned or controlled

corporation and that the prohibition under Section 13, Article VI of the Constitution does not
apply in the present case since volunteer service to the PNRC is neither an office nor an
employment.

In their Reply, petitioners claim that their petition is neither an action for quo warranto nor an
action for declaratory relief. Petitioners maintain that the present petition is a taxpayers suit
questioning the unlawful disbursement of funds, considering that respondent has been
drawing his salaries and other compensation as a Senator even if he is no longer entitled to
his office. Petitioners point out that this Court has jurisdiction over this petition since it
involves a legal or constitutional issue which is of transcendental importance.

The Issues

Petitioners raise the following issues:

1. Whether the Philippine National Red Cross (PNRC) is a government- owned or controlled
corporation;

2. Whether Section 13, Article VI of the Philippine Constitution applies to the case of
respondent who is Chairman of the PNRC and at the same time a Member of the Senate;

3. Whether respondent should be automatically removed as a Senator pursuant to Section

13, Article VI of the Philippine Constitution; and

4. Whether petitioners may legally institute this petition against respondent.[4]

The substantial issue boils down to whether the office of the PNRC Chairman is a
government office or an office in a government-owned or controlled corporation for purposes
of the prohibition in Section 13, Article VI of the Constitution.

The Courts Ruling

We find the petition without merit.

Petitioners Have No Standing to File this Petition

A careful reading of the petition reveals that it is an action for quo warranto. Section 1, Rule
66 of the Rules of Court provides:
Section 1. Action by Government against individuals. An action for the usurpation of a
public office, position or franchise may be commenced by a verified petition brought in
the name of the Republic of the Philippines against:

(a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office,
position or franchise;

(b) A public officer who does or suffers an act which by provision of law, constitutes a
ground for the forfeiture of his office; or

(c) An association which acts as a corporation within the Philippines without being legally
incorporated or without lawful authority so to act. (Emphasis supplied)

Petitioners allege in their petition that:

4. Respondent became the Chairman of the PNRC when he was elected as such during the
First Regular Luncheon-Meeting of the Board of Governors of the PNRC held on February
23, 2006, the minutes of which is hereto attached and made integral part hereof as Annex A.

5. Respondent was elected as Chairman of the PNRC Board of Governors, during his
incumbency as a Member of the House of Senate of the Congress of the Philippines, having
been elected as such during the national elections last May 2004.

6. Since his election as Chairman of the PNRC Board of Governors, which position he duly
accepted, respondent has been exercising the powers and discharging the functions and
duties of said office, despite the fact that he is still a senator.

7. It is the respectful submission of the petitioner[s] that by accepting the chairmanship of

the Board of Governors of the PNRC, respondent has ceased to be a Member of the
House of Senate as provided in Section 13, Article VI of the Philippine Constitution, x x
x

xxxx

10. It is respectfully submitted that in accepting the position of Chairman of the Board of
Governors of the PNRC on February 23, 2006, respondent has automatically forfeited
his seat in the House of Senate and, therefore, has long ceased to be a Senator,
pursuant to the ruling of this Honorable Court in the case of FLORES, ET AL. VS. DRILON
AND GORDON, G.R. No. 104732, x x x

11. Despite the fact that he is no longer a senator, respondent continues to act as such and
still performs the powers, functions and duties of a senator, contrary to the constitution, law
and jurisprudence.

12. Unless restrained, therefore, respondent will continue to falsely act and represent himself
as a senator or member of the House of Senate, collecting the salaries, emoluments and
other compensations, benefits and privileges appertaining and due only to the legitimate
senators, to the damage, great and irreparable injury of the Government and the Filipino
people.[5] (Emphasis supplied)

Thus, petitioners are alleging that by accepting the position of Chairman of the PNRC Board
of Governors, respondent has automatically forfeited his seat in the Senate. In short,
petitioners filed an action for usurpation of public office against respondent, a public officer
who allegedly committed an act which constitutes a ground for the forfeiture of his public
office. Clearly, such an action is for quo warranto, specifically under Section 1(b), Rule 66 of
the Rules of Court.

Quo warranto is generally commenced by the Government as the proper party plaintiff.
However, under Section 5, Rule 66 of the Rules of Court, an individual may commence such
an action if he claims to be entitled to the public office allegedly usurped by another, in which
case he can bring the action in his own name. The person instituting quo warranto
proceedings in his own behalf must claim and be able to show that he is entitled to the office
in dispute, otherwise the action may be dismissed at any stage.[6] In the present case,
petitioners do not claim to be entitled to the Senate office of respondent. Clearly, petitioners
have no standing to file the present petition.

Even if the Court disregards the infirmities of the petition and treats it as a taxpayers suit, the
petition would still fail on the merits.

PNRC is a Private Organization Performing Public Functions

On 22 March 1947, President Manuel A. Roxas signed Republic Act No. 95,[7] otherwise
known as the PNRC Charter. The PNRC is a non-profit, donor-funded, voluntary,
humanitarian organization, whose mission is to bring timely, effective, and compassionate
humanitarian assistance for the most vulnerable without consideration of nationality, race,
religion, gender, social status, or political affiliation.[8] The PNRC provides six major services:
Blood Services, Disaster Management, Safety Services, Community Health and Nursing,
Social Services and Voluntary Service.[9]

The Republic of the Philippines, adhering to the Geneva Conventions, established the PNRC
as a voluntary organization for the purpose contemplated in the Geneva Convention of 27
July 1929.[10] The Whereas clauses of the PNRC Charter read:
WHEREAS, there was developed at Geneva, Switzerland, on August 22, 1864, a convention
by which the nations of the world were invited to join together in diminishing, so far lies within
their power, the evils inherent in war;

WHEREAS, more than sixty nations of the world have ratified or adhered to the subsequent
revision of said convention, namely the Convention of Geneva of July 29 [sic], 1929 for the
Amelioration of the Condition of the Wounded and Sick of Armies in the Field (referred to in
this Charter as the Geneva Red Cross Convention);

WHEREAS, the Geneva Red Cross Convention envisages the establishment in each
country of a voluntary organization to assist in caring for the wounded and sick of the
armed forces and to furnish supplies for that purpose;

WHEREAS, the Republic of the Philippines became an independent nation on July 4,

1946 and proclaimed its adherence to the Geneva Red Cross Convention on February
14, 1947, and by that action indicated its desire to participate with the nations of the
world in mitigating the suffering caused by war and to establish in the Philippines
a voluntary organization for that purpose as contemplated by the Geneva Red Cross
Convention;

WHEREAS, there existed in the Philippines since 1917 a Charter of the American National
Red Cross which must be terminated in view of the independence of the Philippines; and

WHEREAS, the volunteer organizations established in the other countries which have ratified
or adhered to the Geneva Red Cross Convention assist in promoting the health and welfare
of their people in peace and in war, and through their mutual assistance and cooperation
directly and through their international organizations promote better understanding and
sympathy among the peoples of the world. (Emphasis supplied)

The PNRC is a member National Society of the International Red Cross and Red Crescent
Movement (Movement), which is composed of the International Committee of the Red Cross
(ICRC), the International Federation of Red Cross and Red Crescent Societies (International
Federation), and the National Red Cross and Red Crescent Societies (National Societies).
The Movement is united and guided by its seven Fundamental Principles:

1. HUMANITY The International Red Cross and Red Crescent Movement, born of a desire to
bring assistance without discrimination to the wounded on the battlefield, endeavors, in its
international and national capacity, to prevent and alleviate human suffering wherever it may
be found. Its purpose is to protect life and health and to ensure respect for the human being.
It promotes mutual understanding, friendship, cooperation and lasting peace amongst all
peoples.

2. IMPARTIALITY It makes no discrimination as to nationality, race, religious beliefs, class or

political opinions. It endeavors to relieve the suffering of individuals, being guided solely by
their needs, and to give priority to the most urgent cases of distress.
3. NEUTRALITY In order to continue to enjoy the confidence of all, the Movement may
not take sides in hostilities or engage at any time in controversies of a political, racial,
religious or ideological nature.

4. INDEPENDENCE The Movement is independent. The National Societies, while

auxiliaries in the humanitarian services of their governments and subject to the laws
of their respective countries, must always maintain their autonomy so that they may
be able at all times to act in accordance with the principles of the Movement.

5. VOLUNTARY SERVICE It is a voluntary relief movement not prompted in any manner by

desire for gain.

6. UNITY There can be only one Red Cross or one Red Crescent Society in any one country.
It must be open to all. It must carry on its humanitarian work throughout its territory.

7. UNIVERSALITY The International Red Cross and Red Crescent Movement, in which all
Societies have equal status and share equal responsibilities and duties in helping each
other, is worldwide. (Emphasis supplied)

The Fundamental Principles provide a universal standard of reference for all members of the
Movement. The PNRC, as a member National Society of the Movement, has the duty to
uphold the Fundamental Principles and ideals of the Movement. In order to be recognized as
a National Society, the PNRC has to be autonomous and must operate in conformity with
the Fundamental Principles of the Movement.[11]

The reason for this autonomy is fundamental. To be accepted by warring belligerents as

neutral workers during international or internal armed conflicts, the PNRC volunteers must
not be seen as belonging to any side of the armed conflict. In the Philippines where there is a
communist insurgency and a Muslim separatist rebellion, the PNRC cannot be seen as
government-owned or controlled, and neither can the PNRC volunteers be identified as
government personnel or as instruments of government policy. Otherwise, the insurgents or
separatists will treat PNRC volunteers as enemies when the volunteers tend to the wounded
in the battlefield or the displaced civilians in conflict areas.

Thus, the PNRC must not only be, but must also be seen to be, autonomous, neutral and
independent in order to conduct its activities in accordance with the Fundamental Principles.
The PNRC must not appear to be an instrument or agency that implements government
policy; otherwise, it cannot merit the trust of all and cannot effectively carry out its mission as
a National Red Cross Society.[12] It is imperative that the PNRC must be autonomous,
neutral, and independent in relation to the State.

To ensure and maintain its autonomy, neutrality, and independence, the PNRC cannot be
owned or controlled by the government. Indeed, the Philippine government does not own the
PNRC. The PNRC does not have government assets and does not receive any appropriation
from the Philippine Congress.[13] The PNRC is financed primarily by contributions from
private individuals and private entities obtained through solicitation campaigns organized by
its Board of Governors, as provided under Section 11 of the PNRC Charter:

SECTION 11. As a national voluntary organization, the Philippine National Red Cross
shall be financed primarily by contributions obtained through solicitation campaigns
throughout the year which shall be organized by the Board of Governors and
conducted by the Chapters in their respective jurisdictions. These fund raising
campaigns shall be conducted independently of other fund drives by other organizations.
(Emphasis supplied)

The government does not control the PNRC. Under the PNRC Charter, as amended, only
six of the thirty members of the PNRC Board of Governors are appointed by the
President of the Philippines. Thus, twenty-four members, or four-fifths (4/5), of the PNRC
Board of Governors are not appointed by the President.Section 6 of the PNRC Charter, as
amended, provides:

SECTION 6. The governing powers and authority shall be vested in a Board of Governors
composed of thirty members, six of whom shall be appointed by the President of the
Philippines, eighteen shall be elected by chapter delegates in biennial conventions and the
remaining six shall be selected by the twenty-four members of the Board already chosen.x x
x.

Thus, of the twenty-four members of the PNRC Board, eighteen are elected by the chapter
delegates of the PNRC, and six are elected by the twenty-four members already chosen a
select group where the private sector members have three-fourths majority. Clearly, an
overwhelming majority of four-fifths of the PNRC Board are elected or chosen by the
private sector members of the PNRC.

The PNRC Board of Governors, which exercises all corporate powers of the PNRC, elects
the PNRC Chairman and all other officers of the PNRC. The incumbent Chairman of PNRC,
respondent Senator Gordon, was elected, as all PNRC Chairmen are elected, by a private
sector-controlled PNRC Board four-fifths of whom are private sector members of the
PNRC. The PNRC Chairman is not appointed by the President or by any subordinate
government official.
Under Section 16, Article VII of the Constitution,[14] the President appoints all officials and
employees in the Executive branch whose appointments are vested in the President by the
Constitution or by law. The President also appoints those whose appointments are not
otherwise provided by law. Under this Section 16, the law may also authorize the heads of
departments, agencies, commissions, or boards to appoint officers lower in rank than such
heads of departments, agencies, commissions or boards.[15] In Rufino v. Endriga,[16] the
Court explained appointments under Section 16 in this wise:

Under Section 16, Article VII of the 1987 Constitution, the President appoints three groups of
officers. The first group refers to the heads of the Executive departments, ambassadors,
other public ministers and consuls, officers of the armed forces from the rank of colonel or
naval captain, and other officers whose appointments are vested in the President by the
Constitution. The second group refers to those whom the President may be authorized by
law to appoint. The third group refers to all other officers of the Government whose
appointments are not otherwise provided by law.

Under the same Section 16, there is a fourth group of lower-ranked officers whose
appointments Congress may by law vest in the heads of departments, agencies,
commissions, or boards. x x x

xxx

In a department in the Executive branch, the head is the Secretary. The law may not
authorize the Undersecretary, acting as such Undersecretary, to appoint lower-ranked
officers in the Executive department. In an agency, the power is vested in the head of the
agency for it would be preposterous to vest it in the agency itself. In a commission, the head
is the chairperson of the commission. In a board, the head is also the chairperson of the
board. In the last three situations, the law may not also authorize officers other than the
heads of the agency, commission, or board to appoint lower-ranked officers.

xxx

The Constitution authorizes Congress to vest the power to appoint lower-ranked officers
specifically in the heads of the specified offices, and in no other person. The word heads
refers to the chairpersons of the commissions or boards and not to their members, for
several reasons.
The President does not appoint the Chairman of the PNRC. Neither does the head of any
department, agency, commission or board appoint the PNRC Chairman. Thus, the PNRC
Chairman is not an official or employee of the Executive branch since his appointment does
not fall under Section 16, Article VII of the Constitution.Certainly, the PNRC Chairman is not
an official or employee of the Judiciary or Legislature. This leads us to the obvious
conclusion that the PNRC Chairman is not an official or employee of the Philippine
Government. Not being a government official or employee, the PNRC Chairman, as
such, does not hold a government office or employment.

Under Section 17, Article VII of the Constitution,[17] the President exercises control
over all government offices in the Executive branch. If an office is legally not under the
control of the President, then such office is not part of the Executive branch. In Rufino
v. Endriga,[18] the Court explained the Presidents power of control over all government offices
as follows:

Every government office, entity, or agency must fall under the Executive, Legislative, or
Judicial branches, or must belong to one of the independent constitutional bodies, or must be
a quasi-judicial body or local government unit. Otherwise, such government office, entity, or
agency has no legal and constitutional basis for its existence.

The CCP does not fall under the Legislative or Judicial branches of government. The CCP is
also not one of the independent constitutional bodies. Neither is the CCP a quasi-judicial
body nor a local government unit. Thus, the CCP must fall under the Executive branch.
Under the Revised Administrative Code of 1987, any agency not placed by law or order
creating them under any specific department falls under the Office of the President.

Since the President exercises control over all the executive departments, bureaus, and
offices, the President necessarily exercises control over the CCP which is an office in the
Executive branch. In mandating that the President shall have control of all executive . . .
offices, Section 17, Article VII of the 1987 Constitution does not exempt any executive office
one performing executive functions outside of the independent constitutional bodies from the
Presidents power of control. There is no dispute that the CCP performs executive, and not
legislative, judicial, or quasi-judicial functions.

The Presidents power of control applies to the acts or decisions of all officers in the
Executive branch. This is true whether such officers are appointed by the President or
by heads of departments, agencies, commissions, or boards. The power of control
means the power to revise or reverse the acts or decisions of a subordinate officer
involving the exercise of discretion.

In short, the President sits at the apex of the Executive branch, and exercises control of all
the executive departments, bureaus, and offices. There can be no instance under the
Constitution where an officer of the Executive branch is outside the control of the President.
The Executive branch is unitary since there is only one President vested with executive
power exercising control over the entire Executive branch. Any office in the Executive branch
that is not under the control of the President is a lost command whose existence is without
any legal or constitutional basis. (Emphasis supplied)

An overwhelming four-fifths majority of the PNRC Board are private sector individuals
elected to the PNRC Board by the private sector members of the PNRC. The PNRC Board
exercises all corporate powers of the PNRC. The PNRC is controlled by private sector
individuals. Decisions or actions of the PNRC Board are not reviewable by the
President. The President cannot reverse or modify the decisions or actions of the
PNRC Board. Neither can the President reverse or modify the decisions or actions of
the PNRC Chairman. It is the PNRC Board that can review, reverse or modify the decisions
or actions of the PNRC Chairman. This proves again that the office of the PNRC Chairman is
a private office, not a government office.

Although the State is often represented in the governing bodies of a National Society, this
can be justified by the need for proper coordination with the public authorities, and the
government representatives may take part in decision-making within a National Society.
However, the freely-elected representatives of a National Societys active members must
remain in a large majority in a National Societys governing bodies.[19]

The PNRC is not government-owned but privately owned. The vast majority of the
thousands of PNRC members are private individuals, including students. Under the
PNRC Charter, those who contribute to the annual fund campaign of the PNRC are entitled
to membership in the PNRC for one year. Thus, any one between 6 and 65 years of age can
be a PNRC member for one year upon contributing P35, P100, P300, P500 or P1,000 for the
year.[20] Even foreigners, whether residents or not, can be members of the PNRC. Section 5
of the PNRC Charter, as amended by Presidential Decree No. 1264,[21] reads:

SEC. 5. Membership in the Philippine National Red Cross shall be open to the entire
population in the Philippines regardless of citizenship. Any contribution to the Philippine
National Red Cross Annual Fund Campaign shall entitle the contributor to membership for
one year and said contribution shall be deductible in full for taxation purposes.
Thus, the PNRC is a privately owned, privately funded, and privately run charitable
organization. The PNRC is not a government-owned or controlled corporation.

Petitioners anchor their petition on the 1999 case of Camporedondo v. NLRC,[22] which ruled
that the PNRC is a government-owned or controlled corporation. In ruling that the PNRC is a
government-owned or controlled corporation, the simple test used was whether the
corporation was created by its own special charter for the exercise of a public function or by
incorporation under the general corporation law. Since the PNRC was created under a
special charter, the Court then ruled that it is a government corporation. However,
the Camporedondo ruling failed to consider the definition of a government-owned or
controlled corporation as provided under Section 2(13) of the Introductory Provisions of the
Administrative Code of 1987:

SEC. 2. General Terms Defined. x x x

(13) Government-owned or controlled corporation refers to any agency organized as a

stock or non-stock corporation, vested with functions relating to public needs
whether governmental or proprietary in nature, and owned by the Government directly
or through its instrumentalities either wholly, or where applicable as in the case of
stock corporations, to the extent of at least fifty-one (51) percent of its capital
stock: Provided, That government-owned or controlled corporations may be further
categorized by the Department of the Budget, the Civil Service Commission, and the
Commission on Audit for purposes of the exercise and discharge of their respective powers,
functions and responsibilities with respect to such corporations.(Boldfacing and underscoring
supplied)

A government-owned or controlled corporation must be owned by the government, and in

the case of a stock corporation, at least a majority of its capital stock must be owned by the
government. In the case of a non-stock corporation, by analogy at least a majority of the
members must be government officials holding such membership by appointment or
designation by the government. Under this criterion, and as discussed earlier, the
government does not own or control PNRC.

The PNRC Charter is Violative of the Constitutional Proscription against the Creation
of Private Corporations by Special Law
The 1935 Constitution, as amended, was in force when the PNRC was created by special
charter on 22 March 1947. Section 7, Article XIV of the 1935 Constitution, as
amended, reads:

SEC. 7. The Congress shall not, except by general law, provide for the formation,
organization, or regulation of private corporations, unless such corporations are owned or
controlled by the Government or any subdivision or instrumentality thereof.

The subsequent 1973 and 1987 Constitutions contain similar provisions prohibiting Congress
from creating private corporations except by general law. Section 1 of the PNRC Charter, as
amended, creates the PNRC as a body corporate and politic, thus:

SECTION 1. There is hereby created in the Republic of the Philippines a body

corporate and politic to be the voluntary organization officially designated to assist
the Republic of the Philippines in discharging the obligations set forth in the Geneva
Conventions and to perform such other duties as are inherent upon a National Red
Cross Society. The national headquarters of this Corporation shall be located in
Metropolitan Manila. (Emphasis supplied)

In Feliciano v. Commission on Audit,[23] the Court explained the constitutional provision

prohibiting Congress from creating private corporations in this wise:

We begin by explaining the general framework under the fundamental law. The Constitution
recognizes two classes of corporations. The first refers to private corporations created under
a general law. The second refers to government-owned or controlled corporations created by
special charters. Section 16, Article XII of the Constitution provides:

Sec. 16. The Congress shall not, except by general law, provide for the formation,
organization, or regulation of private corporations. Government-owned or controlled
corporations may be created or established by special charters in the interest of the common
good and subject to the test of economic viability.
The Constitution emphatically prohibits the creation of private corporations except by general
law applicable to all citizens. The purpose of this constitutional provision is to ban private
corporations created by special charters, which historically gave certain individuals, families
or groups special privileges denied to other citizens.

In short, Congress cannot enact a law creating a private corporation with a special
charter. Such legislation would be unconstitutional. Private corporations may exist
only under a general law. If the corporation is private, it must necessarily exist under a
general law. Stated differently, only corporations created under a general law can qualify as
private corporations. Under existing laws, the general law is the Corporation Code, except
that the Cooperative Code governs the incorporation of cooperatives.

The Constitution authorizes Congress to create government-owned or controlled

corporations through special charters. Since private corporations cannot have special
charters, it follows that Congress can create corporations with special charters only if such
corporations are government-owned or controlled.[24] (Emphasis supplied)

In Feliciano, the Court held that the Local Water Districts are government-owned or
controlled corporations since they exist by virtue of Presidential Decree No. 198, which
constitutes their special charter. The seed capital assets of the Local Water Districts, such as
waterworks and sewerage facilities, were public property which were managed, operated by
or under the control of the city, municipality or province before the assets were transferred to
the Local Water Districts. The Local Water Districts also receive subsidies and loans from
the Local Water Utilities Administration (LWUA). In fact, under the 2009 General
Appropriations Act,[25] the LWUA has a budget amounting to P400,000,000 for its subsidy
requirements.[26] There is no private capital invested in the Local Water Districts. The
capital assets and operating funds of the Local Water Districts all come from the
government, either through transfer of assets, loans, subsidies or the income from such
assets or funds.

The government also controls the Local Water Districts because the municipal or city mayor,
or the provincial governor, appoints all the board directors of the Local Water
Districts. Furthermore, the board directors and other personnel of the Local Water Districts
are government employees subject to civil service laws and anti-graft laws. Clearly, the Local
Water Districts are considered government-owned or controlled corporations not only
because of their creation by special charter but also because the government in fact owns
and controls the Local Water Districts.
Just like the Local Water Districts, the PNRC was created through a special
charter. However, unlike the Local Water Districts, the elements of government
ownership and control are clearly lacking in the PNRC. Thus, although the PNRC is
created by a special charter, it cannot be considered a government-owned or controlled
corporation in the absence of the essential elements of ownership and control by the
government. In creating the PNRC as a corporate entity, Congress was in fact creating a
private corporation. However, the constitutional prohibition against the creation of private
corporations by special charters provides no exception even for non-profit or charitable
corporations. Consequently, the PNRC Charter, insofar as it creates the PNRC as a private
corporation and grants it corporate powers,[27] is void for being
unconstitutional. Thus, Sections
1,[28] 2,[29] 3,[30] 4(a),[31] 5,[32] 6,[33] 7,[34] 8,[35] 9,[36] 10,[37] 11,[38] 12,[39] and 13[40] of the PNRC
Charter, as amended, are void.

The other provisions[41] of the PNRC Charter remain valid as they can be considered as a
recognition by the State that the unincorporated PNRC is the local National Society of the
International Red Cross and Red Crescent Movement, and thus entitled to the benefits,
exemptions and privileges set forth in the PNRC Charter. The other provisions of the PNRC
Charter implement the Philippine Governments treaty obligations under Article 4(5) of the
Statutes of the International Red Cross and Red Crescent Movement, which provides that to
be recognized as a National Society, the Society must be duly recognized by the legal
government of its country on the basis of the Geneva Conventions and of the national
legislation as a voluntary aid society, auxiliary to the public authorities in the humanitarian
field.

In sum, we hold that the office of the PNRC Chairman is not a government office or an office
in a government-owned or controlled corporation for purposes of the prohibition in Section
13, Article VI of the 1987 Constitution. However, since the PNRC Charter is void insofar as it
creates the PNRC as a private corporation, the PNRC should incorporate under the
Corporation Code and register with the Securities and Exchange Commission if it wants to
be a private corporation.

WHEREFORE, we declare that the office of the Chairman of the Philippine National Red
Cross is not a government office or an office in a government-owned or controlled
corporation for purposes of the prohibition in Section 13, Article VI of the 1987 Constitution.
We also declare that Sections 1, 2, 3, 4(a), 5, 6, 7, 8, 9, 10, 11, 12, and 13 of the Charter of
the Philippine National Red Cross, or Republic Act No. 95, as amended by Presidential
Decree Nos. 1264 and 1643, are VOID because they create the PNRC as a private
corporation or grant it corporate powers.

SO ORDERED.

THIRD DIVISION

ANTERO J. POBRE, A.C. No. 7399

Complainant,

Present:

- versus - CHICO-NAZARIO, J.,

Acting Chairperson,

CARPIO MORALES,*

Sen. MIRIAM DEFENSOR- SANTIAGO, VELASCO, JR.,

Respondent. NACHURA, and

PERALTA, JJ.

Promulgated:

August 25, 2009

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

DECISION
VELASCO, JR., J.:

In his sworn letter/complaint dated December 22, 2006, with enclosures, Antero J. Pobre
invites the Courts attention to the following excerpts of Senator Miriam Defensor-Santiagos
speech delivered on the Senate floor:

x x x I am not angry. I am irate. I am foaming in the mouth. I am homicidal. I am suicidal. I

am humiliated, debased, degraded. And I am not only that, I feel like throwing up to be living
my middle years in a country of this nature. I am nauseated. I spit on the face of Chief
Justice Artemio Panganiban and his cohorts in the Supreme Court, I am no longer interested
in the position [of Chief Justice] if I was to be surrounded by idiots. I would rather be in
another environment but not in the Supreme Court of idiots x x x.

To Pobre, the foregoing statements reflected a total disrespect on the part of the speaker
towards then Chief Justice Artemio Panganiban and the other members of the Court and
constituted direct contempt of court. Accordingly, Pobre asks that disbarment proceedings or
other disciplinary actions be taken against the lady senator.

In her comment on the complaint dated April 25, 2007, Senator Santiago, through counsel,
does not deny making the aforequoted statements. She, however, explained that those
statements were covered by the constitutional provision on parliamentary immunity, being
part of a speech she delivered in the discharge of her duty as member of Congress or its
committee. The purpose of her speech, according to her, was to bring out in the open
controversial anomalies in governance with a view to future remedial legislation. She averred
that she wanted to expose what she believed to be an unjust act of the Judicial Bar Council
[JBC], which, after sending out public invitations for nomination to the soon to-be vacated
position of Chief Justice, would eventually inform applicants that only incumbent justices of
the Supreme Court would qualify for nomination. She felt that the JBC should have at least
given an advanced advisory that non-sitting members of the Court, like her, would not be
considered for the position of Chief Justice.

The immunity Senator Santiago claims is rooted primarily on the provision of Article VI,
Section 11 of the Constitution, which provides: A Senator or Member of the House of
Representative shall, in all offenses punishable by not more than six years imprisonment, be
privileged from arrest while the Congress is in session. No member shall be questioned
nor be held liable in any other place for any speech or debate in the Congress or in
any committee thereof. Explaining the import of the underscored portion of the provision,
the Court, in Osmea, Jr. v. Pendatun, said:

Our Constitution enshrines parliamentary immunity which is a fundamental privilege

cherished in every legislative assembly of the democratic world. As old as the English
Parliament, its purpose is to enable and encourage a representative of the public to
discharge his public trust with firmness and success for it is indispensably necessary that he
should enjoy the fullest liberty of speech and that he should be protected from resentment of
every one, however, powerful, to whom the exercise of that liberty may occasion offense.[1]

As American jurisprudence puts it, this legislative privilege is founded upon long experience
and arises as a means of perpetuating inviolate the functioning process of the legislative
department. Without parliamentary immunity, parliament, or its equivalent, would degenerate
into a polite and ineffective debating forum.Legislators are immune from deterrents to the
uninhibited discharge of their legislative duties, not for their private indulgence, but for the
public good. The privilege would be of little value if they could be subjected to the cost and
inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of
a judgment against them based upon a judges speculation as to the motives.[2]

This Court is aware of the need and has in fact been in the forefront in upholding the
institution of parliamentary immunity and promotion of free speech. Neither has the Court lost
sight of the importance of the legislative and oversight functions of the Congress that enable
this representative body to look diligently into every affair of government, investigate and
denounce anomalies, and talk about how the country and its citizens are being
served. Courts do not interfere with the legislature or its members in the manner they
perform their functions in the legislative floor or in committee rooms. Any claim of an
unworthy purpose or of the falsity and mala fides of the statement uttered by the member of
the Congress does not destroy the privilege.[3] The disciplinary authority of the
assembly[4] and the voters, not the courts, can properly discourage or correct such abuses
committed in the name of parliamentary immunity.[5]

For the above reasons, the plea of Senator Santiago for the dismissal of the complaint for
disbarment or disciplinary action is well taken. Indeed, her privilege speech is not actionable
criminally or in a disciplinary proceeding under the Rules of Court. It is felt, however, that this
could not be the last word on the matter.

The Court wishes to express its deep concern about the language Senator Santiago, a
member of the Bar, used in her speech and its effect on the administration of justice. To the
Court, the lady senator has undoubtedly crossed the limits of decency and good professional
conduct. It is at once apparent that her statements in question were intemperate and highly
improper in substance. To reiterate, she was quoted as stating that she wanted to spit on the
face of Chief Justice Artemio Panganiban and his cohorts in the Supreme Court, and calling
the Court a Supreme Court of idiots.
The lady senator alluded to In Re: Vicente Sotto.[6] We draw her attention to the ensuing
passage in Sotto that she should have taken to heart in the first place:

x x x [I]f the people lose their confidence in the honesty and integrity of this Court and believe
that they cannot expect justice therefrom, they might be driven to take the law into their own
hands, and disorder and perhaps chaos would be the result.

No lawyer who has taken an oath to maintain the respect due to the courts should be
allowed to erode the peoples faith in the judiciary. In this case, the lady senator clearly
violated Canon 8, Rule 8.01 and Canon 11 of the Code of Professional Responsibility, which
respectively provide:

Canon 8, Rule 8.01.A lawyer shall not, in his professional dealings, use language which is
abusive, offensive or otherwise improper.

Canon 11.A lawyer shall observe and maintain the respect due to the courts and to the
judicial officers and should insist on similar conduct by others.

Senator/Atty. Santiago is a cut higher than most lawyers. Her achievements speak for
themselves. She was a former Regional Trial Court judge, a law professor, an oft-cited
authority on constitutional and international law, an author of numerous law textbooks, and
an elected senator of the land. Needless to stress, Senator Santiago, as a member of the
Bar and officer of the court, like any other, is duty-bound to uphold the dignity and authority
of this Court and to maintain the respect due its members. Lawyers in public service are
keepers of public faith and are burdened with the higher degree of social responsibility,
perhaps higher than their brethren in private practice.[7] Senator Santiago should have
known, as any perceptive individual, the impact her statements would make on the peoples
faith in the integrity of the courts.

As Senator Santiago alleged, she delivered her privilege speech as a prelude to crafting
remedial legislation on the JBC. This allegation strikes the Court as an afterthought in light of
the insulting tenor of what she said. We quote the passage once more:
x x x I am not angry. I am irate. I am foaming in the mouth. I am homicidal. I am
suicidal. I am humiliated, debased, degraded. And I am not only that, I feel like throwing up
to be living my middle years in a country of this nature. I am nauseated. I spit on the face of
Chief Justice Artemio Panganiban and his cohorts in the Supreme Court, I am no longer
interested in the position [of Chief Justice] if I was to be surrounded by idiots. I would rather
be in another environment but not in the Supreme Court of idiots x x x. (Emphasis ours.)

A careful re-reading of her utterances would readily show that her statements were
expressions of personal anger and frustration at not being considered for the post of Chief
Justice. In a sense, therefore, her remarks were outside the pale of her official parliamentary
functions. Even parliamentary immunity must not be allowed to be used as a vehicle to
ridicule, demean, and destroy the reputation of the Court and its magistrates, nor as armor
for personal wrath and disgust. Authorities are agreed that parliamentary immunity is not an
individual privilege accorded the individual members of the Parliament or Congress for their
personal benefit, but rather a privilege for the benefit of the people and the institution that
represents them.

To be sure, Senator Santiago could have given vent to her anger without indulging in
insulting rhetoric and offensive personalities.

Lest it be overlooked, Senator Santiagos outburst was directly traceable to what she
considered as an unjust act the JBC had taken in connection with her application for the
position of Chief Justice. But while the JBC functions under the Courts supervision, its
individual members, save perhaps for the Chief Justice who sits as the JBCs ex-
officio chairperson,[8] have no official duty to nominate candidates for appointment to the
position of Chief Justice. The Court is, thus, at a loss to understand Senator Santiagos
wholesale and indiscriminate assault on the members of the Court and her choice of critical
and defamatory words against all of them.

At any event, equally important as the speech and debate clause of Art. VI, Sec. 11 of the
Constitution is Sec. 5(5) of Art. VIII of the Constitution that provides:

Section 5. The Supreme Court shall have the following powers:

xxxx
(5) Promulgate rules concerning the protection and enforcement of constitutional rights,
pleading, practice, and procedure in all courts, the admission to the practice of the law, the
Integrated Bar, and legal assistance to the underprivileged. (Emphasis ours.)

The Court, besides being authorized to promulgate rules concerning pleading, practice, and
procedure in all courts, exercises specific authority to promulgate rules governing the
Integrated Bar with the end in view that the integration of the Bar will, among other things:

(4) Shield the judiciary, which traditionally cannot defend itself except within its own forum,
from the assaults that politics and self interest may level at it, and assist it to maintain its
integrity, impartiality and independence;

xxxx

(11) Enforce rigid ethical standards x x x.[9]

In Re: Letter Dated 21 February 2005 of Atty. Noel S. Sorreda,[10] we reiterated our
pronouncement in Rheem of the Philippines v. Ferrer[11] that the duty of attorneys to the
courts can only be maintained by rendering no service involving any disrespect to the judicial
office which they are bound to uphold. The Court wrote in Rheem of the Philippines:

x x x As explicit is the first canon of legal ethics which pronounces that [i]t is the duty of a
lawyer to maintain towards the Courts a respectful attitude, not for the sake of the temporary
incumbent of the judicial office, but for the maintenance of its supreme importance. That
same canon, as a corollary, makes it peculiarly incumbent upon lawyers to support the
courts against unjust criticism and clamor. And more. The attorneys oath solemnly binds him
to a conduct that should be with all good fidelity x x x to the courts.
Also, in Sorreda, the Court revisited its holding in Surigao Mineral Reservation Board v.
Cloribel[12] that:

A lawyer is an officer of the courts; he is, like the court itself, an instrument or agency to
advance the ends of justice. His duty is to uphold the dignity and authority of the courts to
which he owes fidelity, not to promote distrust in the administration of justice. Faith in the
courts, a lawyer should seek to preserve. For, to undermine the judicial edifice is disastrous
to the continuity of government and to the attainment of the liberties of the people. Thus has
it been said of a lawyer that [a]s an officer of the court, it is his sworn and moral duty to help
build and not destroy unnecessarily that high esteem and regard towards the courts so
essential to the proper administration of justice.[13]

The lady senator belongs to the legal profession bound by the exacting injunction of a strict
Code. Society has entrusted that profession with the administration of the law and
dispensation of justice. Generally speaking, a lawyer holding a government office may not be
disciplined as a member of the Bar for misconduct committed while in the discharge of
official duties, unless said misconduct also constitutes a violation of his/her oath as a
lawyer.[14]

Lawyers may be disciplined even for any conduct committed in their private capacity, as long
as their misconduct reflects their want of probity or good demeanor,[15] a good character
being an essential qualification for the admission to the practice of law and for continuance of
such privilege. When the Code of Professional Responsibility or the Rules of Court speaks of
conduct or misconduct, the reference is not confined to ones behavior exhibited in
connection with the performance of lawyers professional duties, but also covers any
misconduct, whichalbeit unrelated to the actual practice of their professionwould show them
to be unfit for the office and unworthy of the privileges which their license and the law invest
in them.[16]

This Court, in its unceasing quest to promote the peoples faith in courts and trust in the rule
of law, has consistently exercised its disciplinary authority on lawyers who, for malevolent
purpose or personal malice, attempt to obstruct the orderly administration of justice, trifle with
the integrity of courts, and embarrass or, worse, malign the men and women who compose
them. We have done it in the case of former Senator Vicente Sotto in Sotto, in the case
of Atty. Noel Sorreda inSorreda, and in the case of Atty. Francisco B. Cruz in Tacordan v.
Ang[17] who repeatedly insulted and threatened the Court in a most insolent manner.

The Court is not hesitant to impose some form of disciplinary sanctions on Senator/Atty.
Santiago for what otherwise would have constituted an act of utter disrespect on her part
towards the Court and its members. The factual and legal circumstances of this case,
however, deter the Court from doing so, even without any sign of remorse from her. Basic
constitutional consideration dictates this kind of disposition.
We, however, would be remiss in our duty if we let the Senators offensive and disrespectful
language that definitely tended to denigrate the institution pass by. It is imperative on our
part to re-instill in Senator/Atty. Santiago her duty to respect courts of justice, especially this
Tribunal, and remind her anew that the parliamentary non-accountability thus granted to
members of Congress is not to protect them against prosecutions for their own benefit, but
to enable them, as the peoples representatives, to perform the functions of their office
without fear of being made responsible before the courts or other forums outside the
congressional hall.[18] It is intended to protect members of Congress against government
pressure and intimidation aimed at influencing the decision-making prerogatives of Congress
and its members.

The Rules of the Senate itself contains a provision on Unparliamentary Acts and
Language that enjoins a Senator from using, under any circumstance, offensive or improper
language against another Senator or against any public institution.[19] But as to Senator
Santiagos unparliamentary remarks, the Senate President had not apparently called her to
order, let alone referred the matter to the Senate Ethics Committee for appropriate
disciplinary action, as the Rules dictates under such circumstance.[20] The lady senator
clearly violated the rules of her own chamber. It is unfortunate that her peers bent backwards
and avoided imposing their own rules on her.

Finally, the lady senator questions Pobres motives in filing his complaint, stating that
disciplinary proceedings must be undertaken solely for the public welfare. We cannot agree
with her more. We cannot overstress that the senators use of intemperate language to
demean and denigrate the highest court of the land is a clear violation of the duty of respect
lawyers owe to the courts.[21]

Finally, the Senator asserts that complainant Pobre has failed to prove that she in fact made
the statements in question. Suffice it to say in this regard that, although she has not
categorically denied making such statements, she has unequivocally said making them as
part of her privilege speech. Her implied admission is good enough for the Court.

WHEREFORE, the letter-complaint of Antero J. Pobre against Senator/Atty. Miriam

Defensor-Santiago is, conformably to Art. VI, Sec. 11 of the Constitution, DISMISSED.

SO ORDERED.

EN BANC
ROMULO L. NERI, G.R. No. 180643

Petitioner,

Present:

- versus - PUNO, C.J.,

QUISUMBING,

YNARES-SANTIAGO,

SENATE COMMITTEE ON CARPIO,

ACCOUNTABILITY OF PUBLIC OFFICERS
AND INVESTIGATIONS, SENATE AUSTRIA-MARTINEZ,
COMMITTEE ON TRADE AND
COMMERCE, AND SENATE COMMITTEE ON CORONA,
NATIONAL DEFENSE AND SECURITY,
CARPIO MORALES,
Respondents.
AZCUNA,

TINGA,

CHICO-NAZARIO,

VELASCO, JR.,

NACHURA,

REYES,

LEONARDO-DE CASTRO, and

BRION, JJ.

Promulgated:

March 25, 2008

x--------------------------------------------------------------------------------------------------------------------x
DECISION

LEONARDO-DE CASTRO, J.:

At bar is a petition for certiorari under Rule 65 of the Rules of Court assailing the show
cause Letter[1] dated November 22, 2007 and contempt Order[2] dated January 30,
2008 concurrently issued by respondent

Senate Committees on Accountability of Public Officers and Investigations,[3] Trade

and Commerce,[4] and National Defense and Security[5] against petitioner Romulo L.
Neri, former Director General of the National Economic and Development Authority (NEDA).

The facts, as culled from the pleadings, are as follows:

On April 21, 2007, the Department of Transportation and Communication (DOTC) entered
into a contract with Zhong Xing Telecommunications Equipment (ZTE) for the supply of
equipment and services for the National Broadband Network (NBN) Project in the amount of
U.S. $ 329,481,290 (approximately P16 Billion Pesos). The Project was to be financed by the
Peoples Republic of China.

In connection with this NBN Project, various Resolutions were introduced in the Senate, as
follows:

(1) P.S. Res. No. 127, introduced by Senator Aquilino Q. Pimentel, Jr., entitled
RESOLUTION DIRECTING THE BLUE RIBBON COMMITTEE AND THE COMMITTEE ON
TRADE AND INDUSTRY TO INVESTIGATE, IN AID OF LEGISLATION, THE
CIRCUMSTANCES LEADING TO THE APPROVAL OF THE BROADBAND CONTRACT
WITH ZTE AND THE ROLE PLAYED BY THE OFFICIALS CONCERNED IN GETTING IT
CONSUMMATED AND TO MAKE RECOMMENDATIONS TO HALE TO THE COURTS OF
LAW THE PERSONS RESPONSIBLE FOR ANY ANOMALY IN CONNECTION
THEREWITH AND TO PLUG THE LOOPHOLES, IF ANY IN THE BOT LAW AND OTHER
PERTINENT LEGISLATIONS.

(2) P.S. Res. No. 144, introduced by Senator Mar Roxas, entitled RESOLUTION URGING
PRESIDENT GLORIA MACAPAGAL ARROYO TO DIRECT THE CANCELLATION OF THE
ZTE CONTRACT
(3) P.S. Res. No. 129, introduced by Senator Panfilo M. Lacson, entitled RESOLUTION
DIRECTING THE COMMITTEE ON NATIONAL DEFENSE AND SECURITY TO CONDUCT
AN INQUIRY IN AID OF LEGISLATION INTO THE NATIONAL SECURITY IMPLICATIONS
OF AWARDING THE NATIONAL BROADBAND NETWORK CONTRACT TO THE
CHINESE FIRM ZHONG XING TELECOMMUNICATIONS EQUIPMENT COMPANY
LIMITED (ZTE CORPORATION) WITH THE END IN VIEW OF PROVIDING REMEDIAL
LEGISLATION THAT WILL PROTECT OUR NATIONAL SOVEREIGNTY, SECURITY AND
TERRITORIAL INTEGRITY.

(4) P.S. Res. No. 136, introduced by Senator Miriam Defensor Santiago, entitled
RESOLUTION DIRECTING THE PROPER SENATE COMMITTEE TO CONDUCT AN
INQUIRY, IN AID OF LEGISLATION, ON THE LEGAL AND ECONOMIC JUSTIFICATION
OF THE NATIONAL BROADBAND NETWORK (NBN) PROJECT OF THE NATIONAL
GOVERNMENT.

At the same time, the investigation was claimed to be relevant to the consideration of three
(3) pending bills in the Senate, to wit:

1. Senate Bill No. 1793, introduced by Senator Mar Roxas, entitled AN ACT
SUBJECTING TREATIES, INTERNATIONAL OR EXECUTIVE AGREEMENTS INVOLVING
FUNDING IN THE PROCUREMENT OF INFRASTRUCTURE PROJECTS, GOODS, AND
CONSULTING SERVICES TO BE INCLUDED IN THE SCOPE AND APPLICATION OF
PHILIPPINE PROCUREMENT LAWS, AMENDING FOR THE PURPOSE REPUBLIC ACT
NO. 9184, OTHERWISE KNOWN AS THE GOVERNMENT PROCUREMENT REFORM
ACT, AND FOR OTHER PURPOSES;

2. Senate Bill No. 1794, introduced by Senator Mar Roxas, entitled AN ACT IMPOSING
SAFEGUARDS IN CONTRACTING LOANS CLASSIFIED AS OFFICIAL DEVELOPMENT
ASSISTANCE, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 8182, AS
AMENDED BY REPUBLIC ACT NO. 8555, OTHERWISE KNOWN AS THE OFFICIAL
DEVELOPMENT ASSISTANCE ACT OF 1996, AND FOR OTHER PURPOSES; and

3. Senate Bill No. 1317, introduced by Senator Miriam Defensor Santiago, entitled AN
ACT MANDATING CONCURRENCE TO INTERNATIONAL AGREEMENTS AND
EXECUTIVE AGREEMENTS.
Respondent Committees initiated the investigation by sending invitations to certain
personalities and cabinet officials involved in the NBN Project. Petitioner was among those
invited. He was summoned to appear and testify on September 18, 20, and 26 and October
25, 2007. However, he attended only the September 26 hearing, claiming he was out of town
during the other dates.

In the September 18, 2007 hearing, businessman Jose de Venecia III testified that several
high executive officials and power brokers were using their influence to push the approval of
the NBN Project by the NEDA. It appeared that the Project was initially approved as a Build-
Operate-Transfer (BOT) project but, on March 29, 2007, the NEDA acquiesced to convert it
into a government-to-government project, to be financed through a loan from the Chinese
Government.

On September 26, 2007, petitioner testified before respondent Committees for eleven (11)
hours. He disclosed that then Commission on Elections (COMELEC) Chairman Benjamin
Abalos offered him P200 Million in exchange for his approval of the NBN Project. He further
narrated that he informed President Arroyo about the bribery attempt and that she instructed
him not to accept the bribe. However, when probed further on what they discussed about the
NBN Project, petitioner refused to answer, invoking executive privilege. In particular, he
refused to answer the questions on (a) whether or not President Arroyo followed up the NBN
Project,[6] (b) whether or not she directed him to prioritize it,[7] and (c) whether or not she
directed him to approve.[8]

Unrelenting, respondent Committees issued a Subpoena Ad Testificandum to petitioner,

requiring him to appear and testify on November 20, 2007.

However, in the Letter dated November 15, 2007, Executive Secretary Eduardo R. Ermita
requested respondent Committees to dispense with petitioners testimony on the ground
of executive privilege. The pertinent portion of the letter reads:

With reference to the subpoena ad testificandum issued to Secretary Romulo Neri to appear
and testify again on 20 November 2007 before the Joint Committees you chair, it will be
recalled that Sec. Neri had already testified and exhaustively discussed the ZTE / NBN
project, including his conversation with the President thereon last 26 September 2007.

Asked to elaborate further on his conversation with the President, Sec. Neri asked for time to
consult with his superiors in line with the ruling of the Supreme Court in Senate v. Ermita,
488 SCRA 1 (2006).
Specifically, Sec. Neri sought guidance on the possible invocation of executive privilege on
the following questions, to wit:

a) Whether the President followed up the (NBN) project?

b) Were you dictated to prioritize the ZTE?

c) Whether the President said to go ahead and approve the project after being told
about the alleged bribe?

Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations and
correspondence between the President and public officials which are considered executive
privilege (Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July
9, 2002). Maintaining the confidentiality of conversations of the President is necessary in the
exercise of her executive and policy decision making process. The expectation of a
President to the confidentiality of her conversations and correspondences, like the value
which we accord deference for the privacy of all citizens, is the necessity for protection of the
public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-
making. Disclosure of conversations of the President will have a chilling effect on the
President, and will hamper her in the effective discharge of her duties and responsibilities, if
she is not protected by the confidentiality of her conversations.

The context in which executive privilege is being invoked is that the information sought to be
disclosed might impair our diplomatic as well as economic relations with the Peoples
Republic of China. Given the confidential nature in which these information were conveyed to
the President, he cannot provide the Committee any further details of these conversations,
without disclosing the very thing the privilege is designed to protect.

In light of the above considerations, this Office is constrained to invoke the settled doctrine of
executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri
accordingly.

Considering that Sec. Neri has been lengthily interrogated on the subject in an
unprecedented 11-hour hearing, wherein he has answered all questions propounded to him
except the foregoing questions involving executive privilege, we therefore request that his
testimony on 20 November 2007 on the ZTE / NBN project be dispensed with.
On November 20, 2007, petitioner did not appear before respondent Committees. Thus,
on November 22, 2007, the latter issued the show cause Letter requiring him to explain why
he should not be cited in contempt. The Letter reads:

Since you have failed to appear in the said hearing, the Committees on Accountability of
Public Officers and Investigations (Blue Ribbon), Trade and Commerce and National
Defense and Security require you to show cause why you should not be cited in contempt
under Section 6, Article 6 of the Rules of the Committee on Accountability of Public Officers
and Investigations (Blue Ribbon).

The Senate expects your explanation on or before 2 December 2007.

On November 29, 2007, petitioner replied to respondent Committees, manifesting that it was
not his intention to ignore the Senate hearing and that he thought the only remaining
questions were those he claimed to be covered by executive privilege, thus:

It was not my intention to snub the last Senate hearing. In fact, I have cooperated with the
task of the Senate in its inquiry in aid of legislation as shown by my almost 11 hours stay
during the hearing on 26 September 2007. During said hearing, I answered all the questions
that were asked of me, save for those which I thought was covered by executive privilege,
and which was confirmed by the Executive Secretary in his Letter 15 November 2007. In
good faith, after that exhaustive testimony, I thought that what remained were only the three
questions, where the Executive Secretary claimed executive privilege. Hence, his
request that my presence be dispensed with.

Be that as it may, should there be new matters that were not yet taken up during the 26
September 2007 hearing, may I be furnished in advance as to what else I need to clarify, so
that as a resource person, I may adequately prepare myself.

In addition, petitioner submitted a letter prepared by his counsel, Atty. Antonio R. Bautista,
stating, among others that: (1) his (petitioner) non-appearance wasupon the order of the
President; and (2) his conversation with President Arroyo dealt with delicate and sensitive
national security and diplomatic matters relating to the impact of the bribery scandal involving
high government officials and the possible loss of confidence of foreign investors and lenders
in the Philippines. The letter ended with a reiteration of petitioners request that he be
furnished in advance as to what else he needs to clarify so that he may adequately prepare
for the hearing.
In the interim, on December 7, 2007, petitioner filed with this Court the present petition
for certiorari assailing the show cause Letter dated November 22, 2007.

Respondent Committees found petitioners explanations unsatisfactory. Without responding

to his request for advance notice of the matters that he should still clarify, they issued
the Order dated January 30, 2008, citing him in contempt of respondent Committees and
ordering his arrest and detention at the Office of the Senate Sergeant-At-Arms until such
time that he would appear and give his testimony. The said Order states:

ORDER

For failure to appear and testify in the Committees hearing on Tuesday, September 18,
2007; Thursday, September 20, 2007; Thursday, October 25, 2007; and Tuesday, November
20, 2007, despite personal notice and Subpoenas Ad Testificandum sent to and received by
him, which thereby delays, impedes and obstructs, as it has in fact delayed, impeded and
obstructed the inquiry into the subject reported irregularities, AND for failure to explain
satisfactorily why he should not be cited for contempt (Neri letter of 29 November 2007),
herein attached) ROMULO L. NERI is hereby cited in contempt of this (sic) Committees
and ordered arrested and detained in the Office of the Senate Sergeant-At-Arms until
such time that he will appear and give his testimony.

The Sergeant-At-Arms is hereby directed to carry out and implement this Order and make a
return hereof within twenty four (24) hours from its enforcement.

SO ORDERED.

On the same date, petitioner moved for the reconsideration of the above Order.[9] He insisted
that he has not shown any contemptible conduct worthy of contempt and arrest. He
emphasized his willingness to testify on new matters, however, respondent Committees did
not respond to his request for advance notice of questions. He also mentioned the petition
for certiorari he filed on December 7, 2007. According to him, this should restrain respondent
Committees from enforcing the show cause Letter through the issuance of declaration of
contempt and arrest.
In view of respondent Committees issuance of the contempt Order, petitioner filed on
February 1, 2008 a Supplemental Petition for Certiorari (With Urgent Application for
TRO/Preliminary Injunction), seeking to restrain the implementation of the said
contempt Order.

On February 5, 2008, the Court issued a Status Quo Ante Order (a) enjoining respondent
Committees from implementing their contempt Order, (b) requiring the parties to observe
the status quo prevailing prior to the issuance of the assailed order, and (c) requiring
respondent Committees to file their comment.

Petitioner contends that respondent Committees show cause Letter and

contempt Order were issued with grave abuse of discretion
amounting to lack or excess of jurisdiction. He stresses that his conversations with President
Arroyo are candid discussions meant to explore options in making policy decisions.
According to him, these discussions dwelt on the impact of the bribery scandal involving
high government officials on the countrys diplomatic relations and economic and
military affairs and the possible loss of confidence of foreign investors and lenders in
the Philippines. He also emphasizes that his claim of executive privilege is upon the order
of the President and within the parameters laid down in Senate v. Ermita[10] and United
States v. Reynolds.[11] Lastly, he argues that he is precluded from disclosing
communications made

to him in official confidence under Section 7[12] of Republic Act No. 6713,

otherwise known as Code of Conduct and Ethical Standards for Public Officials and
Employees, and Section 24[13] (e) of Rule 130 of the Rules of Court.

Respondent Committees assert the contrary. They argue that (1) petitioners testimony is
material and pertinent in the investigation conducted in aid of legislation; (2) there is no valid
justification for petitioner to claim executive privilege; (3) there is no abuse of their authority
to order petitioners arrest; and (4)petitioner has not come to court with clean hands.

In the oral argument held last March 4, 2008, the following issues were ventilated:

1. What communications between the President and petitioner Neri are covered by the
principle of executive privilege?

1.a Did Executive Secretary Ermita correctly invoke the principle of executive privilege, by
order of the President, to cover (i) conversations of the President in the exercise of her
executive and policy decision-making and (ii) information, which might impair our diplomatic
as well as economic relations with the Peoples Republic of China?

1.b. Did petitioner Neri correctly invoke executive privilege to avoid testifying on his
conversations with the President on the NBN contract on his assertions that the said
conversations dealt with delicate and sensitive national security and diplomatic matters
relating to the impact of bribery scandal involving high government officials and the
possible loss of confidence of foreign investors and lenders in the Philippines x x x
within the principles laid down in Senate v. Ermita (488 SCRA 1 [2006])?

1.c Will the claim of executive privilege in this case violate the following provisions of the
Constitution:

Sec. 28, Art. II (Full public disclosure of all transactions involving public interest)

Sec. 7, Art. III (The right of the people to information on matters of public concern)

Sec. 1, Art. XI (Public office is a public trust)

Sec. 17, Art. VII (The President shall ensure that the laws be faithfully executed)

and the due process clause and the principle of separation of powers?

2. What is the proper procedure to be followed in invoking executive privilege?

3. Did the Senate Committees gravely abuse their discretion in ordering the arrest of
petitioner for non-compliance with the subpoena?
After the oral argument, the parties were directed to manifest to the Court within twenty-four
(24) hours if they are amenable to the Courts proposal of allowing petitioner to immediately
resume his testimony before the Senate Committees to answer the other questions of the
Senators without prejudice to the decision on the merits of this pending petition. It was
understood that petitioner may invoke executive privilege in the course of the Senate
Committees proceedings, and if the respondent Committees disagree thereto, the
unanswered questions will be the subject of a supplemental pleading to be resolved along
with the three (3) questions subject of the present petition.[14] At the same time, respondent
Committees were directed to submit several pertinent documents.[15]

The Senate did not agree with the proposal for the reasons stated in the Manifestation
dated March 5, 2008. As to the required documents, the Senate and respondent
Committees manifested that they would not be able to submit the latters Minutes of all
meetings and the Minute Book because it has never been the historical and traditional
legislative practice to keep them.[16] They instead submitted the Transcript of Stenographic
Notes of respondent Committees joint public hearings.

On March 17, 2008, the Office of the Solicitor General (OSG) filed a Motion for Leave to
Intervene and to Admit Attached Memorandum, founded on the following arguments:

(1) The communications between petitioner and the President are covered by the principle
of executive privilege.

(2) Petitioner was not summoned by respondent Senate Committees in accordance with the
law-making bodys power to conduct inquiries in aid of legislation as laid down in Section 21,
Article VI of the Constitution and Senate v. Ermita.

(3) Respondent Senate Committees gravely abused its discretion for alleged non-
compliance with the Subpoena dated November 13, 2007.

The Court granted the OSGs motion the next day, March 18, 2008.

As the foregoing facts unfold, related events transpired.

On March 6, 2008, President Arroyo issued Memorandum Circular No. 151, revoking
Executive Order No. 464 and Memorandum Circular No. 108. She advised executive officials
and employees to follow and abide by the Constitution, existing laws and jurisprudence,
including, among others, the case of Senate v. Ermita[17] when they are invited to legislative
inquiries in aid of legislation.

At the core of this controversy are the two (2) crucial queries, to wit:

First, are the communications elicited by the subject three (3) questions covered by
executive privilege?

And second, did respondent Committees commit grave abuse of discretion in issuing the
contempt Order?

We grant the petition.

At the outset, a glimpse at the landmark case of Senate v. Ermita[18] becomes

imperative. Senate draws in bold strokes the distinction between
the legislativeand oversight powers of the Congress, as embodied under Sections 21 and
22, respectively, of Article VI of the Constitution, to wit:

SECTION 21. The Senate or the House of Representatives or any of

its respective committees may conduct inquiries in aid of legislation in accordance with its
duly published rules of procedure. The rights of persons appearing in or affected by such
inquiries shall be respected.

SECTION 22. The heads of department may upon their own initiative, with the consent of the
President, or upon the request of either House, or as the rules of each House shall provide,
appear before and be heard by such House on any matter pertaining to their departments.
Written questions shall be submitted to the President of the Senate or the Speaker of the
House of Representatives at least three days before their scheduled
appearance. Interpellations shall not be limited to written questions, but may cover matters
related thereto. When the security of the state or the public interest so requires and the
President so states in writing, the appearance shall be conducted in executive session.

Senate cautions that while the above provisions are closely related and complementary to
each other, they should not be considered as pertaining to the same power of
Congress. Section 21 relates to the power to conduct inquiries in aid of legislation. Its aim is
to elicit information that may be used for legislation. On the other hand, Section 22 pertains
to the power to conduct a question hour, the objective of which is to obtain information in
pursuit of Congress oversight function.[19]Simply stated, while both powers allow Congress or
any of its committees to conduct inquiry, their objectives are different.

This distinction gives birth to another distinction with regard to the use of compulsory
process. Unlike in Section 21, Congress cannot compel the appearance of executive
officials under Section 22. The Courts pronouncement in Senate v. Ermita[20] is clear:

When Congress merely seeks to be informed on how department heads are implementing
the statutes which it has issued, its right to such information is not as imperative as that of
the President to whom, as Chief Executive, such department heads must give a report of
their performance as a matter of duty. In such instances, Section 22, in keeping with the
separation of powers, states that Congress may only request their appearance. Nonetheless,
when the inquiry in which Congress requires their appearance is in aid of legislation under
Section 21, the appearance is mandatory for the same reasons stated in Arnault.

In fine, the oversight function of Congress may be facilitated by compulsory process

only to the extent that it is performed in pursuit of legislation. This is consistent with the
intent discerned from the deliberations of the Constitutional Commission

Ultimately, the power of Congress to compel the appearance of executive officials under
section 21 and the lack of it under Section 22 find their basis in the principle of separation of
powers. While the executive branch is a co-equal branch of the legislature, it cannot frustrate
the power of Congress to legislate by refusing to comply with its demands for information.
(Emphasis supplied.)

The availability of the power of judicial review to resolve the issues raised in this case has
also been settled in Senate v. Ermita, when it held:

As evidenced by the American experience during the so-called McCarthy era, however, the
right of Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to
abuse than executive or judicial power. It may thus be subjected to judicial review pursuant
to the Courts certiorari powers under Section 1, Article VIII of the Constitution.

Hence, this decision.

I

The Communications Elicited by the Three (3) Questions are Covered by Executive
Privilege

We start with the basic premises where the parties have conceded.

The power of Congress to conduct inquiries in aid of legislation is broad. This is based on the
proposition that a legislative body cannot legislate wisely or effectively in the absence of
information respecting the conditions which the legislation is intended to affect or
change.[21] Inevitably, adjunct thereto is the compulsory process to enforce it. But, the power,
broad as it is, has limitations. To be valid, it is imperative that it is done in accordance with
the Senate or House duly published rules of procedure and that the rights of the persons
appearing in or affected by such inquiries be respected.

The power extends even to executive officials and the only way for them to be exempted is
through a valid claim of executive privilege.[22] This directs us to the consideration of the
question -- is there a recognized claim of executive privilege despite the revocation of
E.O. 464?

A- There is a Recognized Claim

of Executive Privilege Despite the

Revocation of E.O. 464

At this juncture, it must be stressed that the revocation of E.O. 464 does not in any way
diminish our concept of executive privilege. This is because this concept has Constitutional
underpinnings. Unlike the United States which has further accorded the concept with
statutory status by enacting the Freedom of Information Act[23]and the Federal Advisory
Committee Act,[24] the Philippines has retained its constitutional origination, occasionally
interpreted only by this Court in various cases. The most recent of these is the case
of Senate v. Ermita where this Court declared unconstitutional substantial portions of E.O.
464. In this regard, it is worthy to note that Executive Ermitas Letter dated November 15,
2007 limits its bases for the claim of executive privilege to Senate v. Ermita, Almonte v.
Vasquez,[25] and Chavez v. PEA.[26] There was never a mention of E.O. 464.
While these cases, especially Senate v. Ermita,[27] have comprehensively discussed the
concept of executive privilege, we deem it imperative to explore it once more in view of the
clamor for this Court to clearly define the communications covered by executive privilege.

The Nixon and post-Watergate cases established the broad contours of the presidential
communications privilege.[28] In United States v. Nixon,[29] the U.S. Court recognized a
great public interest in preserving the confidentiality of conversations that take place in
the Presidents performance of his official duties. It thus considered presidential
communications as presumptively privileged. Apparently, the presumption is founded on
the Presidents generalized interest in confidentiality. The privilege is said to be
necessary to guarantee the candor of presidential advisors and to provide the President
and those who assist him with freedom to explore alternatives in the process of
shaping policies and making decisions and to do so in a way many would be unwilling
to express except privately.

In In Re: Sealed Case,[30] the U.S. Court of Appeals delved deeper. It ruled that there are
two (2) kinds of executive privilege; one is the presidential communications privilege and,
the other is the deliberative process privilege. The former pertains to communications,
documents or other materials that reflect presidential decision-making and
deliberations and that the President believes should remain confidential. The latter
includes advisory opinions, recommendations and deliberations comprising part of a
process by which governmental decisions and policies are formulated.

Accordingly, they are characterized by marked distinctions. Presidential communications

privilege applies to decision-making of the President while, the deliberative process
privilege, to decision-making of executive officials. The first is rooted in the
constitutional principle of separation of power and the Presidents unique constitutional
role; the second on common law privilege. Unlike the deliberative process

privilege, the presidential communications privilege applies to documents in their

entirety, and covers final and post-decisional materials as well as pre-deliberative
ones[31] As a consequence, congressional or judicial negation of the presidential
communications privilege is always subject to greater scrutiny than denial of
the deliberative process privilege.

Turning on who are the officials covered by the presidential communications privilege, In
Re: Sealed Case confines the privilege only to White House Staff that has operational
proximity to direct presidential decision-making. Thus, the privilege is meant to encompass
only those functions that form the core of presidential authority, involving what the court
characterized as quintessential and non-delegable Presidential power, such as commander-
in-chief power, appointment and removal power, the power to grant pardons and reprieves,
the sole-authority to receive ambassadors and other public officers, the power to negotiate
treaties, etc.[32]

The situation in Judicial Watch, Inc. v. Department of Justice[33] tested the In Re: Sealed
Case principles. There, while the presidential decision involved is the exercise of the
Presidents pardon power, a non-delegable, core-presidential function, the Deputy Attorney
General and the Pardon Attorney were deemed to be too remote from the President and his
senior White House advisors to be protected. The Court conceded that

functionally those officials were performing a task directly related to the Presidents pardon
power, but concluded that an organizational test was more appropriate for confining the
potentially broad sweep that would result from the In Re: Sealed Cases functional test. The
majority concluded that, the lesser protections of the deliberative process privilege would
suffice. That privilege was, however, found insufficient to justify the confidentiality of the
4,341 withheld documents.

But more specific classifications of communications covered by executive privilege are made
in older cases. Courts ruled early that the Executive has a right to withhold documents that
might reveal military or state secrets,[34] identity of government informers in some
circumstances,,[35] and information related to pending investigations.[36] An area where
the privilege is highly revered is in foreign relations. In United States v. Curtiss-Wright
Export Corp.[37] the U.S. Court, citing President George Washington, pronounced:

The nature of foreign negotiations requires caution, and their success must often depend on
secrecy, and even when brought to a conclusion, a full disclosure of all the measures,
demands, or eventual concessions which may have been proposed or contemplated would
be extremely impolitic, for this might have a pernicious influence on future negotiations or
produce immediate inconveniences, perhaps danger and mischief, in relation to other
powers. The necessity of such caution and secrecy was one cogent reason for vesting the
power of making treaties in the President, with the advice and consent of the Senate, the
principle on which the body was formed confining it to a small number of members. To admit,
then, a right in the House of Representatives to demand and to have as a matter of course
all the papers respecting a negotiation with a foreign power would be to establish a
dangerous precedent.

Majority of the above jurisprudence have found their way in our jurisdiction. In Chavez v.
PCGG[38], this Court held that there is a governmental privilege against public disclosure with
respect to state secrets regarding military, diplomatic and other security matters. In Chavez
v. PEA,[39] there is also a recognition of the confidentiality of Presidential conversations,
correspondences, and discussions in closed-door Cabinet meetings. In Senate v. Ermita, the
concept of presidential communications privilege is fully discussed.

As may be gleaned from the above discussion, the claim of executive privilege is highly
recognized in cases where the subject of inquiry relates to a power textually committed by
the Constitution to the President, such as the area of military and foreign relations. Under our
Constitution, the President is the repository of the commander-in-
chief,[40] appointing,[41] pardoning,[42] and diplomatic[43] powers. Consistent with the doctrine
of separation of powers, the information relating to these powers may enjoy greater
confidentiality than others.

The above cases, especially, Nixon, In Re Sealed Case and Judicial Watch, somehow
provide the elements of presidential communications privilege, to wit:

1) The protected communication must relate to a quintessential and non-delegable

presidential power.

2) The communication must be authored or solicited and received by a close advisor of the
President or the President himself. The judicial test is that an advisor must be in operational
proximity with the President.

3) The presidential communications privilege remains a qualified privilege that may be

overcome by a showing of adequate need, such that the information sought likely contains
important evidence and by the unavailability of the information elsewhere by an appropriate
investigating authority.[44]

In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on
the ground that the communications elicited by the three (3) questions fall under
conversation and correspondence between the President and public officials necessary in
her executive and policy decision-making process and, that the information sought to be
disclosed might impair our diplomatic as well as economic relations with the Peoples
Republic of China. Simply put, the bases are presidential communications privilege and
executive privilege on matters relating to diplomacy or foreign relations.

Using the above elements, we are convinced that, indeed, the communications elicited by
the three (3) questions are covered by the presidential communications privilege. First,
the communications relate to a quintessential and non-delegable power of the President, i.e.
the power to enter into an executive agreement with other countries. This authority of the
President to enter into executive agreements without the concurrence of the Legislature has
traditionally been recognized in Philippine jurisprudence.[45] Second, the communications are
received by a close advisor of the President. Under the operational proximity test, petitioner
can be considered a close advisor, being a member of President Arroyos cabinet. And third,
there is no adequate showing of a compelling need that would justify the limitation of the
privilege and of the unavailability of the information elsewhere by an appropriate
investigating authority.
The third element deserves a lengthy discussion.

United States v. Nixon held that a claim of executive privilege is subject to balancing
against other interest. In other words, confidentiality in executive privilege is not
absolutely protected by the Constitution. The U.S. Court held:

[N]either the doctrine of separation of powers, nor the need for confidentiality of high-level
communications, without more, can sustain an absolute, unqualified Presidential privilege of
immunity from judicial process under all circumstances.

The foregoing is consistent with the earlier case of Nixon v. Sirica,[46] where it was held
that presidential communications are presumptively privileged and that the presumption
can be overcome only by mere showing of public need by the branch seeking access to
conversations. The courts are enjoined to resolve the competing interests of the political
branches of the government in the manner that preserves the essential functions of each
Branch.[47] Here, the record is bereft of any categorical explanation from respondent
Committees to show a compelling or citical need for the answers to the three (3) questions in
the enactment of a law. Instead, the questions veer more towards the exercise of the
legislative oversight function under Section 22 of Article VI rather than Section 21 of the
same Article. Senate v. Ermita ruled that the the oversight function of Congress may be
facilitated by compulsory process only to the extent that it is performed in pursuit of
legislation. It is conceded that it is difficult to draw the line between an inquiry in aid of
legislation and an inquiry in the exercise of oversight function of Congress. In this regard,
much will depend on the content of the questions and the manner the inquiry is conducted.

Respondent Committees argue that a claim of executive privilege does not guard against a
possible disclosure of a crime or wrongdoing. We see no dispute on this. It is settled
in United States v. Nixon[48] that demonstrated, specific need for evidence in pending
criminal trial outweighs the Presidents generalized interest in confidentiality. However, the
present cases distinction with the Nixon case is very
evident. In Nixon, there is a pending criminal proceeding where the information is requested
and it is the demands of due process of law and the fair administration of criminal justice that
the information be disclosed. This is the reason why the U.S. Court was quick to limit the
scope of its decision. It stressed that it is not concerned here with the balance between
the Presidents generalized interest in confidentiality x x x and congressional demands
for information. Unlike in Nixon, the information here is elicited, not in a criminal
proceeding, but in a legislative inquiry. In this regard, Senate v. Ermita stressed that the
validity of the claim of executive privilege depends not only on the ground invoked but, also,
on the procedural setting or the context in which the claim is made. Furthermore,
in Nixon, the President did not interpose any claim of need to protect military, diplomatic or
sensitive national security secrets. In the present case, Executive Secretary Ermita
categorically claims executive privilege on the grounds of presidential communications
privilege in relation to her executive and policy decision-making process and diplomatic
secrets.
The respondent Committees should cautiously tread into the investigation of matters which
may present a conflict of interest that may provide a ground to inhibit the Senators
participating in the inquiry if later on an impeachment proceeding is initiated on the same
subject matter of the present Senate inquiry. Pertinently, in Senate Select Committee on
Presidential Campaign Activities v. Nixon,[49] it was held that since an impeachment
proceeding had been initiated by a House Committee, the Senate Select Committees
immediate oversight need for five presidential tapes should give way to the House Judiciary
Committee which has the constitutional authority to inquire into presidential impeachment.
The Court expounded on this issue in this wise:

It is true, of course, that the Executive cannot, any more than the other branches of
government, invoke a general confidentiality privilege to shield its officials and employees
from investigations by the proper governmental institutions into possible criminal
wrongdoing. The Congress learned this as to its own privileges in Gravel v. United States, as
did the judicial branch, in a sense, in Clark v. United States, and the executive branch itself
in Nixon v. Sirica. But under Nixon v. Sirica, the showing required to overcome the
presumption favoring confidentiality turned, not on the nature of the presidential conduct
that the subpoenaed material might reveal, but, instead, on the nature and
appropriateness of the function in the performance of which the material was sought,
and the degree to which the material was necessary to its fulfillment. Here also our
task requires and our decision implies no judgment whatever concerning possible
presidential involvement in culpable activity. On the contrary, we think the sufficiency
of the Committee's showing must depend solely on whether the subpoenaed evidence
is demonstrably critical to the responsible fulfillment of the Committee's functions.

In its initial briefs here, the Committee argued that it has shown exactly this. It contended that
resolution, on the basis of the subpoenaed tapes, of the conflicts in the testimony before it
would aid in a determination whether legislative involvement in political campaigns is
necessary and could help engender the public support needed for basic reforms in our
electoral system. Moreover, Congress has, according to the Committee, power to oversee
the operations of the executive branch, to investigate instances of possible corruption and
malfeasance in office, and to expose the results of its investigations to public view. The
Committee says that with respect to Watergate-related matters, this power has been
delegated to it by the Senate, and that to exercise its power responsibly, it must have access
to the subpoenaed tapes.

We turn first to the latter contention. In the circumstances of this case, we need neither deny
that the Congress may have, quite apart from its legislative responsibilities, a general
oversight power, nor explore what the lawful reach of that power might be under the
Committee's constituent resolution. Since passage of that resolution, the House Committee
on the Judiciary has begun an inquiry into presidential impeachment. The investigative
authority of the Judiciary Committee with respect to presidential conduct has an express
constitutional source. x x x We have been shown no evidence indicating that Congress
itself attaches any particular value to this interest. In these circumstances, we think
the need for the tapes premised solely on an asserted power to investigate and inform
cannot justify enforcement of the Committee's subpoena.
The sufficiency of the Committee's showing of need has come to depend, therefore, entirely
on whether the subpoenaed materials are critical to the performance of its legislative
functions. There is a clear difference between Congress' legislative tasks and the
responsibility of a grand jury, or any institution engaged in like functions. While fact-finding
by a legislative committee is undeniably a part of its task, legislative judgments
normally depend more on the predicted consequences of proposed legislative actions
and their political acceptability, than on precise reconstruction of past events;
Congress frequently legislates on the basis of conflicting information provided in its hearings.
In contrast, the responsibility of the grand jury turns entirely on its ability to determine
whether there is probable cause to believe that certain named individuals did or did not
commit specific crimes. If, for example, as in Nixon v. Sirica, one of those crimes is perjury
concerning the content of certain conversations, the grand jury's need for the most precise
evidence, the exact text of oral statements recorded in their original form, is undeniable. We
see no comparable need in the legislative process, at least not in the circumstances of
this case. Indeed, whatever force there might once have been in the Committee's argument
that the subpoenaed materials are necessary to its legislative judgments has been
substantially undermined by subsequent events. (Emphasis supplied)

Respondent Committees further contend that the grant of petitioners claim of executive
privilege violates the constitutional provisions on the right of the people to information on
matters of public concern.[50] We might have agreed with such contention if petitioner did not
appear before them at all. But petitioner made himself available to them during the
September 26 hearing, where he was questioned for eleven (11) hours. Not only that, he
expressly manifested his willingness to answer more questions from the Senators, with the
exception only of those covered by his claim of executive privilege.

The right to public information, like any other right, is subject to limitation. Section 7 of Article
III provides:

The right of the people to information on matters of public concern shall be

recognized. Access to official records, and to documents, and papers pertaining to official
acts, transactions, or decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such limitations as may be
provided by law.

The provision itself expressly provides the limitation, i.e. as may be provided by law. Some
of these laws are Section 7 of Republic Act (R.A.) No. 6713,[51]Article 229[52] of
the Revised Penal Code, Section 3 (k)[53] of R.A. No. 3019, and Section 24(e)[54] of Rule 130
of the Rules of Court. These are in addition to what our body of jurisprudence classifies as
confidential[55] and what our Constitution considers as belonging to the larger concept of
executive privilege. Clearly, there is a recognized public interest in the confidentiality of
certain information. We find the information subject of this case belonging to such kind.

More than anything else, though, the right of Congress or any of its Committees to obtain
information in aid of legislation cannot be equated with the peoples right to public
information. The former cannot claim that every legislative inquiry is an exercise of the
peoples right to information. The distinction between such rights is laid down in Senate v.
Ermita:

There are, it bears noting, clear distinctions between the right of Congress to information
which underlies the power of inquiry and the right of people to information on matters of
public concern. For one, the demand of a citizen for the production of documents pursuant to
his right to information does not have the same obligatory force as a subpoena duces
tecum issued by Congress. Neither does the right to information grant a citizen the power to
exact testimony from government officials. These powers belong only to Congress, not to an
individual citizen.

Thus, while Congress is composed of representatives elected by the people, it does

not follow, except in a highly qualified sense, that in every exercise of its power of
inquiry, the people are exercising their right to information.

The members of respondent Committees should not invoke as justification in their exercise
of power a right properly belonging to the people in general. This is because when they
discharge their power, they do so as public officials and members of Congress. Be that as it
may, the right to information must be balanced with and should give way, in appropriate
cases, to constitutional precepts particularly those pertaining to delicate interplay of
executive-legislative powers and privileges which is the subject of careful review by
numerous decided cases.

B- The Claim of Executive Privilege

is Properly Invoked

We now proceed to the issue -- whether the claim is properly invoked by the
President. Jurisprudence teaches that for the claim to be properly invoked, there must be a
formal claim of privilege, lodged by the head of the department which has control over the
matter.[56] A formal and proper claim of executive privilege requires a precise and certain
reason for preserving their confidentiality.[57]

The Letter dated November 17, 2007 of Executive Secretary Ermita satisfies the
requirement. It serves as the formal claim of privilege. There, he expressly states that this
Office is constrained to invoke the settled doctrine of executive privilege as refined
in Senate v. Ermita, and has advised Secretary Neri accordingly.Obviously, he is
referring to the Office of the President. That is more than enough compliance. In Senate v.
Ermita, a less categorical letter was even adjudged to be sufficient.

With regard to the existence of precise and certain reason, we find the grounds relied upon
by Executive Secretary Ermita specific enough so as not to leave respondent Committees in
the dark on how the requested information could be classified as privileged. The case
of Senate v. Ermita only requires that an allegation be made whether the information
demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc. The
particular ground must only be specified. The enumeration is not even intended to be
comprehensive.[58] The following statement of grounds satisfies the requirement:

The context in which executive privilege is being invoked is that the information sought to be
disclosed might impair our diplomatic as well as economic relations with the Peoples
Republic of China. Given the confidential nature in which these information were conveyed to
the President, he cannot provide the Committee any further details of these conversations,
without disclosing the very thing the privilege is designed to protect.

At any rate, as held further in Senate v. Ermita, [59] the Congress must not require the
executive to state the reasons for the claim with such particularity as to compel disclosure of
the information which the privilege is meant to protect. This is a matter of respect to a
coordinate and co-equal department.

II

Respondent Committees Committed Grave Abuse of Discretion in Issuing the

Contempt Order
Grave abuse of discretion means such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction, or, in other words where the power is exercised in an
arbitrary or despotic manner by reason of passion or personal hostility and it must be so
patent and gross as to amount to an evasion of positive duty or to a virtual refusal to
perform the duty enjoined or to act at all in contemplation of law.[60]

It must be reiterated that when respondent Committees issued the show cause Letter dated
November 22, 2007, petitioner replied immediately, manifesting that it was not his intention
to ignore the Senate hearing and that he thought the only remaining questions were the
three (3) questions he claimed to be covered by executive privilege. In addition thereto, he
submitted Atty. Bautistas letter, stating that his non-appearance was upon the order of the
President and specifying the reasons why his conversations with President Arroyo are
covered by executive privilege. Both correspondences include an expression of his
willingness to testify again, provided he be furnished in advance copies of the
questions. Without responding to his request for advance list of questions, respondent
Committees issued the Order dated January 30, 2008, citing him in contempt of respondent
Committees and ordering his arrest and detention at the Office of the Senate Sergeant-At-
Arms until such time that he would appear and give his testimony. Thereupon, petitioner filed
a motion for reconsideration, informing respondent Committees that he had filed the present
petition for certiorari.

Respondent Committees committed grave abuse of discretion in issuing the

contempt Order in view of five (5) reasons.

First, there being a legitimate claim of executive privilege, the issuance of the contempt
Order suffers from constitutional infirmity.

Second, respondent Committees did not comply with the requirement laid down in Senate v.
Ermita that the invitations should contain the possible needed statute which prompted the
need for the inquiry, along with the usual indication of the subject of inquiry and
the questions relative to and in furtherance thereof. Compliance with this requirement is
imperative, both under Sections 21 and 22 of Article VI of the Constitution. This must be so
to ensure that the rights of both persons appearing in or affected by such inquiry are
respected as mandated by said Section 21 and by virtue of the express language of Section
22. Unfortunately, despite petitioners repeated demands, respondent Committees did not
send him an advance list of questions.

Third, a reading of the transcript of respondent Committees January 30, 2008 proceeding
reveals that only a minority of the members of the Senate Blue Ribbon Committee was
present during the deliberation. [61] Section 18 of the Rules of Procedure Governing Inquiries
in Aid of Legislation provides that:
The Committee, by a vote of majority of all its members, may punish for contempt any
witness before it who disobeys any order of the Committee or refuses to be sworn or to
testify or to answer proper questions by the Committee or any of its members.

Clearly, the needed vote is a majority of all the members of the Committee. Apparently,
members who did not actually participate in the deliberation were made to sign the contempt
Order. Thus, there is a cloud of doubt as to the validity of the contempt Order dated January
30, 2008. We quote the pertinent portion of the transcript, thus:

THE CHAIRMAN (SEN. CAYETANO, A). For clarification. x x x The Chair will call either
a caucus or will ask the Committee on Rules if there is a problem. Meaning, if we do
not have the sufficient numbers. But if we have a sufficient number, we will just hold a
caucus to be able to implement that right away becauseAgain, our Rules provide that
any one held in contempt and ordered arrested, need the concurrence of a majority of
all members of the said committee and we have three committees conducting this.

So thank you very much to the members

SEN. PIMENTEL. Mr. Chairman.

THE CHAIRMAN (SEN. CAYETANO,A). May I recognize the Minority Leader and give
him the floor, Senator Pimentel.

SEN. PIMENTEL. Mr. Chairman, there is no problem, I think, with consulting the other
committees. But I am of the opinion that the Blue Ribbon Committee is the lead
committee, and therefore, it should have preference in enforcing its own decisions.
Meaning to say, it is not something that is subject to consultation with other
committees. I am not sure that is the right interpretation. I think that once we decide
here, we enforce what we decide, because otherwise, before we know it, our
determination is watered down by delay and, you know, the so-called
consultation that inevitably will have to take place if we follow the premise that has
been explained.

So my suggestion, Mr. Chairman, is the Blue Ribbon Committee should not forget its the
lead committee here, and therefore, the will of the lead committee prevails over all the other,
you, know reservations that other committees might have who are only secondary or even
tertiary committees, Mr. Chairman.
THE CHAIRMAN (SEN. CAYETANO, A.) Thank you very much to the Minority Leader. And I
agree with the wisdom of his statements. I was merely mentioning that under Section 6 of the
Rules of the Committee and under Section 6, The Committee by a vote of a majority of all its
members may punish for contempt any witness before it who disobeys any order of the
Committee.

So the Blue Ribbon Committee is more than willing to take that responsibility. But we only
have six members here today, I am the seventh as chair and so we have not met that
number. So I am merely stating that, sir, that when we will prepare the documentation, if a
majority of all members sign and I am following the Sabio v. Gordon rule wherein I do
believe, if I am not mistaken, Chairman Gordon prepared the documentation and then either
in caucus or in session asked the other members to sign. And once the signatures are
obtained, solely for the purpose that Secretary Neri or Mr. Lozada will not be able to legally
question our subpoena as being insufficient in accordance with law.

SEN. PIMENTEL. Mr. Chairman, the caution that the chair is suggesting is very well-
taken. But Id like to advert to the fact that the quorum of the committee is only two as far as I
remember. Any two-member senators attending a Senate committee hearing provide that
quorum, and therefore there is more than a quorum demanded by our Rules as far as we are
concerned now, and acting as Blue Ribbon Committee, as Senator Enrile pointed out. In any
event, the signatures that will follow by the additional members will only tend to strengthen
the determination of this Committee to put its foot forward put down on what is happening in
this country, Mr. Chairman, because it really looks terrible if the primary Committee of the
Senate, which is the Blue Ribbon Committee, cannot even sanction people who openly defy,
you know, the summons of this Committee. I know that the Chair is going through an
agonizing moment here. I know that. But nonetheless, I think we have to uphold, you know,
the institution that we are representing because the alternative will be a disaster for all of us,
Mr. Chairman. So having said that, Id like to reiterate my point.

THE CHAIRMAN (SEN. CAYETANO, A.) First of all, I agree 100 percent with the intentions
of the Minority Leader. But let me very respectfully disagree with the legal
requirements. Because, yes, we can have a hearing if we are only two but both under
Section 18 of the Rules of the Senate and under Section 6 of the Rules of the Blue
Ribbon Committee, there is a need for a majority of all members if it is a case of
contempt and arrest. So, I am simply trying to avoid the court rebuking the Committee,
which will instead of strengthening will weaken us. But I do agree, Mr. Minority Leader, that
we should push for this and show the executive branch that the well-decided the issue has
been decided upon the Sabio versus Gordon case. And its very clear that we are all allowed
to call witnesses. And if they refure or they disobey not only can we cite them in contempt
and have them arrested. x x x [62]
Fourth, we find merit in the argument of the OSG that respondent Committees likewise
violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in
accordance with the duly published rules of procedure. We quote the OSGs explanation:

The phrase duly published rules of procedure requires the Senate of every Congress to
publish its rules of procedure governing inquiries in aid of legislation because every Senate
is distinct from the one before it or after it. Since Senatorial elections are held every three (3)
years for one-half of the Senates membership, the composition of the Senate also changes
by the end of each term. Each Senate may thus enact a different set of rules as it may deem
fit. Not having published its Rules of Procedure, the subject hearings in aid of
legislation conducted by the 14th Senate, are therefore, procedurally infirm.

And fifth, respondent Committees issuance of the contempt Order is arbitrary and
precipitate. It must be pointed out that respondent Committees did not firstpass upon the
claim of executive privilege and inform petitioner of their ruling. Instead, they curtly dismissed
his explanation as unsatisfactory and simultaneously issued the Order citing him in
contempt and ordering his immediate arrest and detention.

A fact worth highlighting is that petitioner is not an unwilling witness. He manifested

several times his readiness to testify before respondent Committees. He refused to answer
the three (3) questions because he was ordered by the President to claim executive
privilege. It behooves respondent Committees to first rule on the claim of executive privilege
and inform petitioner of their finding thereon, instead of peremptorily dismissing his
explanation as unsatisfactory. Undoubtedly,
respondent Committees actions constitute grave abuse of discretion for

being arbitrary and for denying petitioner due process of law. The same

quality afflicted their conduct when they (a) disregarded petitioners motion for
reconsideration alleging that he had filed the present petition before this Court
and (b) ignored petitioners repeated request for an advance list of questions, if there be any
aside from the three (3) questions as to which he claimed to be covered by executive
privilege.

Even the courts are repeatedly advised to exercise the power of contempt judiciously and
sparingly with utmost self-restraint with the end in view of utilizing the same for correction
and preservation of the dignity of the court, not for retaliation or vindication.[63] Respondent
Committees should have exercised the same restraint, after all petitioner is not even an
ordinary witness. He holds a high position in a co-equal branch of government.
In this regard, it is important to mention that many incidents of judicial review could have
been avoided if powers are discharged with circumspection and deference. Concomitant with
the doctrine of separation of powers is the mandate to observe respect to a co-equal branch
of the government.

One last word.

The Court was accused of attempting to abandon its constitutional duty when it required the
parties to consider a proposal that would lead to a possible compromise. The accusation is
far from the truth. The Court did so, only to test a tool that other jurisdictions find to be
effective in settling similar cases, to avoid a piecemeal consideration of the questions for
review and to avert a constitutional crisis between the executive and legislative branches of
government.

In United States v. American Tel. & Tel Co.,[64] the court refrained from deciding the case
because of its desire to avoid a resolution that might disturb the balance of power between
the two branches and inaccurately reflect their true needs. Instead, it remanded the record to
the District Court for further proceedings during which the parties are required to negotiate a
settlement. In the subsequent case of United States v. American Tel. &Tel Co.,[65] it was held
that much of this spirit of compromise is reflected in the generality of language found in the
Constitution. It proceeded to state:

Under this view, the coordinate branches do not exist in an exclusively adversary relationship
to one another when a conflict in authority arises. Rather each branch should take
cognizance of an implicit constitutional mandate to seek optimal accommodation through a
realistic evaluation of the needs of the conflicting branches in the particular fact situation.

It thereafter concluded that: The Separation of Powers often impairs efficiency, in terms
of dispatch and the immediate functioning of government. It is the long-
term staying power of government that is enhanced by
the mutual accommodation required by the separation of powers.

In rendering this decision, the Court emphasizes once more that the basic principles
of constitutional law cannot be subordinated to the needs of a
particular situation. As magistrates, our mandate is to rule
objectively and dispassionately, always mindful of Mr. Justice Holmes warning on the
dangers inherent in cases of this nature, thus:

some accident of immediate and overwhelming interestappeals to the feelings and distorts
the judgment. These immediate interests exercise a kind of hydraulic pressure which makes
what previously was clear seem doubtful, and before which even well settled principles of
law will bend.[66]

In this present crusade to search for truth, we should turn to the

fundamental constitutional principles which underlie our tripartite system of
government, where the Legislature enacts the law, the Judiciary interprets it and the
Executive implements it. They are considered separate, co-
equal, coordinate and supreme within their respective spheres but, imbued with a system of
checks and balances to prevent unwarranted exercise of power. The Courts mandate is to
preserve these constitutional principles at all times to keep the political branches of
government within constitutional bounds in the exercise of their respective powers and
prerogatives, even if it be in the search for truth. This is the only way we can preserve the
stability of our democratic institutions and uphold the Rule of Law.

WHEREFORE, the petition is hereby GRANTED. The subject Order dated January 30, 2008,
citing petitioner Romulo L. Neri in contempt of the Senate Committees and directing his
arrest and detention, is hereby nullified.

SO ORDERED.

G.R. No. 208566 November 19, 2013

GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR. JOSE L. GONZALEZ

REUBEN M. ABANTE and QUINTIN PAREDES SAN DIEGO, Petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR. SECRETARY OF
BUDGET AND MANAGEMENT FLORENCIO B. ABAD, NATIONAL TREASURER
ROSALIA V. DE LEON SENATE OF THE PHILIPPINES represented by FRANKLIN M.
DRILON m his capacity as SENATE PRESIDENT and HOUSE OF REPRESENTATIVES
represented by FELICIANO S. BELMONTE, JR. in his capacity as SPEAKER OF THE
HOUSE, Respondents.

x-----------------------x
G.R. No. 208493

SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON S. ALCANTARA, Petitioner,

vs.
HONORABLE FRANKLIN M. DRILON in his capacity as SENATE PRESIDENT and
HONORABLE FELICIANO S. BELMONTE, JR., in his capacity as SPEAKER OF THE
HOUSE OF REPRESENTATIVES, Respondents.

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

G.R. No. 209251

PEDRITO M. NEPOMUCENO, Former Mayor-Boac, Marinduque Former Provincial

Board Member -Province of Marinduque, Petitioner,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III* and SECRETARY FLORENCIO BUTCH
ABAD, DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.

DECISION

PERLAS-BERNABE, J.:

"Experience is the oracle of truth."1

-James Madison

Before the Court are consolidated petitions2 taken under Rule 65 of the Rules of Court, all of
which assail the constitutionality of the Pork Barrel System. Due to the complexity of the
subject matter, the Court shall heretofore discuss the system‘s conceptual underpinnings
before detailing the particulars of the constitutional challenge.

The Facts

I. Pork Barrel: General Concept.

"Pork Barrel" is political parlance of American -English origin.3 Historically, its usage may be
traced to the degrading ritual of rolling out a barrel stuffed with pork to a multitude of black
slaves who would cast their famished bodies into the porcine feast to assuage their hunger
with morsels coming from the generosity of their well-fed master.4 This practice was later
compared to the actions of American legislators in trying to direct federal budgets in favor of
their districts.5 While the advent of refrigeration has made the actual pork barrel obsolete, it
persists in reference to political bills that "bring home the bacon" to a legislator‘s district and
constituents.6 In a more technical sense, "Pork Barrel" refers to an appropriation of
government spending meant for localized projects and secured solely or primarily to bring
money to a representative's district.7Some scholars on the subject further use it to refer to
legislative control of local appropriations.8

In the Philippines, "Pork Barrel" has been commonly referred to as lump-sum, discretionary
funds of Members of the Legislature,9 although, as will be later discussed, its usage would
evolve in reference to certain funds of the Executive.
II. History of Congressional Pork Barrel in the Philippines.

A. Pre-Martial Law Era (1922-1972).

Act 3044,10 or the Public Works Act of 1922, is considered11 as the earliest form of
"Congressional Pork Barrel" in the Philippines since the utilization of the funds appropriated
therein were subjected to post-enactment legislator approval. Particularly, in the area of fund
release, Section 312 provides that the sums appropriated for certain public works
projects13 "shall be distributed x x x subject to the approval of a joint committee elected by
the Senate and the House of Representatives. "The committee from each House may also
authorize one of its members to approve the distribution made by the Secretary of
Commerce and Communications."14 Also, in the area of fund realignment, the same section
provides that the said secretary, "with the approval of said joint committee, or of the
authorized members thereof, may, for the purposes of said distribution, transfer unexpended
portions of any item of appropriation under this Act to any other item hereunder."

In 1950, it has been documented15 that post-enactment legislator participation broadened

from the areas of fund release and realignment to the area of project identification. During
that year, the mechanics of the public works act was modified to the extent that the discretion
of choosing projects was transferred from the Secretary of Commerce and Communications
to legislators. "For the first time, the law carried a list of projects selected by Members of
Congress, they ‘being the representatives of the people, either on their own account or by
consultation with local officials or civil leaders.‘"16 During this period, the pork barrel process
commenced with local government councils, civil groups, and individuals appealing to
Congressmen or Senators for projects. Petitions that were accommodated formed part of a
legislator‘s allocation, and the amount each legislator would eventually get is determined in a
caucus convened by the majority. The amount was then integrated into the administration bill
prepared by the Department of Public Works and Communications. Thereafter, the Senate
and the House of Representatives added their own provisions to the bill until it was signed
into law by the President – the Public Works Act.17 In the 1960‘s, however, pork barrel
legislation reportedly ceased in view of the stalemate between the House of Representatives
and the Senate.18

B. Martial Law Era (1972-1986).

While the previous" Congressional Pork Barrel" was apparently discontinued in 1972 after
Martial Law was declared, an era when "one man controlled the legislature,"19 the reprieve
was only temporary. By 1982, the Batasang Pambansa had already introduced a new item in
the General Appropriations Act (GAA) called the" Support for Local Development Projects"
(SLDP) under the article on "National Aid to Local Government Units". Based on reports,20 it
was under the SLDP that the practice of giving lump-sum allocations to individual legislators
began, with each assemblyman receiving ₱500,000.00. Thereafter, assemblymen would
communicate their project preferences to the Ministry of Budget and Management for
approval. Then, the said ministry would release the allocation papers to the Ministry of Local
Governments, which would, in turn, issue the checks to the city or municipal treasurers in the
assemblyman‘s locality. It has been further reported that "Congressional Pork Barrel"
projects under the SLDP also began to cover not only public works projects, or so- called
"hard projects", but also "soft projects",21 or non-public works projects such as those which
would fall under the categories of, among others, education, health and livelihood.22

C. Post-Martial Law Era:

Corazon Cojuangco Aquino Administration (1986-1992).

After the EDSA People Power Revolution in 1986 and the restoration of Philippine
democracy, "Congressional Pork Barrel" was revived in the form of the "Mindanao
Development Fund" and the "Visayas Development Fund" which were created with lump-
sum appropriations of ₱480 Million and ₱240 Million, respectively, for the funding of
development projects in the Mindanao and Visayas areas in 1989. It has been
documented23 that the clamor raised by the Senators and the Luzon legislators for a similar
funding, prompted the creation of the "Countrywide Development Fund" (CDF) which was
integrated into the 1990 GAA24 with an initial funding of ₱2.3 Billion to cover "small local
infrastructure and other priority community projects."

Under the GAAs for the years 1991 and 1992,25 CDF funds were, with the approval of the
President, to be released directly to the implementing agencies but "subject to the
submission of the required list of projects and activities."Although the GAAs from 1990 to
1992 were silent as to the amounts of allocations of the individual legislators, as well as their
participation in the identification of projects, it has been reported26 that by 1992,
Representatives were receiving ₱12.5 Million each in CDF funds, while Senators were
receiving ₱18 Million each, without any limitation or qualification, and that they could identify
any kind of project, from hard or infrastructure projects such as roads, bridges, and buildings
to "soft projects" such as textbooks, medicines, and scholarships.27

D. Fidel Valdez Ramos (Ramos) Administration (1992-1998).

The following year, or in 1993,28 the GAA explicitly stated that the release of CDF funds was
to be made upon the submission of the list of projects and activities identified by, among
others, individual legislators. For the first time, the 1993 CDF Article included an allocation
for the Vice-President.29 As such, Representatives were allocated ₱12.5 Million each in CDF
funds, Senators, ₱18 Million each, and the Vice-President, ₱20 Million.

In 1994,30 1995,31 and 1996,32 the GAAs contained the same provisions on project
identification and fund release as found in the 1993 CDF Article. In addition, however, the
Department of Budget and Management (DBM) was directed to submit reports to the Senate
Committee on Finance and the House Committee on Appropriations on the releases made
from the funds.33

Under the 199734 CDF Article, Members of Congress and the Vice-President, in consultation
with the implementing agency concerned, were directed to submit to the DBM the list of 50%
of projects to be funded from their respective CDF allocations which shall be duly endorsed
by (a) the Senate President and the Chairman of the Committee on Finance, in the case of
the Senate, and (b) the Speaker of the House of Representatives and the Chairman of the
Committee on Appropriations, in the case of the House of Representatives; while the list for
the remaining 50% was to be submitted within six (6) months thereafter. The same article
also stated that the project list, which would be published by the DBM,35 "shall be the basis
for the release of funds" and that "no funds appropriated herein shall be disbursed for
projects not included in the list herein required."

The following year, or in 1998,36 the foregoing provisions regarding the required lists and
endorsements were reproduced, except that the publication of the project list was no longer
required as the list itself sufficed for the release of CDF Funds.
The CDF was not, however, the lone form of "Congressional Pork Barrel" at that time. Other
forms of "Congressional Pork Barrel" were reportedly fashioned and inserted into the GAA
(called "Congressional Insertions" or "CIs") in order to perpetuate the ad ministration‘s
political agenda.37 It has been articulated that since CIs "formed part and parcel of the
budgets of executive departments, they were not easily identifiable and were thus harder to
monitor." Nonetheless, the lawmakers themselves as well as the finance and budget officials
of the implementing agencies, as well as the DBM, purportedly knew about the
insertions.38 Examples of these CIs are the Department of Education (DepEd) School
Building Fund, the Congressional Initiative Allocations, the Public Works Fund, the El Niño
Fund, and the Poverty Alleviation Fund.39 The allocations for the School Building Fund,
particularly, ―shall be made upon prior consultation with the representative of the legislative
district concerned.”40 Similarly, the legislators had the power to direct how, where and when
these appropriations were to be spent.41

E. Joseph Ejercito Estrada (Estrada) Administration (1998-2001).

In 1999,42 the CDF was removed in the GAA and replaced by three (3) separate forms of
CIs, namely, the "Food Security Program Fund,"43 the "Lingap Para Sa Mahihirap Program
Fund,"44and the "Rural/Urban Development Infrastructure Program Fund,"45 all of which
contained a special provision requiring "prior consultation" with the Member s of Congress
for the release of the funds.

It was in the year 200046 that the "Priority Development Assistance Fund" (PDAF) appeared
in the GAA. The requirement of "prior consultation with the respective Representative of the
District" before PDAF funds were directly released to the implementing agency concerned
was explicitly stated in the 2000 PDAF Article. Moreover, realignment of funds to any
expense category was expressly allowed, with the sole condition that no amount shall be
used to fund personal services and other personnel benefits.47 The succeeding PDAF
provisions remained the same in view of the re-enactment48 of the 2000 GAA for the year
2001.

F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010).

The 200249 PDAF Article was brief and straightforward as it merely contained a single
special provision ordering the release of the funds directly to the implementing agency or
local government unit concerned, without further qualifications. The following year,
2003,50 the same single provision was present, with simply an expansion of purpose and
express authority to realign. Nevertheless, the provisions in the 2003 budgets of the
Department of Public Works and Highways51 (DPWH) and the DepEd52 required prior
consultation with Members of Congress on the aspects of implementation delegation and
project list submission, respectively. In 2004, the 2003 GAA was re-enacted.53

In 2005,54 the PDAF Article provided that the PDAF shall be used "to fund priority programs
and projects under the ten point agenda of the national government and shall be released
directly to the implementing agencies." It also introduced the program menu concept,55 which
is essentially a list of general programs and implementing agencies from which a particular
PDAF project may be subsequently chosen by the identifying authority. The 2005 GAA was
re-enacted56 in 2006 and hence, operated on the same bases. In similar regard, the program
menu concept was consistently integrated into the 2007,57 2008,58 2009,59 and 201060 GAAs.

Textually, the PDAF Articles from 2002 to 2010 were silent with respect to the specific
amounts allocated for the individual legislators, as well as their participation in the proposal
and identification of PDAF projects to be funded. In contrast to the PDAF Articles, however,
the provisions under the DepEd School Building Program and the DPWH budget, similar to
its predecessors, explicitly required prior consultation with the concerned Member of
Congress61anent certain aspects of project implementation.

Significantly, it was during this era that provisions which allowed formal participation of non-
governmental organizations (NGO) in the implementation of government projects were
introduced. In the Supplemental Budget for 2006, with respect to the appropriation for school
buildings, NGOs were, by law, encouraged to participate. For such purpose, the law stated
that "the amount of at least ₱250 Million of the ₱500 Million allotted for the construction and
completion of school buildings shall be made available to NGOs including the Federation of
Filipino-Chinese Chambers of Commerce and Industry, Inc. for its "Operation Barrio School"
program, with capability and proven track records in the construction of public school
buildings x x x."62 The same allocation was made available to NGOs in the 2007 and 2009
GAAs under the DepEd Budget.63 Also, it was in 2007 that the Government Procurement
Policy Board64 (GPPB) issued Resolution No. 12-2007 dated June 29, 2007 (GPPB
Resolution 12-2007), amending the implementing rules and regulations65 of RA 9184,66 the
Government Procurement Reform Act, to include, as a form of negotiated procurement,67 the
procedure whereby the Procuring Entity68(the implementing agency) may enter into a
memorandum of agreement with an NGO, provided that "an appropriation law or ordinance
earmarks an amount to be specifically contracted out to NGOs."69

G. Present Administration (2010-Present).

Differing from previous PDAF Articles but similar to the CDF Articles, the 201170 PDAF
Article included an express statement on lump-sum amounts allocated for individual
legislators and the Vice-President: Representatives were given ₱70 Million each, broken
down into ₱40 Million for "hard projects" and ₱30 Million for "soft projects"; while ₱200
Million was given to each Senator as well as the Vice-President, with a ₱100 Million
allocation each for "hard" and "soft projects." Likewise, a provision on realignment of funds
was included, but with the qualification that it may be allowed only once. The same provision
also allowed the Secretaries of Education, Health, Social Welfare and Development, Interior
and Local Government, Environment and Natural Resources, Energy, and Public Works and
Highways to realign PDAF Funds, with the further conditions that: (a) realignment is within
the same implementing unit and same project category as the original project, for
infrastructure projects; (b) allotment released has not yet been obligated for the original
scope of work, and (c) the request for realignment is with the concurrence of the legislator
concerned.71

In the 201272 and 201373 PDAF Articles, it is stated that the "identification of projects and/or
designation of beneficiaries shall conform to the priority list, standard or design prepared by
each implementing agency (priority list requirement) x x x." However, as practiced, it would
still be the individual legislator who would choose and identify the project from the said
priority list.74

Provisions on legislator allocations75 as well as fund realignment76 were included in the 2012
and 2013 PDAF Articles; but the allocation for the Vice-President, which was pegged at
₱200 Million in the 2011 GAA, had been deleted. In addition, the 2013 PDAF Article now
allowed LGUs to be identified as implementing agencies if they have the technical capability
to implement the projects.77 Legislators were also allowed to identify programs/projects,
except for assistance to indigent patients and scholarships, outside of his legislative district
provided that he secures the written concurrence of the legislator of the intended outside-
district, endorsed by the Speaker of the House.78 Finally, any realignment of PDAF funds,
modification and revision of project identification, as well as requests for release of funds,
were all required to be favorably endorsed by the House Committee on Appropriations and
the Senate Committee on Finance, as the case may be.79

III. History of Presidential Pork Barrel in the Philippines.

While the term "Pork Barrel" has been typically associated with lump-sum, discretionary
funds of Members of Congress, the present cases and the recent controversies on the
matter have, however, shown that the term‘s usage has expanded to include certain funds of
the President such as the Malampaya Funds and the Presidential Social Fund.

On the one hand, the Malampaya Funds was created as a special fund under Section 880 of
Presidential Decree No. (PD) 910,81 issued by then President Ferdinand E. Marcos (Marcos)
on March 22, 1976. In enacting the said law, Marcos recognized the need to set up a special
fund to help intensify, strengthen, and consolidate government efforts relating to the
exploration, exploitation, and development of indigenous energy resources vital to economic
growth.82 Due to the energy-related activities of the government in the Malampaya natural
gas field in Palawan, or the "Malampaya Deep Water Gas-to-Power Project",83 the special
fund created under PD 910 has been currently labeled as Malampaya Funds.

On the other hand the Presidential Social Fund was created under Section 12, Title IV84 of
PD 1869,85 or the Charter of the Philippine Amusement and Gaming Corporation
(PAGCOR). PD 1869 was similarly issued by Marcos on July 11, 1983. More than two (2)
years after, he amended PD 1869 and accordingly issued PD 1993 on October 31,
1985,86 amending Section 1287 of the former law. As it stands, the Presidential Social Fund
has been described as a special funding facility managed and administered by the
Presidential Management Staff through which the President provides direct assistance to
priority programs and projects not funded under the regular budget. It is sourced from the
share of the government in the aggregate gross earnings of PAGCOR.88

IV. Controversies in the Philippines.

Over the decades, "pork" funds in the Philippines have increased tremendously,89 owing in
no small part to previous Presidents who reportedly used the "Pork Barrel" in order to gain
congressional support.90 It was in 1996 when the first controversy surrounding the "Pork
Barrel" erupted. Former Marikina City Representative Romeo Candazo (Candazo), then an
anonymous source, "blew the lid on the huge sums of government money that regularly went
into the pockets of legislators in the form of kickbacks."91 He said that "the kickbacks were
‘SOP‘ (standard operating procedure) among legislators and ranged from a low 19 percent to
a high 52 percent of the cost of each project, which could be anything from dredging, rip
rapping, sphalting, concreting, and construction of school buildings."92 "Other sources of
kickbacks that Candazo identified were public funds intended for medicines and textbooks. A
few days later, the tale of the money trail became the banner story of the Philippine Daily
Inquirer issue of August 13, 1996, accompanied by an illustration of a roasted pig."93 "The
publication of the stories, including those about congressional initiative allocations of certain
lawmakers, including ₱3.6 Billion for a Congressman, sparked public outrage."94

Thereafter, or in 2004, several concerned citizens sought the nullification of the PDAF as
enacted in the 2004 GAA for being unconstitutional. Unfortunately, for lack of "any pertinent
evidentiary support that illegal misuse of PDAF in the form of kickbacks has become a
common exercise of unscrupulous Members of Congress," the petition was dismissed.95
Recently, or in July of the present year, the National Bureau of Investigation (NBI) began its
probe into allegations that "the government has been defrauded of some ₱10 Billion over the
past 10 years by a syndicate using funds from the pork barrel of lawmakers and various
government agencies for scores of ghost projects."96 The investigation was spawned by
sworn affidavits of six (6) whistle-blowers who declared that JLN Corporation – "JLN"
standing for Janet Lim Napoles (Napoles) – had swindled billions of pesos from the public
coffers for "ghost projects" using no fewer than 20 dummy NGOs for an entire decade. While
the NGOs were supposedly the ultimate recipients of PDAF funds, the whistle-blowers
declared that the money was diverted into Napoles‘ private accounts.97 Thus, after its
investigation on the Napoles controversy, criminal complaints were filed before the Office of
the Ombudsman, charging five (5) lawmakers for Plunder, and three (3) other lawmakers for
Malversation, Direct Bribery, and Violation of the Anti-Graft and Corrupt Practices Act. Also
recommended to be charged in the complaints are some of the lawmakers‘ chiefs -of-staff or
representatives, the heads and other officials of three (3) implementing agencies, and the
several presidents of the NGOs set up by Napoles.98

On August 16, 2013, the Commission on Audit (CoA) released the results of a three-year
audit investigation99covering the use of legislators' PDAF from 2007 to 2009, or during the
last three (3) years of the Arroyo administration. The purpose of the audit was to determine
the propriety of releases of funds under PDAF and the Various Infrastructures including
Local Projects (VILP)100 by the DBM, the application of these funds and the implementation
of projects by the appropriate implementing agencies and several government-owned-and-
controlled corporations (GOCCs).101 The total releases covered by the audit amounted to
₱8.374 Billion in PDAF and ₱32.664 Billion in VILP, representing 58% and 32%,
respectively, of the total PDAF and VILP releases that were found to have been made
nationwide during the audit period.102 Accordingly, the Co A‘s findings contained in its Report
No. 2012-03 (CoA Report), entitled "Priority Development Assistance Fund (PDAF) and
Various Infrastructures including Local Projects (VILP)," were made public, the highlights of
which are as follows:103

● Amounts released for projects identified by a considerable number of legislators

significantly exceeded their respective allocations.

● Amounts were released for projects outside of legislative districts of sponsoring members
of the Lower House.

● Total VILP releases for the period exceeded the total amount appropriated under the 2007
to 2009 GAAs.

● Infrastructure projects were constructed on private lots without these having been turned
over to the government.

● Significant amounts were released to implementing agencies without the latter‘s

endorsement and without considering their mandated functions, administrative and technical
capabilities to implement projects.

● Implementation of most livelihood projects was not undertaken by the implementing

agencies themselves but by NGOs endorsed by the proponent legislators to which the Funds
were transferred.

● The funds were transferred to the NGOs in spite of the absence of any appropriation law or
ordinance.
● Selection of the NGOs were not compliant with law and regulations.

● Eighty-Two (82) NGOs entrusted with implementation of seven hundred seventy two (772)
projects amount to ₱6.156 Billion were either found questionable, or submitted
questionable/spurious documents, or failed to liquidate in whole or in part their utilization of
the Funds.

● Procurement by the NGOs, as well as some implementing agencies, of goods and services
reportedly used in the projects were not compliant with law.

As for the "Presidential Pork Barrel", whistle-blowers alleged that" at least ₱900 Million from
royalties in the operation of the Malampaya gas project off Palawan province intended for
agrarian reform beneficiaries has gone into a dummy NGO."104 According to incumbent CoA
Chairperson Maria Gracia Pulido Tan (CoA Chairperson), the CoA is, as of this writing, in the
process of preparing "one consolidated report" on the Malampaya Funds.105

V. The Procedural Antecedents.

Spurred in large part by the findings contained in the CoA Report and the Napoles
controversy, several petitions were lodged before the Court similarly seeking that the "Pork
Barrel System" be declared unconstitutional. To recount, the relevant procedural
antecedents in these cases are as follows:

On August 28, 2013, petitioner Samson S. Alcantara (Alcantara), President of the Social
Justice Society, filed a Petition for Prohibition of even date under Rule 65 of the Rules of
Court (Alcantara Petition), seeking that the "Pork Barrel System" be declared
unconstitutional, and a writ of prohibition be issued permanently restraining respondents
Franklin M. Drilon and Feliciano S. Belmonte, Jr., in their respective capacities as the
incumbent Senate President and Speaker of the House of Representatives, from further
taking any steps to enact legislation appropriating funds for the "Pork Barrel System," in
whatever form and by whatever name it may be called, and from approving further releases
pursuant thereto.106 The Alcantara Petition was docketed as G.R. No. 208493.

On September 3, 2013, petitioners Greco Antonious Beda B. Belgica, Jose L. Gonzalez,

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

Lastly, on September 5, 2013, petitioner Pedrito M. Nepomuceno (Nepomuceno), filed a

Petition dated August 23, 2012 (Nepomuceno Petition), seeking that the PDAF be declared
unconstitutional, and a cease and desist order be issued restraining President Benigno
Simeon S. Aquino III (President Aquino) and Secretary Abad from releasing such funds to
Members of Congress and, instead, allow their release to fund priority projects identified and
approved by the Local Development Councils in consultation with the executive departments,
such as the DPWH, the Department of Tourism, the Department of Health, the Department
of Transportation, and Communication and the National Economic Development
Authority.111 The Nepomuceno Petition was docketed as UDK-14951.112

On September 10, 2013, the Court issued a Resolution of even date (a) consolidating all
cases; (b) requiring public respondents to comment on the consolidated petitions; (c) issuing
a TRO (September 10, 2013 TRO) enjoining the DBM, National Treasurer, the Executive
Secretary, or any of the persons acting under their authority from releasing (1) the remaining
PDAF allocated to Members of Congress under the GAA of 2013, and (2) Malampaya Funds
under the phrase "for such other purposes as may be hereafter directed by the President"
pursuant to Section 8 of PD 910 but not for the purpose of "financing energy resource
development and exploitation programs and projects of the government‖ under the same
provision; and (d) setting the consolidated cases for Oral Arguments on October 8, 2013.

On September 23, 2013, the Office of the Solicitor General (OSG) filed a Consolidated
Comment (Comment) of even date before the Court, seeking the lifting, or in the alternative,
the partial lifting with respect to educational and medical assistance purposes, of the Court‘s
September 10, 2013 TRO, and that the consolidated petitions be dismissed for lack of
merit.113

On September 24, 2013, the Court issued a Resolution of even date directing petitioners to
reply to the Comment.

Petitioners, with the exception of Nepomuceno, filed their respective replies to the Comment:
(a) on September 30, 2013, Villegas filed a separate Reply dated September 27, 2013
(Villegas Reply); (b) on October 1, 2013, Belgica, et al. filed a Reply dated September 30,
2013 (Belgica Reply); and (c) on October 2, 2013, Alcantara filed a Reply dated October 1,
2013.

On October 1, 2013, the Court issued an Advisory providing for the guidelines to be
observed by the parties for the Oral Arguments scheduled on October 8, 2013. In view of the
technicality of the issues material to the present cases, incumbent Solicitor General Francis
H. Jardeleza (Solicitor General) was directed to bring with him during the Oral Arguments
representative/s from the DBM and Congress who would be able to competently and
completely answer questions related to, among others, the budgeting process and its
implementation. Further, the CoA Chairperson was appointed as amicus curiae and thereby
requested to appear before the Court during the Oral Arguments.
On October 8 and 10, 2013, the Oral Arguments were conducted. Thereafter, the Court
directed the parties to submit their respective memoranda within a period of seven (7) days,
or until October 17, 2013, which the parties subsequently did.

The Issues Before the Court

Based on the pleadings, and as refined during the Oral Arguments, the following are the
main issues for the Court‘s resolution:

I. Procedural Issues.

Whether or not (a) the issues raised in the consolidated petitions involve an actual and
justiciable controversy; (b) the issues raised in the consolidated petitions are matters of
policy not subject to judicial review; (c) petitioners have legal standing to sue; and (d) the
Court‘s Decision dated August 19, 1994 in G.R. Nos. 113105, 113174, 113766, and 113888,
entitled "Philippine Constitution Association v. Enriquez"114 (Philconsa) and Decision dated
April 24, 2012 in G.R. No. 164987, entitled "Lawyers Against Monopoly and Poverty v.
Secretary of Budget and Management"115 (LAMP) bar the re-litigatio n of the issue of
constitutionality of the "Pork Barrel System" under the principles of res judicata and stare
decisis.

II. Substantive Issues on the "Congressional Pork Barrel."

Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel Laws similar
thereto are unconstitutional considering that they violate the principles of/constitutional
provisions on (a) separation of powers; (b) non-delegability of legislative power; (c) checks
and balances; (d) accountability; (e) political dynasties; and (f) local autonomy.

III. Substantive Issues on the "Presidential Pork Barrel."

Whether or not the phrases (a) "and for such other purposes as may be hereafter directed by
the President" under Section 8 of PD 910,116 relating to the Malampaya Funds, and (b) "to
finance the priority infrastructure development projects and to finance the restoration of
damaged or destroyed facilities due to calamities, as may be directed and authorized by the
Office of the President of the Philippines" under Section 12 of PD 1869, as amended by PD
1993, relating to the Presidential Social Fund, are unconstitutional insofar as they constitute
undue delegations of legislative power.

These main issues shall be resolved in the order that they have been stated. In addition, the
Court shall also tackle certain ancillary issues as prompted by the present cases.

The Court’s Ruling

The petitions are partly granted.

I. Procedural Issues.

The prevailing rule in constitutional litigation is that no question involving the constitutionality
or validity of a law or governmental act may be heard and decided by the Court unless there
is compliance with the legal requisites for judicial inquiry,117 namely: (a) there must be an
actual case or controversy calling for the exercise of judicial power; (b) the person
challenging the act must have the standing to question the validity of the subject act or
issuance; (c) the question of constitutionality must be raised at the earliest opportunity ; and
(d) the issue of constitutionality must be the very lis mota of the case.118 Of these requisites,
case law states that the first two are the most important119and, therefore, shall be discussed
forthwith.

A. Existence of an Actual Case or Controversy.

By constitutional fiat, judicial power operates only when there is an actual case or
controversy.120 This is embodied in Section 1, Article VIII of the 1987 Constitution which
pertinently states that "judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable x x x."
Jurisprudence provides that an actual case or controversy is one which "involves a conflict of
legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as
distinguished from a hypothetical or abstract difference or dispute.121 In other words, "there
must be a contrariety of legal rights that can be interpreted and enforced on the basis of
existing law and jurisprudence."122 Related to the requirement of an actual case or
controversy is the requirement of "ripeness," meaning that the questions raised for
constitutional scrutiny are already ripe for adjudication. "A question is ripe for adjudication
when the act being challenged has had a direct adverse effect on the individual challenging
it. It is a prerequisite that something had then been accomplished or performed by either
branch before a court may come into the picture, and the petitioner must allege the existence
of an immediate or threatened injury to itself as a result of the challenged action."123 "Withal,
courts will decline to pass upon constitutional issues through advisory opinions, bereft as
they are of authority to resolve hypothetical or moot questions."124

Based on these principles, the Court finds that there exists an actual and justiciable
controversy in these cases.

The requirement of contrariety of legal rights is clearly satisfied by the antagonistic positions
of the parties on the constitutionality of the "Pork Barrel System." Also, the questions in these
consolidated cases are ripe for adjudication since the challenged funds and the provisions
allowing for their utilization – such as the 2013 GAA for the PDAF, PD 910 for the
Malampaya Funds and PD 1869, as amended by PD 1993, for the Presidential Social Fund
– are currently existing and operational; hence, there exists an immediate or threatened
injury to petitioners as a result of the unconstitutional use of these public funds.

As for the PDAF, the Court must dispel the notion that the issues related thereto had been
rendered moot and academic by the reforms undertaken by respondents. A case becomes
moot when there is no more actual controversy between the parties or no useful purpose can
be served in passing upon the merits.125 Differing from this description, the Court observes
that respondents‘ proposed line-item budgeting scheme would not terminate the controversy
nor diminish the useful purpose for its resolution since said reform is geared towards the
2014 budget, and not the 2013 PDAF Article which, being a distinct subject matter, remains
legally effective and existing. Neither will the President‘s declaration that he had already
"abolished the PDAF" render the issues on PDAF moot precisely because the Executive
branch of government has no constitutional authority to nullify or annul its legal existence. By
constitutional design, the annulment or nullification of a law may be done either by Congress,
through the passage of a repealing law, or by the Court, through a declaration of
unconstitutionality. Instructive on this point is the following exchange between Associate
Justice Antonio T. Carpio (Justice Carpio) and the Solicitor General during the Oral
Arguments:126
Justice Carpio: The President has taken an oath to faithfully execute the law,127 correct?
Solicitor General Jardeleza: Yes, Your Honor.

Justice Carpio: And so the President cannot refuse to implement the General Appropriations
Act, correct?

Solicitor General Jardeleza: Well, that is our answer, Your Honor. In the case, for example of
the PDAF, the President has a duty to execute the laws but in the face of the outrage over
PDAF, the President was saying, "I am not sure that I will continue the release of the soft
projects," and that started, Your Honor. Now, whether or not that … (interrupted)

Justice Carpio: Yeah. I will grant the President if there are anomalies in the project, he has
the power to stop the releases in the meantime, to investigate, and that is Section 38 of
Chapter 5 of Book 6 of the Revised Administrative Code128 x x x. So at most the President
can suspend, now if the President believes that the PDAF is unconstitutional, can he just
refuse to implement it?

Solicitor General Jardeleza: No, Your Honor, as we were trying to say in the specific case of
the PDAF because of the CoA Report, because of the reported irregularities and this Court
can take judicial notice, even outside, outside of the COA Report, you have the report of the
whistle-blowers, the President was just exercising precisely the duty ….

xxxx

Justice Carpio: Yes, and that is correct. You‘ve seen the CoA Report, there are anomalies,
you stop and investigate, and prosecute, he has done that. But, does that mean that PDAF
has been repealed?

Solicitor General Jardeleza: No, Your Honor x x x.

xxxx

Justice Carpio: So that PDAF can be legally abolished only in two (2) cases. Congress
passes a law to repeal it, or this Court declares it unconstitutional, correct?

Solictor General Jardeleza: Yes, Your Honor.

Justice Carpio: The President has no power to legally abolish PDAF. (Emphases supplied)

Even on the assumption of mootness, jurisprudence, nevertheless, dictates that "the moot
and academic‘ principle is not a magical formula that can automatically dissuade the Court in
resolving a case." The Court will decide cases, otherwise moot, if: first, there is a grave
violation of the Constitution; second, the exceptional character of the situation and the
paramount public interest is involved; third, when the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public; and fourth,
the case is capable of repetition yet evading review.129

The applicability of the first exception is clear from the fundamental posture of petitioners –
they essentially allege grave violations of the Constitution with respect to, inter alia, the
principles of separation of powers, non-delegability of legislative power, checks and
balances, accountability and local autonomy.
The applicability of the second exception is also apparent from the nature of the interests
involved

– the constitutionality of the very system within which significant amounts of public funds
have been and continue to be utilized and expended undoubtedly presents a situation of
exceptional character as well as a matter of paramount public interest. The present petitions,
in fact, have been lodged at a time when the system‘s flaws have never before been
magnified. To the Court‘s mind, the coalescence of the CoA Report, the accounts of
numerous whistle-blowers, and the government‘s own recognition that reforms are needed
"to address the reported abuses of the PDAF"130 demonstrates a prima facie pattern of
abuse which only underscores the importance of the matter. It is also by this finding that the
Court finds petitioners‘ claims as not merely theorized, speculative or hypothetical. Of note is
the weight accorded by the Court to the findings made by the CoA which is the
constitutionally-mandated audit arm of the government. In Delos Santos v. CoA,131 a recent
case wherein the Court upheld the CoA‘s disallowance of irregularly disbursed PDAF funds,
it was emphasized that:

The COA is endowed with enough latitude to determine, prevent, and disallow irregular,
unnecessary, excessive, extravagant or unconscionable expenditures of government funds.
It is tasked to be vigilant and conscientious in safeguarding the proper use of the
government's, and ultimately the people's, property. The exercise of its general audit power
is among the constitutional mechanisms that gives life to the check and balance system
inherent in our form of government.

It is the general policy of the Court to sustain the decisions of administrative authorities,
especially one which is constitutionally-created, such as the CoA, not only on the basis of the
doctrine of separation of powers but also for their presumed expertise in the laws they are
entrusted to enforce. Findings of administrative agencies are accorded not only respect but
also finality when the decision and order are not tainted with unfairness or arbitrariness that
would amount to grave abuse of discretion. It is only when the CoA has acted without or in
excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, that this Court entertains a petition questioning its rulings. x x x. (Emphases
supplied)

Thus, if only for the purpose of validating the existence of an actual and justiciable
controversy in these cases, the Court deems the findings under the CoA Report to be
sufficient.

The Court also finds the third exception to be applicable largely due to the practical need for
a definitive ruling on the system‘s constitutionality. As disclosed during the Oral Arguments,
the CoA Chairperson estimates that thousands of notices of disallowances will be issued by
her office in connection with the findings made in the CoA Report. In this relation, Associate
Justice Marvic Mario Victor F. Leonen (Justice Leonen) pointed out that all of these would
eventually find their way to the courts.132 Accordingly, there is a compelling need to formulate
controlling principles relative to the issues raised herein in order to guide the bench, the bar,
and the public, not just for the expeditious resolution of the anticipated disallowance cases,
but more importantly, so that the government may be guided on how public funds should be
utilized in accordance with constitutional principles.

Finally, the application of the fourth exception is called for by the recognition that the
preparation and passage of the national budget is, by constitutional imprimatur, an affair of
annual occurrence.133 The relevance of the issues before the Court does not cease with the
passage of a "PDAF -free budget for 2014."134 The evolution of the "Pork Barrel System," by
its multifarious iterations throughout the course of history, lends a semblance of truth to
petitioners‘ claim that "the same dog will just resurface wearing a different collar."135 In
Sanlakas v. Executive Secretary,136 the government had already backtracked on a previous
course of action yet the Court used the "capable of repetition but evading review" exception
in order "to prevent similar questions from re- emerging."137 The situation similarly holds true
to these cases. Indeed, the myriad of issues underlying the manner in which certain public
funds are spent, if not resolved at this most opportune time, are capable of repetition and
hence, must not evade judicial review.

B. Matters of Policy: the Political Question Doctrine.

The "limitation on the power of judicial review to actual cases and controversies‖ carries the
assurance that "the courts will not intrude into areas committed to the other branches of
government."138 Essentially, the foregoing limitation is a restatement of the political question
doctrine which, under the classic formulation of Baker v. Carr,139applies when there is found,
among others, "a textually demonstrable constitutional commitment of the issue to a
coordinate political department," "a lack of judicially discoverable and manageable standards
for resolving it" or "the impossibility of deciding without an initial policy determination of a
kind clearly for non- judicial discretion." Cast against this light, respondents submit that the
"the political branches are in the best position not only to perform budget-related reforms but
also to do them in response to the specific demands of their constituents" and, as such,
"urge the Court not to impose a solution at this stage."140

The Court must deny respondents‘ submission.

Suffice it to state that the issues raised before the Court do not present political but legal
questions which are within its province to resolve. A political question refers to "those
questions which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the
Legislature or executive branch of the Government. It is concerned with issues dependent
upon the wisdom, not legality, of a particular measure."141 The intrinsic constitutionality of the
"Pork Barrel System" is not an issue dependent upon the wisdom of the political branches of
government but rather a legal one which the Constitution itself has commanded the Court to
act upon. Scrutinizing the contours of the system along constitutional lines is a task that the
political branches of government are incapable of rendering precisely because it is an
exercise of judicial power. More importantly, the present Constitution has not only vested the
Judiciary the right to exercise judicial power but essentially makes it a duty to proceed
therewith. Section 1, Article VIII of the 1987 Constitution cannot be any clearer: "The judicial
power shall be vested in one Supreme Court and in such lower courts as may be established
by law. It includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government." In Estrada v. Desierto,142 the expanded
concept of judicial power under the 1987 Constitution and its effect on the political question
doctrine was explained as follows:143

To a great degree, the 1987 Constitution has narrowed the reach of the political question
doctrine when it expanded the power of judicial review of this court not only to settle actual
controversies involving rights which are legally demandable and enforceable but also to
determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of government. Heretofore,
the judiciary has focused on the "thou shalt not's" of the Constitution directed against the
exercise of its jurisdiction. With the new provision, however, courts are given a greater
prerogative to determine what it can do to prevent grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of government.
Clearly, the new provision did not just grant the Court power of doing nothing. x x x
(Emphases supplied)

It must also be borne in mind that ― when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other departments; does not in reality
nullify or invalidate an act of the legislature or the executive, but only asserts the solemn and
sacred obligation assigned to it by the Constitution."144 To a great extent, the Court is
laudably cognizant of the reforms undertaken by its co-equal branches of government. But it
is by constitutional force that the Court must faithfully perform its duty. Ultimately, it is the
Court‘s avowed intention that a resolution of these cases would not arrest or in any manner
impede the endeavors of the two other branches but, in fact, help ensure that the pillars of
change are erected on firm constitutional grounds. After all, it is in the best interest of the
people that each great branch of government, within its own sphere, contributes its share
towards achieving a holistic and genuine solution to the problems of society. For all these
reasons, the Court cannot heed respondents‘ plea for judicial restraint.

C. Locus Standi.

"The gist of the question of standing is whether a party alleges such personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult constitutional
questions. Unless a person is injuriously affected in any of his constitutional rights by the
operation of statute or ordinance, he has no standing."145

Petitioners have come before the Court in their respective capacities as citizen-taxpayers
and accordingly, assert that they "dutifully contribute to the coffers of the National
Treasury."146 Clearly, as taxpayers, they possess the requisite standing to question the
validity of the existing "Pork Barrel System" under which the taxes they pay have been and
continue to be utilized. It is undeniable that petitioners, as taxpayers, are bound to suffer
from the unconstitutional usage of public funds, if the Court so rules. Invariably, taxpayers
have been allowed to sue where there is a claim that public funds are illegally disbursed or
that public money is being deflected to any improper purpose, or that public funds are
wasted through the enforcement of an invalid or unconstitutional law,147 as in these cases.

Moreover, as citizens, petitioners have equally fulfilled the standing requirement given that
the issues they have raised may be classified as matters "of transcendental importance, of
overreaching significance to society, or of paramount public interest."148 The CoA
Chairperson‘s statement during the Oral Arguments that the present controversy involves
"not merely a systems failure" but a "complete breakdown of controls"149 amplifies, in
addition to the matters above-discussed, the seriousness of the issues involved herein.
Indeed, of greater import than the damage caused by the illegal expenditure of public funds
is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid
statute.150 All told, petitioners have sufficient locus standi to file the instant cases.

D. Res Judicata and Stare Decisis.

Res judicata (which means a "matter adjudged") and stare decisis non quieta et movere (or
simply, stare decisis which means "follow past precedents and do not disturb what has been
settled") are general procedural law principles which both deal with the effects of previous
but factually similar dispositions to subsequent cases. For the cases at bar, the Court
examines the applicability of these principles in relation to its prior rulings in Philconsa and
LAMP.

The focal point of res judicata is the judgment. The principle states that a judgment on the
merits in a previous case rendered by a court of competent jurisdiction would bind a
subsequent case if, between the first and second actions, there exists an identity of parties,
of subject matter, and of causes of action.151 This required identity is not, however, attendant
hereto since Philconsa and LAMP, respectively involved constitutional challenges against the
1994 CDF Article and 2004 PDAF Article, whereas the cases at bar call for a broader
constitutional scrutiny of the entire "Pork Barrel System." Also, the ruling in LAMP is
essentially a dismissal based on a procedural technicality – and, thus, hardly a judgment on
the merits – in that petitioners therein failed to present any "convincing proof x x x showing
that, indeed, there were direct releases of funds to the Members of Congress, who actually
spend them according to their sole discretion" or "pertinent evidentiary support to
demonstrate the illegal misuse of PDAF in the form of kickbacks and has become a common
exercise of unscrupulous Members of Congress." As such, the Court up held, in view of the
presumption of constitutionality accorded to every law, the 2004 PDAF Article, and saw "no
need to review or reverse the standing pronouncements in the said case." Hence, for the
foregoing reasons, the res judicata principle, insofar as the Philconsa and LAMP cases are
concerned, cannot apply.

On the other hand, the focal point of stare decisis is the doctrine created. The principle,
entrenched under Article 8152 of the Civil Code, evokes the general rule that, for the sake of
certainty, a conclusion reached in one case should be doctrinally applied to those that follow
if the facts are substantially the same, even though the parties may be different. It proceeds
from the first principle of justice that, absent any powerful countervailing considerations, like
cases ought to be decided alike. Thus, where the same questions relating to the same event
have been put forward by the parties similarly situated as in a previous case litigated and
decided by a competent court, the rule of stare decisis is a bar to any attempt to re-litigate
the same issue.153

Philconsa was the first case where a constitutional challenge against a Pork Barrel provision,
i.e., the 1994 CDF Article, was resolved by the Court. To properly understand its context,
petitioners‘ posturing was that "the power given to the Members of Congress to propose and
identify projects and activities to be funded by the CDF is an encroachment by the legislature
on executive power, since said power in an appropriation act is in implementation of the law"
and that "the proposal and identification of the projects do not involve the making of laws or
the repeal and amendment thereof, the only function given to the Congress by the
Constitution."154 In deference to the foregoing submissions, the Court reached the following
main conclusions: one, under the Constitution, the power of appropriation, or the "power of
the purse," belongs to Congress; two, the power of appropriation carries with it the power to
specify the project or activity to be funded under the appropriation law and it can be detailed
and as broad as Congress wants it to be; and, three, the proposals and identifications made
by Members of Congress are merely recommendatory. At once, it is apparent that the
Philconsa resolution was a limited response to a separation of powers problem, specifically
on the propriety of conferring post-enactment identification authority to Members of
Congress. On the contrary, the present cases call for a more holistic examination of (a) the
inter-relation between the CDF and PDAF Articles with each other, formative as they are of
the entire "Pork Barrel System" as well as (b) the intra-relation of post-enactment measures
contained within a particular CDF or PDAF Article, including not only those related to the
area of project identification but also to the areas of fund release and realignment. The
complexity of the issues and the broader legal analyses herein warranted may be, therefore,
considered as a powerful countervailing reason against a wholesale application of the stare
decisis principle.

In addition, the Court observes that the Philconsa ruling was actually riddled with inherent
constitutional inconsistencies which similarly countervail against a full resort to stare decisis.
As may be deduced from the main conclusions of the case, Philconsa‘s fundamental premise
in allowing Members of Congress to propose and identify of projects would be that the said
identification authority is but an aspect of the power of appropriation which has been
constitutionally lodged in Congress. From this premise, the contradictions may be easily
seen. If the authority to identify projects is an aspect of appropriation and the power of
appropriation is a form of legislative power thereby lodged in Congress, then it follows that:
(a) it is Congress which should exercise such authority, and not its individual Members; (b)
such authority must be exercised within the prescribed procedure of law passage and,
hence, should not be exercised after the GAA has already been passed; and (c) such
authority, as embodied in the GAA, has the force of law and, hence, cannot be merely
recommendatory. Justice Vitug‘s Concurring Opinion in the same case sums up the
Philconsa quandary in this wise: "Neither would it be objectionable for Congress, by law, to
appropriate funds for such specific projects as it may be minded; to give that authority,
however, to the individual members of Congress in whatever guise, I am afraid, would be
constitutionally impermissible." As the Court now largely benefits from hindsight and current
findings on the matter, among others, the CoA Report, the Court must partially abandon its
previous ruling in Philconsa insofar as it validated the post-enactment identification authority
of Members of Congress on the guise that the same was merely recommendatory. This
postulate raises serious constitutional inconsistencies which cannot be simply excused on
the ground that such mechanism is "imaginative as it is innovative." Moreover, it must be
pointed out that the recent case of Abakada Guro Party List v. Purisima155(Abakada) has
effectively overturned Philconsa‘s allowance of post-enactment legislator participation in view
of the separation of powers principle. These constitutional inconsistencies and the Abakada
rule will be discussed in greater detail in the ensuing section of this Decision.

As for LAMP, suffice it to restate that the said case was dismissed on a procedural
technicality and, hence, has not set any controlling doctrine susceptible of current application
to the substantive issues in these cases. In fine, stare decisis would not apply.

II. Substantive Issues.

A. Definition of Terms.

Before the Court proceeds to resolve the substantive issues of these cases, it must first
define the terms "Pork Barrel System," "Congressional Pork Barrel," and "Presidential Pork
Barrel" as they are essential to the ensuing discourse.

Petitioners define the term "Pork Barrel System" as the "collusion between the Legislative
and Executive branches of government to accumulate lump-sum public funds in their offices
with unchecked discretionary powers to determine its distribution as political
largesse."156 They assert that the following elements make up the Pork Barrel System: (a)
lump-sum funds are allocated through the appropriations process to an individual officer; (b)
the officer is given sole and broad discretion in determining how the funds will be used or
expended; (c) the guidelines on how to spend or use the funds in the appropriation are either
vague, overbroad or inexistent; and (d) projects funded are intended to benefit a definite
constituency in a particular part of the country and to help the political careers of the
disbursing official by yielding rich patronage benefits.157 They further state that the Pork
Barrel System is comprised of two (2) kinds of discretionary public funds: first, the
Congressional (or Legislative) Pork Barrel, currently known as the PDAF;158 and, second, the
Presidential (or Executive) Pork Barrel, specifically, the Malampaya Funds under PD 910
and the Presidential Social Fund under PD 1869, as amended by PD 1993.159

Considering petitioners‘ submission and in reference to its local concept and legal history,
the Court defines the Pork Barrel System as the collective body of rules and practices that
govern the manner by which lump-sum, discretionary funds, primarily intended for local
projects, are utilized through the respective participations of the Legislative and Executive
branches of government, including its members. The Pork Barrel System involves two (2)
kinds of lump-sum discretionary funds:

First, there is the Congressional Pork Barrel which is herein defined as a kind of lump-sum,
discretionary fund wherein legislators, either individually or collectively organized into
committees, are able to effectively control certain aspects of the fund’s utilization through
various post-enactment measures and/or practices. In particular, petitioners consider the
PDAF, as it appears under the 2013 GAA, as Congressional Pork Barrel since it is, inter alia,
a post-enactment measure that allows individual legislators to wield a collective
power;160 and

Second, there is the Presidential Pork Barrel which is herein defined as a kind of lump-sum,
discretionary fund which allows the President to determine the manner of its utilization. For
reasons earlier stated,161 the Court shall delimit the use of such term to refer only to the
Malampaya Funds and the Presidential Social Fund.

With these definitions in mind, the Court shall now proceed to discuss the substantive issues
of these cases.

B. Substantive Issues on the Congressional Pork Barrel.

1. Separation of Powers.

a. Statement of Principle.

The principle of separation of powers refers to the constitutional demarcation of the three
fundamental powers of government. In the celebrated words of Justice Laurel in Angara v.
Electoral Commission,162 it means that the "Constitution has blocked out with deft strokes
and in bold lines, allotment of power to the executive, the legislative and the judicial
departments of the government."163 To the legislative branch of government, through
Congress,164belongs the power to make laws; to the executive branch of government,
through the President,165 belongs the power to enforce laws; and to the judicial branch of
government, through the Court,166 belongs the power to interpret laws. Because the three
great powers have been, by constitutional design, ordained in this respect, "each department
of the government has exclusive cognizance of matters within its jurisdiction, and is supreme
within its own sphere."167 Thus, "the legislature has no authority to execute or construe the
law, the executive has no authority to make or construe the law, and the judiciary has no
power to make or execute the law."168 The principle of separation of powers and its concepts
of autonomy and independence stem from the notion that the powers of government must be
divided to avoid concentration of these powers in any one branch; the division, it is hoped,
would avoid any single branch from lording its power over the other branches or the
citizenry.169 To achieve this purpose, the divided power must be wielded by co-equal
branches of government that are equally capable of independent action in exercising their
respective mandates. Lack of independence would result in the inability of one branch of
government to check the arbitrary or self-interest assertions of another or others.170

Broadly speaking, there is a violation of the separation of powers principle when one branch
of government unduly encroaches on the domain of another. US Supreme Court decisions
instruct that the principle of separation of powers may be violated in two (2) ways: firstly,
"one branch may interfere impermissibly with the other’s performance of its constitutionally
assigned function";171 and "alternatively, the doctrine may be violated when one branch
assumes a function that more properly is entrusted to another."172 In other words, there is a
violation of the principle when there is impermissible (a) interference with and/or (b)
assumption of another department‘s functions.

The enforcement of the national budget, as primarily contained in the GAA, is indisputably a
function both constitutionally assigned and properly entrusted to the Executive branch of
government. In Guingona, Jr. v. Hon. Carague173 (Guingona, Jr.), the Court explained that
the phase of budget execution "covers the various operational aspects of budgeting" and
accordingly includes "the evaluation of work and financial plans for individual activities," the
"regulation and release of funds" as well as all "other related activities" that comprise the
budget execution cycle.174 This is rooted in the principle that the allocation of power in the
three principal branches of government is a grant of all powers inherent in them.175 Thus,
unless the Constitution provides otherwise, the Executive department should exclusively
exercise all roles and prerogatives which go into the implementation of the national budget
as provided under the GAA as well as any other appropriation law.

In view of the foregoing, the Legislative branch of government, much more any of its
members, should not cross over the field of implementing the national budget since, as
earlier stated, the same is properly the domain of the Executive. Again, in Guingona, Jr., the
Court stated that "Congress enters the picture when it deliberates or acts on the budget
proposals of the President. Thereafter, Congress, "in the exercise of its own judgment and
wisdom, formulates an appropriation act precisely following the process established by the
Constitution, which specifies that no money may be paid from the Treasury except in
accordance with an appropriation made by law." Upon approval and passage of the GAA,
Congress‘ law -making role necessarily comes to an end and from there the Executive‘s role
of implementing the national budget begins. So as not to blur the constitutional boundaries
between them, Congress must "not concern it self with details for implementation by the
Executive."176

The foregoing cardinal postulates were definitively enunciated in Abakada where the Court
held that "from the moment the law becomes effective, any provision of law that empowers
Congress or any of its members to play any role in the implementation or enforcement of the
law violates the principle of separation of powers and is thus unconstitutional."177 It must be
clarified, however, that since the restriction only pertains to "any role in the implementation or
enforcement of the law," Congress may still exercise its oversight function which is a
mechanism of checks and balances that the Constitution itself allows. But it must be made
clear that Congress‘ role must be confined to mere oversight. Any post-enactment-measure
allowing legislator participation beyond oversight is bereft of any constitutional basis and
hence, tantamount to impermissible interference and/or assumption of executive functions.
As the Court ruled in Abakada:178
Any post-enactment congressional measure x x x should be limited to scrutiny and
investigation.1âwphi1 In particular, congressional oversight must be confined to the
following:

(1) scrutiny based primarily on Congress‘ power of appropriation and the budget hearings
conducted in connection with it, its power to ask heads of departments to appear before and
be heard by either of its Houses on any matter pertaining to their departments and its power
of confirmation; and

(2) investigation and monitoring of the implementation of laws pursuant to the power of
Congress to conduct inquiries in aid of legislation.

Any action or step beyond that will undermine the separation of powers guaranteed by the
Constitution. (Emphases supplied)

b. Application.

In these cases, petitioners submit that the Congressional Pork Barrel – among others, the
2013 PDAF Article – "wrecks the assignment of responsibilities between the political
branches" as it is designed to allow individual legislators to interfere "way past the time it
should have ceased" or, particularly, "after the GAA is passed."179 They state that the
findings and recommendations in the CoA Report provide "an illustration of how absolute
and definitive the power of legislators wield over project implementation in complete violation
of the constitutional principle of separation of powers."180 Further, they point out that the
Court in the Philconsa case only allowed the CDF to exist on the condition that individual
legislators limited their role to recommending projects and not if they actually dictate their
implementation.181

For their part, respondents counter that the separations of powers principle has not been
violated since the President maintains "ultimate authority to control the execution of the
GAA‖ and that he "retains the final discretion to reject" the legislators‘ proposals.182 They
maintain that the Court, in Philconsa, "upheld the constitutionality of the power of members
of Congress to propose and identify projects so long as such proposal and identification are
recommendatory."183 As such, they claim that "everything in the Special Provisions [of the
2013 PDAF Article follows the Philconsa framework, and hence, remains constitutional."184

The Court rules in favor of petitioners.

As may be observed from its legal history, the defining feature of all forms of Congressional
Pork Barrel would be the authority of legislators to participate in the post-enactment phases
of project implementation.

At its core, legislators – may it be through project lists,185 prior consultations186 or program
menus187 – have been consistently accorded post-enactment authority to identify the projects
they desire to be funded through various Congressional Pork Barrel allocations. Under the
2013 PDAF Article, the statutory authority of legislators to identify projects post-GAA may be
construed from the import of Special Provisions 1 to 3 as well as the second paragraph of
Special Provision 4. To elucidate, Special Provision 1 embodies the program menu feature
which, as evinced from past PDAF Articles, allows individual legislators to identify PDAF
projects for as long as the identified project falls under a general program listed in the said
menu. Relatedly, Special Provision 2 provides that the implementing agencies shall, within
90 days from the GAA is passed, submit to Congress a more detailed priority list, standard or
design prepared and submitted by implementing agencies from which the legislator may
make his choice. The same provision further authorizes legislators to identify PDAF projects
outside his district for as long as the representative of the district concerned concurs in
writing. Meanwhile, Special Provision 3 clarifies that PDAF projects refer to "projects to be
identified by legislators"188 and thereunder provides the allocation limit for the total amount of
projects identified by each legislator. Finally, paragraph 2 of Special Provision 4 requires that
any modification and revision of the project identification "shall be submitted to the House
Committee on Appropriations and the Senate Committee on Finance for favorable
endorsement to the DBM or the implementing agency, as the case may be." From the
foregoing special provisions, it cannot be seriously doubted that legislators have been
accorded post-enactment authority to identify PDAF projects.

Aside from the area of project identification, legislators have also been accorded post-
enactment authority in the areas of fund release and realignment. Under the 2013 PDAF
Article, the statutory authority of legislators to participate in the area of fund release through
congressional committees is contained in Special Provision 5 which explicitly states that "all
request for release of funds shall be supported by the documents prescribed under Special
Provision No. 1 and favorably endorsed by House Committee on Appropriations and the
Senate Committee on Finance, as the case may be"; while their statutory authority to
participate in the area of fund realignment is contained in: first , paragraph 2, Special
Provision 4189 which explicitly state s, among others, that "any realignment of funds shall be
submitted to the House Committee on Appropriations and the Senate Committee on Finance
for favorable endorsement to the DBM or the implementing agency, as the case may be‖ ;
and, second , paragraph 1, also of Special Provision 4 which authorizes the "Secretaries of
Agriculture, Education, Energy, Interior and Local Government, Labor and Employment,
Public Works and Highways, Social Welfare and Development and Trade and Industry190 x x
x to approve realignment from one project/scope to another within the allotment received
from this Fund, subject to among others (iii) the request is with the concurrence of the
legislator concerned."

Clearly, these post-enactment measures which govern the areas of project identification,
fund release and fund realignment are not related to functions of congressional oversight
and, hence, allow legislators to intervene and/or assume duties that properly belong to the
sphere of budget execution. Indeed, by virtue of the foregoing, legislators have been, in one
form or another, authorized to participate in – as Guingona, Jr. puts it – "the various
operational aspects of budgeting," including "the evaluation of work and financial plans for
individual activities" and the "regulation and release of funds" in violation of the separation of
powers principle. The fundamental rule, as categorically articulated in Abakada, cannot be
overstated – from the moment the law becomes effective, any provision of law that
empowers Congress or any of its members to play any role in the implementation or
enforcement of the law violates the principle of separation of powers and is thus
unconstitutional.191 That the said authority is treated as merely recommendatory in nature
does not alter its unconstitutional tenor since the prohibition, to repeat, covers any role in the
implementation or enforcement of the law. Towards this end, the Court must therefore
abandon its ruling in Philconsa which sanctioned the conduct of legislator identification on
the guise that the same is merely recommendatory and, as such, respondents‘ reliance on
the same falters altogether.

Besides, it must be pointed out that respondents have nonetheless failed to substantiate
their position that the identification authority of legislators is only of recommendatory import.
Quite the contrary, respondents – through the statements of the Solicitor General during the
Oral Arguments – have admitted that the identification of the legislator constitutes a
mandatory requirement before his PDAF can be tapped as a funding source, thereby
highlighting the indispensability of the said act to the entire budget execution process:192

Justice Bernabe: Now, without the individual legislator’s identification of the project, can the
PDAF of the legislator be utilized?

Solicitor General Jardeleza: No, Your Honor.

Justice Bernabe: It cannot?

Solicitor General Jardeleza: It cannot… (interrupted)

Justice Bernabe: So meaning you should have the identification of the project by the
individual legislator?

Solicitor General Jardeleza: Yes, Your Honor.

xxxx

Justice Bernabe: In short, the act of identification is mandatory?

Solictor General Jardeleza: Yes, Your Honor. In the sense that if it is not done and then there
is no identification.

xxxx

Justice Bernabe: Now, would you know of specific instances when a project was
implemented without the identification by the individual legislator?

Solicitor General Jardeleza: I do not know, Your Honor; I do not think so but I have no
specific examples. I would doubt very much, Your Honor, because to implement, there is a
need for a SARO and the NCA. And the SARO and the NCA are triggered by an
identification from the legislator.

xxxx

Solictor General Jardeleza: What we mean by mandatory, Your Honor, is we were replying
to a question, "How can a legislator make sure that he is able to get PDAF Funds?" It is
mandatory in the sense that he must identify, in that sense, Your Honor. Otherwise, if he
does not identify, he cannot avail of the PDAF Funds and his district would not be able to
have PDAF Funds, only in that sense, Your Honor. (Emphases supplied)

Thus, for all the foregoing reasons, the Court hereby declares the 2013 PDAF Article as well
as all other provisions of law which similarly allow legislators to wield any form of post-
enactment authority in the implementation or enforcement of the budget, unrelated to
congressional oversight, as violative of the separation of powers principle and thus
unconstitutional. Corollary thereto, informal practices, through which legislators have
effectively intruded into the proper phases of budget execution, must be deemed as acts of
grave abuse of discretion amounting to lack or excess of jurisdiction and, hence, accorded
the same unconstitutional treatment. That such informal practices do exist and have, in fact,
been constantly observed throughout the years has not been substantially disputed here. As
pointed out by Chief Justice Maria Lourdes P.A. Sereno (Chief Justice Sereno) during the
Oral Arguments of these cases:193
Chief Justice Sereno:

Now, from the responses of the representative of both, the DBM and two (2) Houses of
Congress, if we enforces the initial thought that I have, after I had seen the extent of this
research made by my staff, that neither the Executive nor Congress frontally faced the
question of constitutional compatibility of how they were engineering the budget process. In
fact, the words you have been using, as the three lawyers of the DBM, and both Houses of
Congress has also been using is surprise; surprised that all of these things are now
surfacing. In fact, I thought that what the 2013 PDAF provisions did was to codify in one
section all the past practice that had been done since 1991. In a certain sense, we should be
thankful that they are all now in the PDAF Special Provisions. x x x (Emphasis and
underscoring supplied)

Ultimately, legislators cannot exercise powers which they do not have, whether through
formal measures written into the law or informal practices institutionalized in government
agencies, else the Executive department be deprived of what the Constitution has vested as
its own.

2. Non-delegability of Legislative Power.

a. Statement of Principle.

As an adjunct to the separation of powers principle,194 legislative power shall be exclusively

exercised by the body to which the Constitution has conferred the same. In particular,
Section 1, Article VI of the 1987 Constitution states that such power shall be vested in the
Congress of the Philippines which shall consist of a Senate and a House of Representatives,
except to the extent reserved to the people by the provision on initiative and
referendum.195 Based on this provision, it is clear that only Congress, acting as a bicameral
body, and the people, through the process of initiative and referendum, may constitutionally
wield legislative power and no other. This premise embodies the principle of non-delegability
of legislative power, and the only recognized exceptions thereto would be: (a) delegated
legislative power to local governments which, by immemorial practice, are allowed to
legislate on purely local matters;196 and (b) constitutionally-grafted exceptions such as the
authority of the President to, by law, exercise powers necessary and proper to carry out a
declared national policy in times of war or other national emergency,197or fix within specified
limits, and subject to such limitations and restrictions as Congress may impose, tariff rates,
import and export quotas, tonnage and wharfage dues, and other duties or imposts within the
framework of the national development program of the Government.198

Notably, the principle of non-delegability should not be confused as a restriction to delegate

rule-making authority to implementing agencies for the limited purpose of either filling up the
details of the law for its enforcement (supplementary rule-making) or ascertaining facts to
bring the law into actual operation (contingent rule-making).199The conceptual treatment and
limitations of delegated rule-making were explained in the case of People v. Maceren200 as
follows:

The grant of the rule-making power to administrative agencies is a relaxation of the principle
of separation of powers and is an exception to the nondelegation of legislative powers.
Administrative regulations or "subordinate legislation" calculated to promote the public
interest are necessary because of "the growing complexity of modern life, the multiplication
of the subjects of governmental regulations, and the increased difficulty of administering the
law."

xxxx

Nevertheless, it must be emphasized that the rule-making power must be confined to details
for regulating the mode or proceeding to carry into effect the law as it has been enacted. The
power cannot be extended to amending or expanding the statutory requirements or to
embrace matters not covered by the statute. Rules that subvert the statute cannot be
sanctioned. (Emphases supplied)

b. Application.

In the cases at bar, the Court observes that the 2013 PDAF Article, insofar as it confers post-
enactment identification authority to individual legislators, violates the principle of non-
delegability since said legislators are effectively allowed to individually exercise the power of
appropriation, which – as settled in Philconsa – is lodged in Congress.201 That the power to
appropriate must be exercised only through legislation is clear from Section 29(1), Article VI
of the 1987 Constitution which states that: "No money shall be paid out of the Treasury
except in pursuance of an appropriation made by law." To understand what constitutes an
act of appropriation, the Court, in Bengzon v. Secretary of Justice and Insular
Auditor202 (Bengzon), held that the power of appropriation involves (a) the setting apart by
law of a certain sum from the public revenue for (b) a specified purpose. Essentially, under
the 2013 PDAF Article, individual legislators are given a personal lump-sum fund from which
they are able to dictate (a) how much from such fund would go to (b) a specific project or
beneficiary that they themselves also determine. As these two (2) acts comprise the exercise
of the power of appropriation as described in Bengzon, and given that the 2013 PDAF Article
authorizes individual legislators to perform the same, undoubtedly, said legislators have
been conferred the power to legislate which the Constitution does not, however, allow. Thus,
keeping with the principle of non-delegability of legislative power, the Court hereby declares
the 2013 PDAF Article, as well as all other forms of Congressional Pork Barrel which contain
the similar legislative identification feature as herein discussed, as unconstitutional.

3. Checks and Balances.

a. Statement of Principle; Item-Veto Power.

The fact that the three great powers of government are intended to be kept separate and
distinct does not mean that they are absolutely unrestrained and independent of each other.
The Constitution has also provided for an elaborate system of checks and balances to
secure coordination in the workings of the various departments of the government.203

A prime example of a constitutional check and balance would be the President’s power to
veto an item written into an appropriation, revenue or tariff bill submitted to him by Congress
for approval through a process known as "bill presentment." The President‘s item-veto power
is found in Section 27(2), Article VI of the 1987 Constitution which reads as follows:

Sec. 27. x x x.

xxxx
(2) The President shall have the power to veto any particular item or items in an
appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he
does not object.

The presentment of appropriation, revenue or tariff bills to the President, wherein he may
exercise his power of item-veto, forms part of the "single, finely wrought and exhaustively
considered, procedures" for law-passage as specified under the Constitution.204 As stated in
Abakada, the final step in the law-making process is the "submission of the bill to the
President for approval. Once approved, it takes effect as law after the required
publication."205

Elaborating on the President‘s item-veto power and its relevance as a check on the
legislature, the Court, in Bengzon, explained that:206

The former Organic Act and the present Constitution of the Philippines make the Chief
Executive an integral part of the law-making power. His disapproval of a bill, commonly
known as a veto, is essentially a legislative act. The questions presented to the mind of the
Chief Executive are precisely the same as those the legislature must determine in passing a
bill, except that his will be a broader point of view.

The Constitution is a limitation upon the power of the legislative department of the
government, but in this respect it is a grant of power to the executive department. The
Legislature has the affirmative power to enact laws; the Chief Executive has the negative
power by the constitutional exercise of which he may defeat the will of the Legislature. It
follows that the Chief Executive must find his authority in the Constitution. But in exercising
that authority he may not be confined to rules of strict construction or hampered by the
unwise interference of the judiciary. The courts will indulge every intendment in favor of the
constitutionality of a veto in the same manner as they will presume the constitutionality of an
act as originally passed by the Legislature. (Emphases supplied)

The justification for the President‘s item-veto power rests on a variety of policy goals such as
to prevent log-rolling legislation,207 impose fiscal restrictions on the legislature, as well as to
fortify the executive branch‘s role in the budgetary process.208 In Immigration and
Naturalization Service v. Chadha, the US Supreme Court characterized the President‘s item-
power as "a salutary check upon the legislative body, calculated to guard the community
against the effects of factions, precipitancy, or of any impulse unfriendly to the public good,
which may happen to influence a majority of that body"; phrased differently, it is meant to
"increase the chances in favor of the community against the passing of bad laws, through
haste, inadvertence, or design."209

For the President to exercise his item-veto power, it necessarily follows that there exists a
proper "item" which may be the object of the veto. An item, as defined in the field of
appropriations, pertains to "the particulars, the details, the distinct and severable parts of the
appropriation or of the bill." In the case of Bengzon v. Secretary of Justice of the Philippine
Islands,210 the US Supreme Court characterized an item of appropriation as follows:

An item of an appropriation bill obviously means an item which, in itself, is a specific

appropriation of money, not some general provision of law which happens to be put into an
appropriation bill. (Emphases supplied)
On this premise, it may be concluded that an appropriation bill, to ensure that the President
may be able to exercise his power of item veto, must contain "specific appropriations of
money" and not only "general provisions" which provide for parameters of appropriation.

Further, it is significant to point out that an item of appropriation must be an item

characterized by singular correspondence – meaning an allocation of a specified singular
amount for a specified singular purpose, otherwise known as a "line-item."211 This treatment
not only allows the item to be consistent with its definition as a "specific appropriation of
money" but also ensures that the President may discernibly veto the same. Based on the
foregoing formulation, the existing Calamity Fund, Contingent Fund and the Intelligence
Fund, being appropriations which state a specified amount for a specific purpose, would then
be considered as "line- item" appropriations which are rightfully subject to item veto.
Likewise, it must be observed that an appropriation may be validly apportioned into
component percentages or values; however, it is crucial that each percentage or value must
be allocated for its own corresponding purpose for such component to be considered as a
proper line-item. Moreover, as Justice Carpio correctly pointed out, a valid appropriation may
even have several related purposes that are by accounting and budgeting practice
considered as one purpose, e.g., MOOE (maintenance and other operating expenses), in
which case the related purposes shall be deemed sufficiently specific for the exercise of the
President‘s item veto power. Finally, special purpose funds and discretionary funds would
equally square with the constitutional mechanism of item-veto for as long as they follow the
rule on singular correspondence as herein discussed. Anent special purpose funds, it must
be added that Section 25(4), Article VI of the 1987 Constitution requires that the "special
appropriations bill shall specify the purpose for which it is intended, and shall be supported
by funds actually available as certified by the National Treasurer, or t o be raised by a
corresponding revenue proposal therein." Meanwhile, with respect to discretionary funds,
Section 2 5(6), Article VI of the 1987 Constitution requires that said funds "shall be disbursed
only for public purposes to be supported by appropriate vouchers and subject to such
guidelines as may be prescribed by law."

In contrast, what beckons constitutional infirmity are appropriations which merely provide for
a singular lump-sum amount to be tapped as a source of funding for multiple purposes.
Since such appropriation type necessitates the further determination of both the actual
amount to be expended and the actual purpose of the appropriation which must still be
chosen from the multiple purposes stated in the law, it cannot be said that the appropriation
law already indicates a "specific appropriation of money‖ and hence, without a proper line-
item which the President may veto. As a practical result, the President would then be faced
with the predicament of either vetoing the entire appropriation if he finds some of its
purposes wasteful or undesirable, or approving the entire appropriation so as not to hinder
some of its legitimate purposes. Finally, it may not be amiss to state that such arrangement
also raises non-delegability issues considering that the implementing authority would still
have to determine, again, both the actual amount to be expended and the actual purpose of
the appropriation. Since the foregoing determinations constitute the integral aspects of the
power to appropriate, the implementing authority would, in effect, be exercising legislative
prerogatives in violation of the principle of non-delegability.

b. Application.

In these cases, petitioners claim that "in the current x x x system where the PDAF is a lump-
sum appropriation, the legislator‘s identification of the projects after the passage of the GAA
denies the President the chance to veto that item later on."212 Accordingly, they submit that
the "item veto power of the President mandates that appropriations bills adopt line-item
budgeting" and that "Congress cannot choose a mode of budgeting which effectively renders
the constitutionally-given power of the President useless."213

On the other hand, respondents maintain that the text of the Constitution envisions a process
which is intended to meet the demands of a modernizing economy and, as such, lump-sum
appropriations are essential to financially address situations which are barely foreseen when
a GAA is enacted. They argue that the decision of the Congress to create some lump-sum
appropriations is constitutionally allowed and textually-grounded.214

The Court agrees with petitioners.

Under the 2013 PDAF Article, the amount of ₱24.79 Billion only appears as a collective
allocation limit since the said amount would be further divided among individual legislators
who would then receive personal lump-sum allocations and could, after the GAA is passed,
effectively appropriate PDAF funds based on their own discretion. As these intermediate
appropriations are made by legislators only after the GAA is passed and hence, outside of
the law, it necessarily means that the actual items of PDAF appropriation would not have
been written into the General Appropriations Bill and thus effectuated without veto
consideration. This kind of lump-sum/post-enactment legislative identification budgeting
system fosters the creation of a budget within a budget" which subverts the prescribed
procedure of presentment and consequently impairs the President‘s power of item veto. As
petitioners aptly point out, the above-described system forces the President to decide
between (a) accepting the entire ₱24.79 Billion PDAF allocation without knowing the specific
projects of the legislators, which may or may not be consistent with his national agenda and
(b) rejecting the whole PDAF to the detriment of all other legislators with legitimate
projects.215

Moreover, even without its post-enactment legislative identification feature, the 2013 PDAF
Article would remain constitutionally flawed since it would then operate as a prohibited form
of lump-sum appropriation above-characterized. In particular, the lump-sum amount of
₱24.79 Billion would be treated as a mere funding source allotted for multiple purposes of
spending, i.e., scholarships, medical missions, assistance to indigents, preservation of
historical materials, construction of roads, flood control, etc. This setup connotes that the
appropriation law leaves the actual amounts and purposes of the appropriation for further
determination and, therefore, does not readily indicate a discernible item which may be
subject to the President‘s power of item veto.

In fact, on the accountability side, the same lump-sum budgeting scheme has, as the CoA
Chairperson relays, "limited state auditors from obtaining relevant data and information that
would aid in more stringently auditing the utilization of said Funds."216 Accordingly, she
recommends the adoption of a "line by line budget or amount per proposed program, activity
or project, and per implementing agency."217

Hence, in view of the reasons above-stated, the Court finds the 2013 PDAF Article, as well
as all Congressional Pork Barrel Laws of similar operation, to be unconstitutional. That such
budgeting system provides for a greater degree of flexibility to account for future
contingencies cannot be an excuse to defeat what the Constitution requires. Clearly, the first
and essential truth of the matter is that unconstitutional means do not justify even
commendable ends.218

c. Accountability.
Petitioners further relate that the system under which various forms of Congressional Pork
Barrel operate defies public accountability as it renders Congress incapable of checking itself
or its Members. In particular, they point out that the Congressional Pork Barrel "gives each
legislator a direct, financial interest in the smooth, speedy passing of the yearly budget"
which turns them "from fiscalizers" into "financially-interested partners."219 They also claim
that the system has an effect on re- election as "the PDAF excels in self-perpetuation of
elective officials." Finally, they add that the "PDAF impairs the power of impeachment" as
such "funds are indeed quite useful, ‘to well, accelerate the decisions of senators.‘"220

The Court agrees in part.

The aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that
"public office is a public trust," is an overarching reminder that every instrumentality of
government should exercise their official functions only in accordance with the principles of
the Constitution which embodies the parameters of the people‘s trust. The notion of a public
trust connotes accountability,221 hence, the various mechanisms in the Constitution which
are designed to exact accountability from public officers.

Among others, an accountability mechanism with which the proper expenditure of public
funds may be checked is the power of congressional oversight. As mentioned in
Abakada,222 congressional oversight may be performed either through: (a) scrutiny based
primarily on Congress‘ power of appropriation and the budget hearings conducted in
connection with it, its power to ask heads of departments to appear before and be heard by
either of its Houses on any matter pertaining to their departments and its power of
confirmation;223 or (b) investigation and monitoring of the implementation of laws pursuant to
the power of Congress to conduct inquiries in aid of legislation.224

The Court agrees with petitioners that certain features embedded in some forms of
Congressional Pork Barrel, among others the 2013 PDAF Article, has an effect on
congressional oversight. The fact that individual legislators are given post-enactment roles in
the implementation of the budget makes it difficult for them to become disinterested
"observers" when scrutinizing, investigating or monitoring the implementation of the
appropriation law. To a certain extent, the conduct of oversight would be tainted as said
legislators, who are vested with post-enactment authority, would, in effect, be checking on
activities in which they themselves participate. Also, it must be pointed out that this very
same concept of post-enactment authorization runs afoul of Section 14, Article VI of the 1987
Constitution which provides that:

Sec. 14. No Senator or Member of the House of Representatives may personally appear as
counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and
other administrative bodies. Neither shall he, directly or indirectly, be interested financially in
any contract with, or in any franchise or special privilege granted by the Government, or any
subdivision, agency, or instrumentality thereof, including any government-owned or
controlled corporation, or its subsidiary, during his term of office. He shall not intervene in
any matter before any office of the Government for his pecuniary benefit or where he may be
called upon to act on account of his office. (Emphasis supplied)

Clearly, allowing legislators to intervene in the various phases of project implementation – a

matter before another office of government – renders them susceptible to taking undue
advantage of their own office.
The Court, however, cannot completely agree that the same post-enactment authority and/or
the individual legislator‘s control of his PDAF per se would allow him to perpetuate himself in
office. Indeed, while the Congressional Pork Barrel and a legislator‘s use thereof may be
linked to this area of interest, the use of his PDAF for re-election purposes is a matter which
must be analyzed based on particular facts and on a case-to-case basis.

Finally, while the Court accounts for the possibility that the close operational proximity
between legislators and the Executive department, through the former‘s post-enactment
participation, may affect the process of impeachment, this matter largely borders on the
domain of politics and does not strictly concern the Pork Barrel System‘s intrinsic
constitutionality. As such, it is an improper subject of judicial assessment.

In sum, insofar as its post-enactment features dilute congressional oversight and violate
Section 14, Article VI of the 1987 Constitution, thus impairing public accountability, the 2013
PDAF Article and other forms of Congressional Pork Barrel of similar nature are deemed as
unconstitutional.

4. Political Dynasties.

One of the petitioners submits that the Pork Barrel System enables politicians who are
members of political dynasties to accumulate funds to perpetuate themselves in power, in
contravention of Section 26, Article II of the 1987 Constitution225 which states that:

Sec. 26. The State shall guarantee equal access to opportunities for public service, and
prohibit political dynasties as may be defined by law. (Emphasis and underscoring supplied)

At the outset, suffice it to state that the foregoing provision is considered as not self-
executing due to the qualifying phrase "as may be defined by law." In this respect, said
provision does not, by and of itself, provide a judicially enforceable constitutional right but
merely specifies guideline for legislative or executive action.226 Therefore, since there
appears to be no standing law which crystallizes the policy on political dynasties for
enforcement, the Court must defer from ruling on this issue.

In any event, the Court finds the above-stated argument on this score to be largely
speculative since it has not been properly demonstrated how the Pork Barrel System would
be able to propagate political dynasties.

5. Local Autonomy.

The State‘s policy on local autonomy is principally stated in Section 25, Article II and
Sections 2 and 3, Article X of the 1987 Constitution which read as follows:

ARTICLE II

Sec. 25. The State shall ensure the autonomy of local governments.

ARTICLE X

Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.
Sec. 3. The Congress shall enact a local government code which shall provide for a more
responsive and accountable local government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative, and referendum, allocate
among the different local government units their powers, responsibilities, and resources, and
provide for the qualifications, election, appointment and removal, term, salaries, powers and
functions and duties of local officials, and all other matters relating to the organization and
operation of the local units.

Pursuant thereto, Congress enacted RA 7160,227 otherwise known as the "Local

Government Code of 1991" (LGC), wherein the policy on local autonomy had been more
specifically explicated as follows:

Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy of the State that the
territorial and political subdivisions of the State shall enjoy genuine and meaningful local
autonomy to enable them to attain their fullest development as self-reliant communities and
make them more effective partners in the attainment of national goals. Toward this end, the
State shall provide for a more responsive and accountable local government structure
instituted through a system of decentralization whereby local government units shall be given
more powers, authority, responsibilities, and resources. The process of decentralization shall
proceed from the National Government to the local government units.

xxxx

(c) It is likewise the policy of the State to require all national agencies and offices to conduct
periodic consultations with appropriate local government units, nongovernmental and
people‘s organizations, and other concerned sectors of the community before any project or
program is implemented in their respective jurisdictions. (Emphases and underscoring
supplied)

The above-quoted provisions of the Constitution and the LGC reveal the policy of the State
to empower local government units (LGUs) to develop and ultimately, become self-sustaining
and effective contributors to the national economy. As explained by the Court in Philippine
Gamefowl Commission v. Intermediate Appellate Court:228

This is as good an occasion as any to stress the commitment of the Constitution to the policy
of local autonomy which is intended to provide the needed impetus and encouragement to
the development of our local political subdivisions as "self - reliant communities." In the
words of Jefferson, "Municipal corporations are the small republics from which the great one
derives its strength." The vitalization of local governments will enable their inhabitants to fully
exploit their resources and more important, imbue them with a deepened sense of
involvement in public affairs as members of the body politic. This objective could be blunted
by undue interference by the national government in purely local affairs which are best
resolved by the officials and inhabitants of such political units. The decision we reach today
conforms not only to the letter of the pertinent laws but also to the spirit of the
Constitution.229 (Emphases and underscoring supplied)

In the cases at bar, petitioners contend that the Congressional Pork Barrel goes against the
constitutional principles on local autonomy since it allows district representatives, who are
national officers, to substitute their judgments in utilizing public funds for local
development.230 The Court agrees with petitioners.
Philconsa described the 1994 CDF as an attempt "to make equal the unequal" and that "it is
also a recognition that individual members of Congress, far more than the President and
their congressional colleagues, are likely to be knowledgeable about the needs of their
respective constituents and the priority to be given each project."231 Drawing strength from
this pronouncement, previous legislators justified its existence by stating that "the relatively
small projects implemented under the Congressional Pork Barrel complement and link the
national development goals to the countryside and grassroots as well as to depressed areas
which are overlooked by central agencies which are preoccupied with mega-
projects.232 Similarly, in his August 23, 2013 speech on the "abolition" of PDAF and
budgetary reforms, President Aquino mentioned that the Congressional Pork Barrel was
originally established for a worthy goal, which is to enable the representatives to identify
projects for communities that the LGU concerned cannot afford.233

Notwithstanding these declarations, the Court, however, finds an inherent defect in the
system which actually belies the avowed intention of "making equal the unequal." In
particular, the Court observes that the gauge of PDAF and CDF allocation/division is based
solely on the fact of office, without taking into account the specific interests and peculiarities
of the district the legislator represents. In this regard, the allocation/division limits are clearly
not based on genuine parameters of equality, wherein economic or geographic indicators
have been taken into consideration. As a result, a district representative of a highly-
urbanized metropolis gets the same amount of funding as a district representative of a far-
flung rural province which would be relatively "underdeveloped" compared to the former. To
add, what rouses graver scrutiny is that even Senators and Party-List Representatives – and
in some years, even the Vice-President – who do not represent any locality, receive funding
from the Congressional Pork Barrel as well. These certainly are anathema to the
Congressional Pork Barrel‘s original intent which is "to make equal the unequal." Ultimately,
the PDAF and CDF had become personal funds under the effective control of each legislator
and given unto them on the sole account of their office.

The Court also observes that this concept of legislator control underlying the CDF and PDAF
conflicts with the functions of the various Local Development Councils (LDCs) which are
already legally mandated to "assist the corresponding sanggunian in setting the direction of
economic and social development, and coordinating development efforts within its territorial
jurisdiction."234 Considering that LDCs are instrumentalities whose functions are essentially
geared towards managing local affairs,235 their programs, policies and resolutions should not
be overridden nor duplicated by individual legislators, who are national officers that have no
law-making authority except only when acting as a body. The undermining effect on local
autonomy caused by the post-enactment authority conferred to the latter was succinctly put
by petitioners in the following wise:236

With PDAF, a Congressman can simply bypass the local development council and initiate
projects on his own, and even take sole credit for its execution. Indeed, this type of
personality-driven project identification has not only contributed little to the overall
development of the district, but has even contributed to "further weakening infrastructure
planning and coordination efforts of the government."

Thus, insofar as individual legislators are authorized to intervene in purely local matters and
thereby subvert genuine local autonomy, the 2013 PDAF Article as well as all other similar
forms of Congressional Pork Barrel is deemed unconstitutional.

With this final issue on the Congressional Pork Barrel resolved, the Court now turns to the
substantive issues involving the Presidential Pork Barrel.
C. Substantive Issues on the Presidential Pork Barrel.

1. Validity of Appropriation.

Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of PD1869 (now,

amended by PD 1993), which respectively provide for the Malampaya Funds and the
Presidential Social Fund, as invalid appropriations laws since they do not have the "primary
and specific" purpose of authorizing the release of public funds from the National Treasury.
Petitioners submit that Section 8 of PD 910 is not an appropriation law since the "primary
and specific‖ purpose of PD 910 is the creation of an Energy Development Board and
Section 8 thereof only created a Special Fund incidental thereto.237 In similar regard,
petitioners argue that Section 12 of PD 1869 is neither a valid appropriations law since the
allocation of the Presidential Social Fund is merely incidental to the "primary and specific"
purpose of PD 1869 which is the amendment of the Franchise and Powers of
PAGCOR.238 In view of the foregoing, petitioners suppose that such funds are being used
without any valid law allowing for their proper appropriation in violation of Section 29(1),
Article VI of the 1987 Constitution which states that: "No money shall be paid out of the
Treasury except in pursuance of an appropriation made by law."239

The Court disagrees.

"An appropriation made by law‖ under the contemplation of Section 29(1), Article VI of the
1987 Constitution exists when a provision of law (a) sets apart a determinate or
determinable240 amount of money and (b) allocates the same for a particular public purpose.
These two minimum designations of amount and purpose stem from the very definition of the
word "appropriation," which means "to allot, assign, set apart or apply to a particular use or
purpose," and hence, if written into the law, demonstrate that the legislative intent to
appropriate exists. As the Constitution "does not provide or prescribe any particular form of
words or religious recitals in which an authorization or appropriation by Congress shall be
made, except that it be ‘made by law,‘" an appropriation law may – according to Philconsa –
be "detailed and as broad as Congress wants it to be" for as long as the intent to appropriate
may be gleaned from the same. As held in the case of Guingona, Jr.:241

There is no provision in our Constitution that provides or prescribes any particular form of
words or religious recitals in which an authorization or appropriation by Congress shall be
made, except that it be "made by law," such as precisely the authorization or appropriation
under the questioned presidential decrees. In other words, in terms of time horizons, an
appropriation may be made impliedly (as by past but subsisting legislations) as well as
expressly for the current fiscal year (as by enactment of laws by the present Congress), just
as said appropriation may be made in general as well as in specific terms. The
Congressional authorization may be embodied in annual laws, such as a general
appropriations act or in special provisions of laws of general or special application which
appropriate public funds for specific public purposes, such as the questioned decrees. An
appropriation measure is sufficient if the legislative intention clearly and certainly appears
from the language employed (In re Continuing Appropriations, 32 P. 272), whether in the
past or in the present. (Emphases and underscoring supplied)

Likewise, as ruled by the US Supreme Court in State of Nevada v. La Grave:242

To constitute an appropriation there must be money placed in a fund applicable to the

designated purpose. The word appropriate means to allot, assign, set apart or apply to a
particular use or purpose. An appropriation in the sense of the constitution means the setting
apart a portion of the public funds for a public purpose. No particular form of words is
necessary for the purpose, if the intention to appropriate is plainly manifested. (Emphases
supplied)

Thus, based on the foregoing, the Court cannot sustain the argument that the appropriation
must be the "primary and specific" purpose of the law in order for a valid appropriation law to
exist. To reiterate, if a legal provision designates a determinate or determinable amount of
money and allocates the same for a particular public purpose, then the legislative intent to
appropriate becomes apparent and, hence, already sufficient to satisfy the requirement of an
"appropriation made by law" under contemplation of the Constitution.

Section 8 of PD 910 pertinently provides:

Section 8. Appropriations. x x x

All fees, revenues and receipts of the Board from any and all sources including receipts from
service contracts and agreements such as application and processing fees, signature bonus,
discovery bonus, production bonus; all money collected from concessionaires, representing
unspent work obligations, fines and penalties under the Petroleum Act of 1949; as well as
the government share representing royalties, rentals, production share on service contracts
and similar payments on the exploration, development and exploitation of energy resources,
shall form part of a Special Fund to be used to finance energy resource development and
exploitation programs and projects of the government and for such other purposes as may
be hereafter directed by the President. (Emphases supplied)

Whereas Section 12 of PD 1869, as amended by PD 1993, reads:

Sec. 12. Special Condition of Franchise. — After deducting five (5%) percent as Franchise
Tax, the Fifty (50%) percent share of the Government in the aggregate gross earnings of the
Corporation from this Franchise, or 60% if the aggregate gross earnings be less than
₱150,000,000.00 shall be set aside and shall accrue to the General Fund to finance the
priority infrastructure development projects and to finance the restoration of damaged or
destroyed facilities due to calamities, as may be directed and authorized by the Office of the
President of the Philippines. (Emphases supplied)

Analyzing the legal text vis-à-vis the above-mentioned principles, it may then be concluded
that (a) Section 8 of PD 910, which creates a Special Fund comprised of "all fees, revenues,
and receipts of the Energy Development Board from any and all sources" (a determinable
amount) "to be used to finance energy resource development and exploitation programs and
projects of the government and for such other purposes as may be hereafter directed by the
President" (a specified public purpose), and (b) Section 12 of PD 1869, as amended by PD
1993, which similarly sets aside, "after deducting five (5%) percent as Franchise Tax, the
Fifty (50%) percent share of the Government in the aggregate gross earnings of PAGCOR,
or 60%, if the aggregate gross earnings be less than ₱150,000,000.00" (also a determinable
amount) "to finance the priority infrastructure development projects and x x x the restoration
of damaged or destroyed facilities due to calamities, as may be directed and authorized by
the Office of the President of the Philippines" (also a specified public purpose), are legal
appropriations under Section 29(1), Article VI of the 1987 Constitution.

In this relation, it is apropos to note that the 2013 PDAF Article cannot be properly deemed
as a legal appropriation under the said constitutional provision precisely because, as earlier
stated, it contains post-enactment measures which effectively create a system of
intermediate appropriations. These intermediate appropriations are the actual appropriations
meant for enforcement and since they are made by individual legislators after the GAA is
passed, they occur outside the law. As such, the Court observes that the real appropriation
made under the 2013 PDAF Article is not the ₱24.79 Billion allocated for the entire PDAF,
but rather the post-enactment determinations made by the individual legislators which are, to
repeat, occurrences outside of the law. Irrefragably, the 2013 PDAF Article does not
constitute an "appropriation made by law" since it, in its truest sense, only authorizes
individual legislators to appropriate in violation of the non-delegability principle as afore-
discussed.

2. Undue Delegation.

On a related matter, petitioners contend that Section 8 of PD 910 constitutes an undue

delegation of legislative power since the phrase "and for such other purposes as may be
hereafter directed by the President" gives the President "unbridled discretion to determine for
what purpose the funds will be used."243 Respondents, on the other hand, urged the Court to
apply the principle of ejusdem generis to the same section and thus, construe the phrase
"and for such other purposes as may be hereafter directed by the President" to refer only to
other purposes related "to energy resource development and exploitation programs and
projects of the government."244

The Court agrees with petitioners‘ submissions.

While the designation of a determinate or determinable amount for a particular public

purpose is sufficient for a legal appropriation to exist, the appropriation law must contain
adequate legislative guidelines if the same law delegates rule-making authority to the
Executive245 either for the purpose of (a) filling up the details of the law for its enforcement,
known as supplementary rule-making, or (b) ascertaining facts to bring the law into actual
operation, referred to as contingent rule-making.246 There are two (2) fundamental tests to
ensure that the legislative guidelines for delegated rule-making are indeed adequate. The
first test is called the "completeness test." Case law states that a law is complete when it
sets forth therein the policy to be executed, carried out, or implemented by the delegate. On
the other hand, the second test is called the "sufficient standard test." Jurisprudence holds
that a law lays down a sufficient standard when it provides adequate guidelines or limitations
in the law to map out the boundaries of the delegate‘s authority and prevent the delegation
from running riot.247 To be sufficient, the standard must specify the limits of the delegate‘s
authority, announce the legislative policy, and identify the conditions under which it is to be
implemented.248

In view of the foregoing, the Court agrees with petitioners that the phrase "and for such other
purposes as may be hereafter directed by the President" under Section 8 of PD 910
constitutes an undue delegation of legislative power insofar as it does not lay down a
sufficient standard to adequately determine the limits of the President‘s authority with respect
to the purpose for which the Malampaya Funds may be used. As it reads, the said phrase
gives the President wide latitude to use the Malampaya Funds for any other purpose he may
direct and, in effect, allows him to unilaterally appropriate public funds beyond the purview of
the law. That the subject phrase may be confined only to "energy resource development and
exploitation programs and projects of the government" under the principle of ejusdem
generis, meaning that the general word or phrase is to be construed to include – or be
restricted to – things akin to, resembling, or of the same kind or class as those specifically
mentioned,249 is belied by three (3) reasons: first, the phrase "energy resource development
and exploitation programs and projects of the government" states a singular and general
class and hence, cannot be treated as a statutory reference of specific things from which the
general phrase "for such other purposes" may be limited; second, the said phrase also
exhausts the class it represents, namely energy development programs of the
government;250 and, third, the Executive department has, in fact, used the Malampaya Funds
for non-energy related purposes under the subject phrase, thereby contradicting
respondents‘ own position that it is limited only to "energy resource development and
exploitation programs and projects of the government."251 Thus, while Section 8 of PD 910
may have passed the completeness test since the policy of energy development is clearly
deducible from its text, the phrase "and for such other purposes as may be hereafter directed
by the President" under the same provision of law should nonetheless be stricken down as
unconstitutional as it lies independently unfettered by any sufficient standard of the
delegating law. This notwithstanding, it must be underscored that the rest of Section 8,
insofar as it allows for the use of the Malampaya Funds "to finance energy resource
development and exploitation programs and projects of the government," remains legally
effective and subsisting. Truth be told, the declared unconstitutionality of the aforementioned
phrase is but an assurance that the Malampaya Funds would be used – as it should be used
– only in accordance with the avowed purpose and intention of PD 910.

As for the Presidential Social Fund, the Court takes judicial notice of the fact that Section 12
of PD 1869 has already been amended by PD 1993 which thus moots the parties‘
submissions on the same.252 Nevertheless, since the amendatory provision may be readily
examined under the current parameters of discussion, the Court proceeds to resolve its
constitutionality.

Primarily, Section 12 of PD 1869, as amended by PD 1993, indicates that the Presidential

Social Fund may be used "to first, finance the priority infrastructure development projects
and second, to finance the restoration of damaged or destroyed facilities due to calamities,
as may be directed and authorized by the Office of the President of the Philippines." The
Court finds that while the second indicated purpose adequately curtails the authority of the
President to spend the Presidential Social Fund only for restoration purposes which arise
from calamities, the first indicated purpose, however, gives him carte blanche authority to
use the same fund for any infrastructure project he may so determine as a "priority". Verily,
the law does not supply a definition of "priority in frastructure development projects" and
hence, leaves the President without any guideline to construe the same. To note, the
delimitation of a project as one of "infrastructure" is too broad of a classification since the
said term could pertain to any kind of facility. This may be deduced from its lexicographic
definition as follows: "the underlying framework of a system, especially public services and
facilities (such as highways, schools, bridges, sewers, and water-systems) needed to
support commerce as well as economic and residential development."253 In fine, the phrase
"to finance the priority infrastructure development projects" must be stricken down as
unconstitutional since – similar to the above-assailed provision under Section 8 of PD 910 –
it lies independently unfettered by any sufficient standard of the delegating law. As they are
severable, all other provisions of Section 12 of PD 1869, as amended by PD 1993, remains
legally effective and subsisting.

D. Ancillary Prayers. 1.

Petitioners’ Prayer to be Furnished Lists and Detailed Reports.

Aside from seeking the Court to declare the Pork Barrel System unconstitutional – as the
Court did so in the context of its pronouncements made in this Decision – petitioners equally
pray that the Executive Secretary and/or the DBM be ordered to release to the CoA and to
the public: (a) "the complete schedule/list of legislators who have availed of their PDAF and
VILP from the years 2003 to 2013, specifying the use of the funds, the project or activity and
the recipient entities or individuals, and all pertinent data thereto" (PDAF Use
Schedule/List);254 and (b) "the use of the Executive‘s lump-sum, discretionary funds,
including the proceeds from the x x x Malampaya Funds and remittances from the PAGCOR
x x x from 2003 to 2013, specifying the x x x project or activity and the recipient entities or
individuals, and all pertinent data thereto"255 (Presidential Pork Use Report). Petitioners‘
prayer is grounded on Section 28, Article II and Section 7, Article III of the 1987 Constitution
which read as follows:

ARTICLE II

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public interest.

ARTICLE III Sec. 7.

The right of the people to information on matters of public concern shall be recognized.
Access to official records, and to documents and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as may be provided by
law.

The Court denies petitioners‘ submission.

Case law instructs that the proper remedy to invoke the right to information is to file a petition
for mandamus. As explained in the case of Legaspi v. Civil Service Commission:256

While the manner of examining public records may be subject to reasonable regulation by
the government agency in custody thereof, the duty to disclose the information of public
concern, and to afford access to public records cannot be discretionary on the part of said
agencies. Certainly, its performance cannot be made contingent upon the discretion of such
agencies. Otherwise, the enjoyment of the constitutional right may be rendered nugatory by
any whimsical exercise of agency discretion. The constitutional duty, not being discretionary,
its performance may be compelled by a writ of mandamus in a proper case.

But what is a proper case for Mandamus to issue? In the case before Us, the public right to
be enforced and the concomitant duty of the State are unequivocably set forth in the
Constitution.

The decisive question on the propriety of the issuance of the writ of mandamus in this case
is, whether the information sought by the petitioner is within the ambit of the constitutional
guarantee. (Emphases supplied)

Corollarily, in the case of Valmonte v. Belmonte Jr.257 (Valmonte), it has been clarified that
the right to information does not include the right to compel the preparation of "lists,
abstracts, summaries and the like." In the same case, it was stressed that it is essential that
the "applicant has a well -defined, clear and certain legal right to the thing demanded and
that it is the imperative duty of defendant to perform the act required." Hence, without the
foregoing substantiations, the Court cannot grant a particular request for information. The
pertinent portions of Valmonte are hereunder quoted:258
Although citizens are afforded the right to information and, pursuant thereto, are entitled to
"access to official records," the Constitution does not accord them a right to compel
custodians of official records to prepare lists, abstracts, summaries and the like in their
desire to acquire information on matters of public concern.

It must be stressed that it is essential for a writ of mandamus to issue that the applicant has
a well-defined, clear and certain legal right to the thing demanded and that it is the
imperative duty of defendant to perform the act required. The corresponding duty of the
respondent to perform the required act must be clear and specific Lemi v. Valencia, G.R. No.
L-20768, November 29,1968,126 SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August
27, 1976, 72 SCRA 443.

The request of the petitioners fails to meet this standard, there being no duty on the part of
respondent to prepare the list requested. (Emphases supplied)

In these cases, aside from the fact that none of the petitions are in the nature of mandamus
actions, the Court finds that petitioners have failed to establish a "a well-defined, clear and
certain legal right" to be furnished by the Executive Secretary and/or the DBM of their
requested PDAF Use Schedule/List and Presidential Pork Use Report. Neither did petitioners
assert any law or administrative issuance which would form the bases of the latter‘s duty to
furnish them with the documents requested. While petitioners pray that said information be
equally released to the CoA, it must be pointed out that the CoA has not been impleaded as
a party to these cases nor has it filed any petition before the Court to be allowed access to or
to compel the release of any official document relevant to the conduct of its audit
investigations. While the Court recognizes that the information requested is a matter of
significant public concern, however, if only to ensure that the parameters of disclosure are
properly foisted and so as not to unduly hamper the equally important interests of the
government, it is constrained to deny petitioners‘ prayer on this score, without prejudice to a
proper mandamus case which they, or even the CoA, may choose to pursue through a
separate petition.

It bears clarification that the Court‘s denial herein should only cover petitioners‘ plea to be
furnished with such schedule/list and report and not in any way deny them, or the general
public, access to official documents which are already existing and of public record. Subject
to reasonable regulation and absent any valid statutory prohibition, access to these
documents should not be proscribed. Thus, in Valmonte, while the Court denied the
application for mandamus towards the preparation of the list requested by petitioners therein,
it nonetheless allowed access to the documents sought for by the latter, subject, however, to
the custodian‘s reasonable regulations,viz.:259

In fine, petitioners are entitled to access to the documents evidencing loans granted by the
GSIS, subject to reasonable regulations that the latter may promulgate relating to the
manner and hours of examination, to the end that damage to or loss of the records may be
avoided, that undue interference with the duties of the custodian of the records may be
prevented and that the right of other persons entitled to inspect the records may be insured
Legaspi v. Civil Service Commission, supra at p. 538, quoting Subido v. Ozaeta, 80 Phil.
383, 387. The petition, as to the second and third alternative acts sought to be done by
petitioners, is meritorious.

However, the same cannot be said with regard to the first act sought by petitioners, i.e.,
"to furnish petitioners the list of the names of the Batasang Pambansa members belonging to
the UNIDO and PDP-Laban who were able to secure clean loans immediately before the
February 7 election thru the intercession/marginal note of the then First Lady Imelda
Marcos."

The Court, therefore, applies the same treatment here.

2. Petitioners’ Prayer to Include Matters in Congressional Deliberations.

Petitioners further seek that the Court "order the inclusion in budgetary deliberations with the
Congress of all presently, off-budget, lump sum, discretionary funds including but not limited
to, proceeds from the x x x Malampaya Fund, remittances from the PAGCOR and the PCSO
or the Executive‘s Social Funds."260

Suffice it to state that the above-stated relief sought by petitioners covers a matter which is
generally left to the prerogative of the political branches of government. Hence, lest the Court
itself overreach, it must equally deny their prayer on this score.

3. Respondents’ Prayer to Lift TRO; Consequential Effects of Decision.

The final issue to be resolved stems from the interpretation accorded by the DBM to the
concept of released funds. In response to the Court‘s September 10, 2013 TRO that
enjoined the release of the remaining PDAF allocated for the year 2013, the DBM issued
Circular Letter No. 2013-8 dated September 27, 2013 (DBM Circular 2013-8) which
pertinently reads as follows:

3.0 Nonetheless, PDAF projects funded under the FY 2013 GAA, where a Special Allotment
Release Order (SARO) has been issued by the DBM and such SARO has been obligated by
the implementing agencies prior to the issuance of the TRO, may continually be
implemented and disbursements thereto effected by the agencies concerned.

Based on the text of the foregoing, the DBM authorized the continued implementation and
disbursement of PDAF funds as long as they are: first, covered by a SARO; and, second,
that said SARO had been obligated by the implementing agency concerned prior to the
issuance of the Court‘s September 10, 2013 TRO.

Petitioners take issue with the foregoing circular, arguing that "the issuance of the SARO
does not yet involve the release of funds under the PDAF, as release is only triggered by the
issuance of a Notice of Cash Allocation [(NCA)]."261 As such, PDAF disbursements, even if
covered by an obligated SARO, should remain enjoined.

For their part, respondents espouse that the subject TRO only covers "unreleased and
unobligated allotments." They explain that once a SARO has been issued and obligated by
the implementing agency concerned, the PDAF funds covered by the same are already
"beyond the reach of the TRO because they cannot be considered as ‘remaining PDAF.‘"
They conclude that this is a reasonable interpretation of the TRO by the DBM.262

The Court agrees with petitioners in part.

At the outset, it must be observed that the issue of whether or not the Court‘s September 10,
2013 TRO should be lifted is a matter rendered moot by the present Decision. The
unconstitutionality of the 2013 PDAF Article as declared herein has the consequential effect
of converting the temporary injunction into a permanent one. Hence, from the promulgation
of this Decision, the release of the remaining PDAF funds for 2013, among others, is now
permanently enjoined.

The propriety of the DBM‘s interpretation of the concept of "release" must, nevertheless, be
resolved as it has a practical impact on the execution of the current Decision. In particular,
the Court must resolve the issue of whether or not PDAF funds covered by obligated
SAROs, at the time this Decision is promulgated, may still be disbursed following the DBM‘s
interpretation in DBM Circular 2013-8.

On this score, the Court agrees with petitioners‘ posturing for the fundamental reason that
funds covered by an obligated SARO are yet to be "released" under legal contemplation. A
SARO, as defined by the DBM itself in its website, is "aspecific authority issued to identified
agencies to incur obligations not exceeding a given amount during a specified period for the
purpose indicated. It shall cover expenditures the release of which is subject to compliance
with specific laws or regulations, or is subject to separate approval or clearance by
competent authority."263

Based on this definition, it may be gleaned that a SARO only evinces the existence of an
obligation and not the directive to pay. Practically speaking, the SARO does not have the
direct and immediate effect of placing public funds beyond the control of the disbursing
authority. In fact, a SARO may even be withdrawn under certain circumstances which will
prevent the actual release of funds. On the other hand, the actual release of funds is brought
about by the issuance of the NCA,264 which is subsequent to the issuance of a SARO. As
may be determined from the statements of the DBM representative during the Oral
Arguments:265

Justice Bernabe: Is the notice of allocation issued simultaneously with the SARO?

xxxx

Atty. Ruiz: It comes after. The SARO, Your Honor, is only the go signal for the agencies to
obligate or to enter into commitments. The NCA, Your Honor, is already the go signal to the
treasury for us to be able to pay or to liquidate the amounts obligated in the SARO; so it
comes after. x x x The NCA, Your Honor, is the go signal for the MDS for the authorized
government-disbursing banks to, therefore, pay the payees depending on the projects or
projects covered by the SARO and the NCA.

Justice Bernabe: Are there instances that SAROs are cancelled or revoked?

Atty. Ruiz: Your Honor, I would like to instead submit that there are instances that the
SAROs issued are withdrawn by the DBM.

Justice Bernabe: They are withdrawn?

Atty. Ruiz: Yes, Your Honor x x x. (Emphases and underscoring supplied)

Thus, unless an NCA has been issued, public funds should not be treated as funds which
have been "released." In this respect, therefore, the disbursement of 2013 PDAF funds
which are only covered by obligated SAROs, and without any corresponding NCAs issued,
must, at the time of this Decision’s promulgation, be enjoined and consequently reverted to
the unappropriated surplus of the general fund. Verily, in view of the declared
unconstitutionality of the 2013 PDAF Article, the funds appropriated pursuant thereto cannot
be disbursed even though already obligated, else the Court sanctions the dealing of funds
coming from an unconstitutional source.

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

E. Consequential Effects of Decision.

As a final point, it must be stressed that the Court‘s pronouncement anent the
unconstitutionality of (a) the 2013 PDAF Article and its Special Provisions, (b) all other
Congressional Pork Barrel provisions similar thereto, and (c) the phrases (1) "and for such
other purposes as may be hereafter directed by the President" under Section 8 of PD 910,
and (2) "to finance the priority infrastructure development projects" under Section 12 of PD
1869, as amended by PD 1993, must only be treated as prospective in effect in view of the
operative fact doctrine.

To explain, the operative fact doctrine exhorts the recognition that until the judiciary, in an
appropriate case, declares the invalidity of a certain legislative or executive act, such act is
presumed constitutional and thus, entitled to obedience and respect and should be properly
enforced and complied with. As explained in the recent case of Commissioner of Internal
Revenue v. San Roque Power Corporation,266 the doctrine merely "reflects awareness that
precisely because the judiciary is the governmental organ which has the final say on whether
or not a legislative or executive measure is valid, a period of time may have elapsed before it
can exercise the power of judicial review that may lead to a declaration of nullity. It would be
to deprive the law of its quality of fairness and justice then, if there be no recognition of what
had transpired prior to such adjudication."267 "In the language of an American Supreme Court
decision: ‘The actual existence of a statute, prior to such a determination of
unconstitutionality, is an operative fact and may have consequences which cannot justly be
ignored.‘"268

For these reasons, this Decision should be heretofore applied prospectively.

Conclusion

The Court renders this Decision to rectify an error which has persisted in the chronicles of
our history. In the final analysis, the Court must strike down the Pork Barrel System as
unconstitutional in view of the inherent defects in the rules within which it operates. To
recount, insofar as it has allowed legislators to wield, in varying gradations, non-oversight,
post-enactment authority in vital areas of budget execution, the system has violated the
principle of separation of powers; insofar as it has conferred unto legislators the power of
appropriation by giving them personal, discretionary funds from which they are able to fund
specific projects which they themselves determine, it has similarly violated the principle of
non-delegability of legislative power ; insofar as it has created a system of budgeting wherein
items are not textualized into the appropriations bill, it has flouted the prescribed procedure
of presentment and, in the process, denied the President the power to veto items ; insofar as
it has diluted the effectiveness of congressional oversight by giving legislators a stake in the
affairs of budget execution, an aspect of governance which they may be called to monitor
and scrutinize, the system has equally impaired public accountability ; insofar as it has
authorized legislators, who are national officers, to intervene in affairs of purely local nature,
despite the existence of capable local institutions, it has likewise subverted genuine local
autonomy ; and again, insofar as it has conferred to the President the power to appropriate
funds intended by law for energy-related purposes only to other purposes he may deem fit as
well as other public funds under the broad classification of "priority infrastructure
development projects," it has once more transgressed the principle of non-delegability.

For as long as this nation adheres to the rule of law, any of the multifarious unconstitutional
methods and mechanisms the Court has herein pointed out should never again be adopted
in any system of governance, by any name or form, by any semblance or similarity, by any
influence or effect. Disconcerting as it is to think that a system so constitutionally unsound
has monumentally endured, the Court urges the people and its co-stewards in government to
look forward with the optimism of change and the awareness of the past. At a time of great
civic unrest and vociferous public debate, the Court fervently hopes that its Decision today,
while it may not purge all the wrongs of society nor bring back what has been lost, guides
this nation to the path forged by the Constitution so that no one may heretofore detract from
its cause nor stray from its course. After all, this is the Court‘s bounden duty and no other‘s.

WHEREFORE, the petitions are PARTLY GRANTED. In view of the constitutional violations
discussed in this Decision, the Court hereby declares as UNCONSTITUTIONAL: (a) the
entire 2013 PDAF Article; (b) all legal provisions of past and present Congressional Pork
Barrel Laws, such as the previous PDAF and CDF Articles and the various Congressional
Insertions, which authorize/d legislators – whether individually or collectively organized into
committees – to intervene, assume or participate in any of the various post-enactment
stages of the budget execution, such as but not limited to the areas of project identification,
modification and revision of project identification, fund release and/or fund realignment,
unrelated to the power of congressional oversight; (c) all legal provisions of past and present
Congressional Pork Barrel Laws, such as the previous PDAF and CDF Articles and the
various Congressional Insertions, which confer/red personal, lump-sum allocations to
legislators from which they are able to fund specific projects which they themselves
determine; (d) all informal practices of similar import and effect, which the Court similarly
deems to be acts of grave abuse of discretion amounting to lack or excess of jurisdiction;
and (e) the phrases (1) "and for such other purposes as may be hereafter directed by the
President" under Section 8 of Presidential Decree No. 910 and (2) "to finance the priority
infrastructure development projects" under Section 12 of Presidential Decree No. 1869, as
amended by Presidential Decree No. 1993, for both failing the sufficient standard test in
violation of the principle of non-delegability of legislative power.

Accordingly, the Court‘s temporary injunction dated September 10, 2013 is hereby declared
to be PERMANENT. Thus, the disbursement/release of the remaining PDAF funds allocated
for the year 2013, as well as for all previous years, and the funds sourced from (1) the
Malampaya Funds under the phrase "and for such other purposes as may be hereafter
directed by the President" pursuant to Section 8 of Presidential Decree No. 910, and (2) the
Presidential Social Fund under the phrase "to finance the priority infrastructure development
projects" pursuant to Section 12 of Presidential Decree No. 1869, as amended by
Presidential Decree No. 1993, which are, at the time this Decision is promulgated, not
covered by Notice of Cash Allocations (NCAs) but only by Special Allotment Release Orders
(SAROs), whether obligated or not, are hereby ENJOINED. The remaining PDAF funds
covered by this permanent injunction shall not be disbursed/released but instead reverted to
the unappropriated surplus of the general fund, while the funds under the Malampaya Funds
and the Presidential Social Fund shall remain therein to be utilized for their respective
special purposes not otherwise declared as unconstitutional.

On the other hand, due to improper recourse and lack of proper substantiation, the Court
hereby DENIES petitioners‘ prayer seeking that the Executive Secretary and/or the
Department of Budget and Management be ordered to provide the public and the
Commission on Audit complete lists/schedules or detailed reports related to the availments
and utilization of the funds subject of these cases. Petitioners‘ access to official documents
already available and of public record which are related to these funds must, however, not be
prohibited but merely subjected to the custodian‘s reasonable regulations or any valid
statutory prohibition on the same. This denial is without prejudice to a proper mandamus
case which they or the Commission on Audit may choose to pursue through a separate
petition.

The Court also DENIES petitioners prayer to order the inclusion of the funds subject of these
cases in the budgetary deliberations of Congress as the same is a matter left to the
prerogative of the political branches of government.

Finally, the Court hereby DIRECTS all prosecutorial organs of the government to, within the
bounds of reasonable dispatch, investigate and accordingly prosecute all government
officials and/or private individuals for possible criminal offenses related to the irregular,
improper and/or unlawful disbursement/utilization of all funds under the Pork Barrel System.

This Decision is immediately executory but prospective in effect.

SO ORDERED.

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 Services4 appropriations that would lapse at the end of the year, unreleased
appropriations of slow-moving projects and discontinued projects per zero based budgeting
findings;5 and (2) the withdrawal of unobligated allotments also for slow-moving programs
and projects that had been earlier released to the agencies of the National Government.

The DBM listed the following as the legal bases for the 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 x29
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 quasi-judicial powers acted in a capricious or
whimsical manner as to be equivalent to lack of jurisdiction.31

Although similar to prohibition in that it will lie for want or excess of jurisdiction, certiorari is to
be distinguished from prohibition by the fact that it is a corrective remedy used for the re-
examination of some action of an inferior tribunal, and is directed to the cause or proceeding
in the lower court and not to the court itself, while prohibition is a preventative remedy issuing
to restrain future action, and is directed to the court itself.32 The Court expounded on the
nature and function of the writ of prohibition in Holy Spirit Homeowners Association, Inc. v.
Defensor:33
A petition for prohibition is also not the proper remedy to assail an IRR issued in the exercise
of a quasi-legislative function. Prohibition is an extraordinary writ directed against any
tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or
ministerial functions, ordering said entity or person to desist from further proceedings when
said proceedings are without or in excess of said 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 1. Income Taxes
Government
2. Property Taxes
2. Subsidy from Central Office
3. Taxes on Goods and Services
3. Subsidy from Regional
4. Taxes on International Trade and
Office/Staff Bureaus
Transactions
4. Income from Government
5. Other Taxes 6.Fines and Penalties-Tax Revenue
Services
7. Other Specific Income
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
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
obligations96 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 high-impact 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

Amount
Action
Fund Sources (In million Description
Requested
Php)

FY 2011 30,000 Unreleased Personnel Declare as

Unreleased Services (PS) savings and
Personal appropriations which approve/
Services (PS) will lapse at the end of authorize its use
Appropriations FY 2011 but may be for the 2011
pooled as savings and Disbursement
realigned for priority Acceleration
programs that require Program
immediate funding

FY 2011 482 Unreleased

Unreleased appropriations (slow
Appropriations moving projects and
programs for
discontinuance)

FY 2010 12,336 Supported by the GFI Approve and

Unprogrammed Dividends authorize its use
Fund for the 2011
Disbursement
Acceleration
Program

FY 2010 21,544 Unreleased With prior

Carryover appropriations (slow approval from
Appropriation moving projects and the President in
programs for November 2010
discontinuance) and to declare as
savings from Zero-based Budgeting savings and with
Initiative authority to use
for priority
projects

FY 2011 Budget 7,748 FY 2011 Agency For information

items for Budget items that can
realignment 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

TOTAL 72.110

B. Projects in the Disbursement Acceleration Program

(Descriptions of projects attached as Annex A)

GOCCs and GFIs

Agency/Project Allotment
(SARO and NCA Release) (in Million Php)

1. LRTA: Rehabilitation of LRT 1 and 2 1,868

2. NHA: 11,050

a. Resettlement of North Triangle residents to 450

Camarin A7
b. Housing for BFP/BJMP 500
c. On-site development for families living 10,000
along dangerous
d. Relocation sites for informal settlers 100
along Iloilo River and its tributaries

3. PHIL. HEART CENTER: Upgrading of 357

ageing physical plant and medical equipment

4. CREDIT INFO CORP: Establishment of 75

centralized credit information system

5. PIDS: purchase of land to relocate the PIDS 100

office and building construction

6. HGC: Equity infusion for credit insurance 400

and mortgage guaranty operations of HGC

7. PHIC: Obligations incurred (premium 1,496

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.

8. Philpost: Purchase of foreclosed property. 644

Payment of Mandatory Obligations, (GSIS,
PhilHealth, ECC), Franking Privilege

9. BSP: First equity infusion out of Php 40B 10,000

capitalization under the BSP Law

10. PCMC: Capital and Equipment Renovation 280

11. LCOP: 105

a. Pediatric Pulmonary Program
b. Bio-regenerative Technology Program 35
(Stem-Cell Research – subject to legal
review and presentation) 70

12. TIDCORP: NG Equity infusion 570

TOTAL 26,945

NGAs/LGUs

Agency/Project Allotment
(SARO) Cash
 (In Million Requirement
Php) (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

16. DA: 2,959 2,223

a. Irrigation, FMRs and
Integrated Community Based Multi-Species
Hatchery and Aquasilvi
Farming 1,629 1,629
b. Mindanao Rural
Development Project 919 183

c. NIA Agno River Integrated

Irrigation Project 411 411

17. DAR: 1,293 1,293

a. Agrarian Reform
Communities Project 2 1,293 132
b. Landowners Compensation 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

21. OPAPP: Activities for Peace

Process (PAMANA- Project
details: budget breakdown,
implementation plan, and
conditions on fund release
attached as Annex B) 1,819 1,819

22. DOST 425 425

a. Establishment of National
Meterological and Climate
Center 275 275
b. Enhancement of Doppler
Radar Network for National
Weather Watch, Accurate
Forecasting and Flood Early
Warning 190 190

23. DOF-BOC: To settle the

principal obligations with
PDIC consistent with the
agreement with the CISS and
SGS 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

26. DepEd/ERDT/DOST: Thin

Client Cloud Computing
Project 270 270

27. DOH: Hiring of nurses and

midwives 294 294

28. TESDA: Training Program in

partnership with BPO industry
and other sectors 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

34. Development Assistance to the

Province of Quezon 750 750

TOTAL 45,165 44,000

 C. Summary

Fund Sources
Identified for Allotments Cash
Approval for Release Requirements for
(In Million Release in FY
Php) 2011

Total 72,110 72,110 70,895

GOCCs 26,895 26,895

NGAs/LGUs 45,165 44,000

For His Excellency’s Consideration

(Sgd.) FLORENCIO B. ABAD

[/] APPROVED

[ ] DISAPPROVED

(Sgd.) H.E. BENIGNO S. AQUINO, III

OCT 12, 2011

The memorandum of October 12, 2011 was followed by another memorandum for the
President dated December 12, 2011116 requesting omnibus authority to consolidate the
savings and unutilized balances for fiscal year 2011. Pertinent portions of the memorandum
of December 12, 2011 read:

MEMORANDUM FOR THE PRESIDENT

xxxx

SUBJECT: Omnibus Authority to Consolidate Savings/Unutilized Balances and its

Realignment

DATE: December 12, 2011

This is to respectfully request for the grant of Omnibus Authority to consolidate

savings/unutilized balances in FY 2011 corresponding to completed or discontinued projects
which may be pooled to fund additional projects or expenditures.

In addition, Mr. President, this measure will allow us to undertake projects even if their
implementation carries over to 2012 without necessarily impacting on our budget deficit cap
next year.

BACKGROUND
1.0 The DBM, during the course of performance reviews conducted on the agencies’
operations, particularly on the implementation of their projects/activities, including expenses
incurred in undertaking the same, have identified savings out of the 2011 General
Appropriations Act. Said savings correspond to completed or discontinued projects under
certain departments/agencies which may be pooled, for the following:

1.1 to provide for new activities which have not been anticipated during preparation of the
budget;

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 Business-type
Activities because of the physical impossibility to obligate and spend such funds as MOOE
for a period that already lapsed. Following this observation, MOOE for future months are not
savings and cannot be transferred.

The 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 slower-than-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 PARTICULARS AMOUNT

CODE AUTHORIZED

A.03.a.01.a 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 P 43,504,024
Capital Outlays 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 Maintenance Capital TOTAL

Services and Other Outlays
Operating
Expenditures

III. Operations

a. Funding Assistance 177,406,000 1,887,365,000 49,090,000 2,113,861,000

to Science
and Technology
Activities

1. Central Office 1,554,238,000 1,554,238,000

a. Generation of
new
knowledge and 537,910,000 537,910,000
 technologies
and research
capability
building in
priority areas
identified as
strategic to
National
Development

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 PARTICULARS AMOUNT

CODE AUTHORIZED

Development, integration and coordination of the National Research System for

A.02.a Industry, Energy and Emerging Technology and Related Fields
Capital Outlays 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 e-library 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

AMOUNT
DATE (In thousand pesos)
FFICE PURPOSE
RELEASED Reserve Releases
Imposed

mmission on IT Infrastructure Program and hiring of additional litigation 11/11/11 143,700

dit experts

ngress – Completion of the construction of the Legislative Library 07/23/12 207,034 250,000
use of and Archives Building/Congressional e-library (Savings of HOR)
presentatives

The respondents further stated in their memorandum that the President "made available" to
the "Commission on Elections the savings of his department upon [its] request for
funds…"187 This was another instance of a cross-border augmentation.

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 cross-border transfers? They are transfers of savings as defined in the various
General Appropriations Act. So, that makes it similar to the DAP, the use of savings. There
was a cross-border which appears to be in violation of Section 25, paragraph 5 of Article VI,
in the sense that the border was crossed. But never has it been claimed that the purpose
was to augment a deficient item in another department of the government or agency of the
government. The cross-border transfers, if Your Honors please, were in the nature of [aid]
rather than augmentations. Here is a government entity separate and independent from the
Executive Department solely in need of public funds. The President is there 24 hours a day,
7 days a week. 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 foreign-assisted
projects, the existence of a perfected loan agreement for the purpose shall be sufficient basis
for the issuance of a SARO covering the loan proceeds.

Consequently, that there were additional revenues from sources not considered in the
revenue target would not be enough. The total revenue collections must still exceed the
original revenue targets to justify the release of the unprogrammed funds (other than those
from newly-approved foreign loans).
The present controversy on the unprogrammed funds was rooted in the correct interpretation
of the phrase "revenue collections should exceed the original revenue targets." The
petitioners take the phrase to mean that the total revenue collections must exceed the total
revenue target stated in the BESF, but the respondents understand the phrase to refer only
to the collections for each source of revenue as enumerated in the BESF, with the condition
being deemed complied with once the revenue collections from a particular source already
exceeded the stated target.

The BESF provided for the following sources of revenue, with 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.

G.R. No. 166715 August 14, 2008

ABAKADA GURO PARTY LIST (formerly AASJS)1 OFFICERS/MEMBERS SAMSON S.

ALCANTARA, ED VINCENT S. ALBANO, ROMEO R. ROBISO, RENE B. GOROSPE and
EDWIN R. SANDOVAL, petitioners,
vs.
HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance, HON. GUILLERMO
L. PARAYNO, JR., in his capacity as Commissioner of the Bureau of Internal Revenue,
and HON. ALBERTO D. LINA, in his Capacity as Commissioner of Bureau of
Customs, respondents.

DECISION

CORONA, J.:

This petition for prohibition1 seeks to prevent respondents from implementing and enforcing
Republic Act (RA) 93352 (Attrition Act of 2005).

RA 9335 was enacted to optimize the revenue-generation capability and collection of the
Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC). The law intends to
encourage BIR and BOC officials and employees to exceed their revenue targets by
providing a system of rewards and sanctions through the creation of a Rewards and
Incentives Fund (Fund) and a Revenue Performance Evaluation Board (Board).3 It covers all
officials and employees of the BIR and the BOC with at least six months of service,
regardless of employment status.4

The Fund is sourced from the collection of the BIR and the BOC in excess of their revenue
targets for the year, as determined by the Development Budget and Coordinating Committee
(DBCC). Any incentive or reward is taken from the fund and allocated to the BIR and the
BOC in proportion to their contribution in the excess collection of the targeted amount of tax
revenue.5

The Boards in the BIR and the BOC are composed of the Secretary of the Department of
Finance (DOF) or his/her Undersecretary, the Secretary of the Department of Budget and
Management (DBM) or his/her Undersecretary, the Director General of the National
Economic Development Authority (NEDA) or his/her Deputy Director General, the
Commissioners of the BIR and the BOC or their Deputy Commissioners, two representatives
from the rank-and-file employees and a representative from the officials nominated by their
recognized organization.6
Each Board has the duty to (1) prescribe the rules and guidelines for the allocation,
distribution and release of the Fund; (2) set criteria and procedures for removing from the
service officials and employees whose revenue collection falls short of the target; (3)
terminate personnel in accordance with the criteria adopted by the Board; (4) prescribe a
system for performance evaluation; (5) perform other functions, including the issuance of
rules and regulations and (6) submit an annual report to Congress.7

The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were tasked to
promulgate and issue the implementing rules and regulations of RA 9335,8 to be approved
by a Joint Congressional Oversight Committee created for such purpose.9

Petitioners, invoking their right as taxpayers filed this petition challenging the constitutionality
of RA 9335, a tax reform legislation. They contend that, by establishing a system of rewards
and incentives, the law "transform[s] the officials and employees of the BIR and the BOC into
mercenaries and bounty hunters" as they will do their best only in consideration of such
rewards. Thus, the system of rewards and incentives invites corruption and undermines the
constitutionally mandated duty of these officials and employees to serve the people with
utmost responsibility, integrity, loyalty and efficiency.

Petitioners also claim that limiting the scope of the system of rewards and incentives only to
officials and employees of the BIR and the BOC violates the constitutional guarantee of
equal protection. There is no valid basis for classification or distinction as to why such a
system should not apply to officials and employees of all other government agencies.

In addition, petitioners assert that the law unduly delegates the power to fix revenue targets
to the President as it lacks a sufficient standard on that matter. While Section 7(b) and (c) of
RA 9335 provides that BIR and BOC officials may be dismissed from the service if their
revenue collections fall short of the target by at least 7.5%, the law does not, however, fix the
revenue targets to be achieved. Instead, the fixing of revenue targets has been delegated to
the President without sufficient standards. It will therefore be easy for the President to fix an
unrealistic and unattainable target in order to dismiss BIR or BOC personnel.

Finally, petitioners assail the creation of a congressional oversight committee on the ground
that it violates the doctrine of separation of powers. While the legislative function is deemed
accomplished and completed upon the enactment and approval of the law, the creation of
the congressional oversight committee permits legislative participation in the implementation
and enforcement of the law.

In their comment, respondents, through the Office of the Solicitor General, question the
petition for being premature as there is no actual case or controversy yet. Petitioners have
not asserted any right or claim that will necessitate the exercise of this Court’s jurisdiction.
Nevertheless, respondents acknowledge that public policy requires the resolution of the
constitutional issues involved in this case. They assert that the allegation that the reward
system will breed mercenaries is mere speculation and does not suffice to invalidate the law.
Seen in conjunction with the declared objective of RA 9335, the law validly classifies the BIR
and the BOC because the functions they perform are distinct from those of the other
government agencies and instrumentalities. Moreover, the law provides a sufficient standard
that will guide the executive in the implementation of its provisions. Lastly, the creation of the
congressional oversight committee under the law enhances, rather than violates, separation
of powers. It ensures the fulfillment of the legislative policy and serves as a check to any
over-accumulation of power on the part of the executive and the implementing agencies.
After a careful consideration of the conflicting contentions of the parties, the Court finds that
petitioners have failed to overcome the presumption of constitutionality in favor of RA 9335,
except as shall hereafter be discussed.

Actual Case And Ripeness

An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal
claims susceptible of judicial adjudication.10 A closely related requirement is ripeness, that is,
the question must be ripe for adjudication. And a constitutional question is ripe for
adjudication when the governmental act being challenged has a direct adverse effect on the
individual challenging it.11Thus, to be ripe for judicial adjudication, the petitioner must show a
personal stake in the outcome of the case or an injury to himself that can be redressed by a
favorable decision of the Court.12

In this case, aside from the general claim that the dispute has ripened into a judicial
controversy by the mere enactment of the law even without any further overt
act,13 petitioners fail either to assert any specific and concrete legal claim or to demonstrate
any direct adverse effect of the law on them. They are unable to show a personal stake in
the outcome of this case or an injury to themselves. On this account, their petition is
procedurally infirm.

This notwithstanding, public interest requires the resolution of the constitutional issues raised
by petitioners. The grave nature of their allegations tends to cast a cloud on the presumption
of constitutionality in favor of the law. And where an action of the legislative branch is alleged
to have infringed the Constitution, it becomes not only the right but in fact the duty of the
judiciary to settle the dispute.14

Accountability of
Public Officers

Section 1, Article 11 of the Constitution states:

Sec. 1. Public office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism, and justice, and lead modest lives.

Public office is a public trust. It must be discharged by its holder not for his own personal
gain but for the benefit of the public for whom he holds it in trust. By demanding
accountability and service with responsibility, integrity, loyalty, efficiency, patriotism and
justice, all government officials and employees have the duty to be responsive to the needs
of the people they are called upon to serve.

Public officers enjoy the presumption of regularity in the performance of their duties. This
presumption necessarily obtains in favor of BIR and BOC officials and employees. RA 9335
operates on the basis thereof and reinforces it by providing a system of rewards and
sanctions for the purpose of encouraging the officials and employees of the BIR and the
BOC to exceed their revenue targets and optimize their revenue-generation capability and
collection.15

The presumption is disputable but proof to the contrary is required to rebut it. It cannot be
overturned by mere conjecture or denied in advance (as petitioners would have the Court do)
specially in this case where it is an underlying principle to advance a declared public policy.
Petitioners’ claim that the implementation of RA 9335 will turn BIR and BOC officials and
employees into "bounty hunters and mercenaries" is not only without any factual and legal
basis; it is also purely speculative.

A law enacted by Congress enjoys the strong presumption of constitutionality. To justify its
nullification, there must be a clear and unequivocal breach of the Constitution, not a doubtful
and equivocal one.16 To invalidate RA 9335 based on petitioners’ baseless supposition is an
affront to the wisdom not only of the legislature that passed it but also of the executive which
approved it.

Public service is its own reward. Nevertheless, public officers may by law be rewarded for
exemplary and exceptional performance. A system of incentives for exceeding the set
expectations of a public office is not anathema to the concept of public accountability. In fact,
it recognizes and reinforces dedication to duty, industry, efficiency and loyalty to public
service of deserving government personnel.

In United States v. Matthews,17 the U.S. Supreme Court validated a law which awards to
officers of the customs as well as other parties an amount not exceeding one-half of the net
proceeds of forfeitures in violation of the laws against smuggling. Citing Dorsheimer v. United
States,18 the U.S. Supreme Court said:

The offer of a portion of such penalties to the collectors is to stimulate and reward their zeal
and industry in detecting fraudulent attempts to evade payment of duties and taxes.

In the same vein, employees of the BIR and the BOC may by law be entitled to a reward
when, as a consequence of their zeal in the enforcement of tax and customs laws, they
exceed their revenue targets. In addition, RA 9335 establishes safeguards to ensure that the
reward will not be claimed if it will be either the fruit of "bounty hunting or mercenary activity"
or the product of the irregular performance of official duties. One of these precautionary
measures is embodied in Section 8 of the law:

SEC. 8. Liability of Officials, Examiners and Employees of the BIR and the BOC. – The
officials, examiners, and employees of the [BIR] and the [BOC] who violate this Act or who
are guilty of negligence, abuses or acts of malfeasance or misfeasance or fail to exercise
extraordinary diligence in the performance of their duties shall be held liable for any loss or
injury suffered by any business establishment or taxpayer as a result of such violation,
negligence, abuse, malfeasance, misfeasance or failure to exercise extraordinary diligence.

Equal Protection

Equality guaranteed under the equal protection clause is equality under the same conditions
and among persons similarly situated; it is equality among equals, not similarity of treatment
of persons who are classified based on substantial differences in relation to the object to be
accomplished.19When things or persons are different in fact or circumstance, they may be
treated in law differently. In Victoriano v. Elizalde Rope Workers’ Union,20 this Court
declared:

The guaranty of equal protection of the laws is not a guaranty of equality in the application of
the laws upon all citizens of the [S]tate. It is not, therefore, a requirement, in order to avoid
the constitutional prohibition against inequality, that every man, woman and child should be
affected alike by a statute. Equality of operation of statutes does not mean indiscriminate
operation on persons merely as such, but on persons according to the circumstances
surrounding them. It guarantees equality, not identity of rights. The Constitution does not
require that things which are different in fact be treated in law as though they were the
same. The equal protection clause does not forbid discrimination as to things that are
different. It does not prohibit legislation which is limited either in the object to which it
is directed or by the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification. Classification
in law, as in the other departments of knowledge or practice, is the grouping of things in
speculation or practice because they agree with one another in certain particulars. A law is
not invalid because of simple inequality. The very idea of classification is that of inequality,
so that it goes without saying that the mere fact of inequality in no manner determines the
matter of constitutionality. All that is required of a valid classification is that it be
reasonable, which means that the classification should be based on substantial
distinctions which make for real differences, that it must be germane to the purpose of
the law; that it must not be limited to existing conditions only; and that it must apply
equally to each member of the class. This Court has held that the standard is satisfied if
the classification or distinction is based on a reasonable foundation or rational basis
and is not palpably arbitrary.

In the exercise of its power to make classifications for the purpose of enacting laws over
matters within its jurisdiction, the state is recognized as enjoying a wide range of discretion. It
is not necessary that the classification be based on scientific or marked differences of things
or in their relation. Neither is it necessary that the classification be made with mathematical
nicety. Hence, legislative classification may in many cases properly rest on narrow
distinctions, for the equal protection guaranty does not preclude the legislature from
recognizing degrees of evil or harm, and legislation is addressed to evils as they may
appear.21 (emphasis supplied)

The equal protection clause recognizes a valid classification, that is, a classification that has
a reasonable foundation or rational basis and not arbitrary.22 With respect to RA 9335, its
expressed public policy is the optimization of the revenue-generation capability and
collection of the BIR and the BOC.23 Since the subject of the law is the revenue- generation
capability and collection of the BIR and the BOC, the incentives and/or sanctions provided in
the law should logically pertain to the said agencies. Moreover, the law concerns only the
BIR and the BOC because they have the common distinct primary function of generating
revenues for the national government through the collection of taxes, customs duties, fees
and charges.

The BIR performs the following functions:

Sec. 18. The Bureau of Internal Revenue. – The Bureau of Internal Revenue, which shall be
headed by and subject to the supervision and control of the Commissioner of Internal
Revenue, who shall be appointed by the President upon the recommendation of the
Secretary [of the DOF], shall have the following functions:

(1) Assess and collect all taxes, fees and charges and account for all revenues
collected;

(2) Exercise duly delegated police powers for the proper performance of its functions and
duties;

(3) Prevent and prosecute tax evasions and all other illegal economic activities;
(4) Exercise supervision and control over its constituent and subordinate units; and

(5) Perform such other functions as may be provided by law.24

xxx xxx xxx (emphasis supplied)

On the other hand, the BOC has the following functions:

Sec. 23. The Bureau of Customs. – The Bureau of Customs which shall be headed and
subject to the management and control of the Commissioner of Customs, who shall be
appointed by the President upon the recommendation of the Secretary[of the DOF] and
hereinafter referred to as Commissioner, shall have the following functions:

(1) Collect custom duties, taxes and the corresponding fees, charges and penalties;

(2) Account for all customs revenues collected;

(3) Exercise police authority for the enforcement of tariff and customs laws;

(4) Prevent and suppress smuggling, pilferage and all other economic frauds within all ports
of entry;

(5) Supervise and control exports, imports, foreign mails and the clearance of vessels and
aircrafts in all ports of entry;

(6) Administer all legal requirements that are appropriate;

(7) Prevent and prosecute smuggling and other illegal activities in all ports under its
jurisdiction;

(8) Exercise supervision and control over its constituent units;

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

xxx xxx xxx (emphasis supplied)

Both the BIR and the BOC are bureaus under the DOF. They principally perform the special
function of being the instrumentalities through which the State exercises one of its great
inherent functions – taxation. Indubitably, such substantial distinction is germane and
intimately related to the purpose of the law. Hence, the classification and treatment accorded
to the BIR and the BOC under RA 9335 fully satisfy the demands of equal protection.

Undue Delegation

Two tests determine the validity of delegation of legislative power: (1) the completeness test
and (2) the sufficient standard test. A law is complete when it sets forth therein the policy to
be executed, carried out or implemented by the delegate.26 It lays down a sufficient standard
when it provides adequate guidelines or limitations in the law to map out the boundaries of
the delegate’s authority and prevent the delegation from running riot.27 To be sufficient, the
standard must specify the limits of the delegate’s authority, announce the legislative policy
and identify the conditions under which it is to be implemented.28

RA 9335 adequately states the policy and standards to guide the President in fixing revenue
targets and the implementing agencies in carrying out the provisions of the law. Section 2
spells out the policy of the law:

SEC. 2. Declaration of Policy. – It is the policy of the State to optimize the revenue-
generation capability and collection of the Bureau of Internal Revenue (BIR) and the Bureau
of Customs (BOC) by providing for a system of rewards and sanctions through the creation
of a Rewards and Incentives Fund and a Revenue Performance Evaluation Board in the
above agencies for the purpose of encouraging their officials and employees to exceed their
revenue targets.

Section 4 "canalized within banks that keep it from overflowing"29 the delegated power to the
President to fix revenue targets:

SEC. 4. Rewards and Incentives Fund. – A Rewards and Incentives Fund, hereinafter
referred to as the Fund, is hereby created, to be sourced from the collection of the BIR and
the BOC in excess of their respective revenue targets of the year, as determined by the
Development Budget and Coordinating Committee (DBCC), in the following percentages:

Excess of Collection of the Excess the Percent (%) of the Excess Collection to Accrue to the
Revenue Targets
30% or below – 15%
More than 30% – 15% of the first 30% plus 20% of the remaining exce

The Fund shall be deemed automatically appropriated the year immediately following the
year when the revenue collection target was exceeded and shall be released on the same
fiscal year.

Revenue targets shall refer to the original estimated revenue collection expected of
the BIR and the BOC for a given fiscal year as stated in the Budget of Expenditures
and Sources of Financing (BESF) submitted by the President to Congress. The BIR
and the BOC shall submit to the DBCC the distribution of the agencies’ revenue targets as
allocated among its revenue districts in the case of the BIR, and the collection districts in the
case of the BOC.

xxx xxx xxx (emphasis supplied)

Revenue targets are based on the original estimated revenue collection expected
respectively of the BIR and the BOC for a given fiscal year as approved by the DBCC and
stated in the BESF submitted by the President to Congress.30 Thus, the determination of
revenue targets does not rest solely on the President as it also undergoes the scrutiny of the
DBCC.

On the other hand, Section 7 specifies the limits of the Board’s authority and identifies the
conditions under which officials and employees whose revenue collection falls short of the
target by at least 7.5% may be removed from the service:
SEC. 7. Powers and Functions of the Board. – The Board in the agency shall have the
following powers and functions:

xxx xxx xxx

(b) To set the criteria and procedures for removing from service officials and employees
whose revenue collection falls short of the target by at least seven and a half percent
(7.5%), with due consideration of all relevant factors affecting the level of collection as
provided in the rules and regulations promulgated under this Act, subject to civil service
laws, rules and regulations and compliance with substantive and procedural due
process: Provided, That the following exemptions shall apply:

1. Where the district or area of responsibility is newly-created, not exceeding two years in
operation, as has no historical record of collection performance that can be used as basis for
evaluation; and

2. Where the revenue or customs official or employee is a recent transferee in the middle of
the period under consideration unless the transfer was due to nonperformance of revenue
targets or potential nonperformance of revenue targets: Provided, however, That when the
district or area of responsibility covered by revenue or customs officials or employees has
suffered from economic difficulties brought about by natural calamities or force majeure or
economic causes as may be determined by the Board, termination shall be considered only
after careful and proper review by the Board.

(c) To terminate personnel in accordance with the criteria adopted in the preceding
paragraph: Provided, That such decision shall be immediately executory: Provided, further,
That the application of the criteria for the separation of an official or employee from
service under this Act shall be without prejudice to the application of other relevant
laws on accountability of public officers and employees, such as the Code of Conduct
and Ethical Standards of Public Officers and Employees and the Anti-Graft and
Corrupt Practices Act;

xxx xxx xxx (emphasis supplied)

Clearly, RA 9335 in no way violates the security of tenure of officials and employees of the
BIR and the BOC. The guarantee of security of tenure only means that an employee cannot
be dismissed from the service for causes other than those provided by law and only after due
process is accorded the employee.31 In the case of RA 9335, it lays down a reasonable
yardstick for removal (when the revenue collection falls short of the target by at least 7.5%)
with due consideration of all relevant factors affecting the level of collection. This standard is
analogous to inefficiency and incompetence in the performance of official duties, a ground for
disciplinary action under civil service laws.32 The action for removal is also subject to civil
service laws, rules and regulations and compliance with substantive and procedural due
process.

At any rate, this Court has recognized the following as sufficient standards: "public interest,"
"justice and equity," "public convenience and welfare" and "simplicity, economy and
welfare."33 In this case, the declared policy of optimization of the revenue-generation
capability and collection of the BIR and the BOC is infused with public interest.

Separation Of Powers
Section 12 of RA 9335 provides:

SEC. 12. Joint Congressional Oversight Committee. – There is hereby created a Joint
Congressional Oversight Committee composed of seven Members from the Senate and
seven Members from the House of Representatives. The Members from the Senate shall be
appointed by the Senate President, with at least two senators representing the minority. The
Members from the House of Representatives shall be appointed by the Speaker with at least
two members representing the minority. After the Oversight Committee will have approved
the implementing rules and regulations (IRR) it shall thereafter become functus officio and
therefore cease to exist.

The Joint Congressional Oversight Committee in RA 9335 was created for the purpose of
approving the implementing rules and regulations (IRR) formulated by the DOF, DBM,
NEDA, BIR, BOC and CSC. On May 22, 2006, it approved the said IRR. From then on, it
became functus officio and ceased to exist. Hence, the issue of its alleged encroachment on
the executive function of implementing and enforcing the law may be considered moot and
academic.

This notwithstanding, this might be as good a time as any for the Court to confront the issue
of the constitutionality of the Joint Congressional Oversight Committee created under RA
9335 (or other similar laws for that matter).

The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the concept of
congressional oversight in Macalintal v. Commission on Elections34 is illuminating:

Concept and bases of congressional oversight

Broadly defined, the power of oversight embraces all activities undertaken by Congress
to enhance its understanding of and influence over the implementation of legislation it
has enacted. Clearly, oversight concerns post-enactment measures undertaken by
Congress: (a) to monitor bureaucratic compliance with program objectives, (b) to
determine whether agencies are properly administered, (c) to eliminate executive
waste and dishonesty, (d) to prevent executive usurpation of legislative authority, and
(d) to assess executive conformity with the congressional perception of public
interest.

The power of oversight has been held to be intrinsic in the grant of legislative power itself
and integral to the checks and balances inherent in a democratic system of government. x x
xxxxxxx

Over the years, Congress has invoked its oversight power with increased frequency to check
the perceived "exponential accumulation of power" by the executive branch. By the
beginning of the 20th century, Congress has delegated an enormous amount of legislative
authority to the executive branch and the administrative agencies. Congress, thus, uses its
oversight power to make sure that the administrative agencies perform their functions within
the authority delegated to them. x x x x x x x x x

Categories of congressional oversight functions

The acts done by Congress purportedly in the exercise of its oversight powers may be
divided into three categories, namely: scrutiny, investigation and supervision.
a. Scrutiny

Congressional scrutiny implies a lesser intensity and continuity of attention to administrative

operations. Its primary purpose is to determine economy and efficiency of the operation of
government activities. In the exercise of legislative scrutiny, Congress may request
information and report from the other branches of government. It can give recommendations
or pass resolutions for consideration of the agency involved.

xxx xxx xxx

b. Congressional investigation

While congressional scrutiny is regarded as a passive process of looking at the facts that are
readily available, congressional investigation involves a more intense digging of facts. The
power of Congress to conduct investigation is recognized by the 1987 Constitution under
section 21, Article VI, xxx xxx xxx

c. Legislative supervision

The third and most encompassing form by which Congress exercises its oversight power is
thru legislative supervision. "Supervision" connotes a continuing and informed awareness on
the part of a congressional committee regarding executive operations in a given
administrative area. While both congressional scrutiny and investigation involve inquiry
into past executive branch actions in order to influence future executive branch
performance, congressional supervision allows Congress to scrutinize the exercise of
delegated law-making authority, and permits Congress to retain part of that delegated
authority.

Congress exercises supervision over the executive agencies through its veto power. It
typically utilizes veto provisions when granting the President or an executive agency the
power to promulgate regulations with the force of law. These provisions require the President
or an agency to present the proposed regulations to Congress, which retains a "right" to
approve or disapprove any regulation before it takes effect. Such legislative veto provisions
usually provide that a proposed regulation will become a law after the expiration of a certain
period of time, only if Congress does not affirmatively disapprove of the regulation in the
meantime. Less frequently, the statute provides that a proposed regulation will become law if
Congress affirmatively approves it.

Supporters of legislative veto stress that it is necessary to maintain the balance of power
between the legislative and the executive branches of government as it offers lawmakers a
way to delegate vast power to the executive branch or to independent agencies while
retaining the option to cancel particular exercise of such power without having to pass new
legislation or to repeal existing law. They contend that this arrangement promotes
democratic accountability as it provides legislative check on the activities of unelected
administrative agencies. One proponent thus explains:

It is too late to debate the merits of this delegation policy: the policy is too deeply embedded
in our law and practice. It suffices to say that the complexities of modern government have
often led Congress-whether by actual or perceived necessity- to legislate by declaring broad
policy goals and general statutory standards, leaving the choice of policy options to the
discretion of an executive officer. Congress articulates legislative aims, but leaves their
implementation to the judgment of parties who may or may not have participated in or agreed
with the development of those aims. Consequently, absent safeguards, in many instances
the reverse of our constitutional scheme could be effected: Congress proposes, the
Executive disposes. One safeguard, of course, is the legislative power to enact new
legislation or to change existing law. But without some means of overseeing post enactment
activities of the executive branch, Congress would be unable to determine whether its
policies have been implemented in accordance with legislative intent and thus whether
legislative intervention is appropriate.

Its opponents, however, criticize the legislative veto as undue encroachment upon the
executive prerogatives. They urge that any post-enactment measures undertaken by
the legislative branch should be limited to scrutiny and investigation; any measure
beyond that would undermine the separation of powers guaranteed by the
Constitution. They contend that legislative veto constitutes an impermissible evasion of the
President’s veto authority and intrusion into the powers vested in the executive or judicial
branches of government. Proponents counter that legislative veto enhances separation of
powers as it prevents the executive branch and independent agencies from accumulating too
much power. They submit that reporting requirements and congressional committee
investigations allow Congress to scrutinize only the exercise of delegated law-making
authority. They do not allow Congress to review executive proposals before they take effect
and they do not afford the opportunity for ongoing and binding expressions of congressional
intent. In contrast, legislative veto permits Congress to participate prospectively in the
approval or disapproval of "subordinate law" or those enacted by the executive branch
pursuant to a delegation of authority by Congress. They further argue that legislative veto "is
a necessary response by Congress to the accretion of policy control by forces outside its
chambers." In an era of delegated authority, they point out that legislative veto "is the most
efficient means Congress has yet devised to retain control over the evolution and
implementation of its policy as declared by statute."

In Immigration and Naturalization Service v. Chadha, the U.S. Supreme Court resolved the
validity of legislative veto provisions. The case arose from the order of the immigration
judge suspending the deportation of Chadha pursuant to § 244(c)(1) of the Immigration and
Nationality Act. The United States House of Representatives passed a resolution vetoing the
suspension pursuant to § 244(c)(2) authorizing either House of Congress, by resolution, to
invalidate the decision of the executive branch to allow a particular deportable alien to
remain in the United States. The immigration judge reopened the deportation proceedings to
implement the House order and the alien was ordered deported. The Board of Immigration
Appeals dismissed the alien’s appeal, holding that it had no power to declare unconstitutional
an act of Congress. The United States Court of Appeals for Ninth Circuit held that the House
was without constitutional authority to order the alien’s deportation and that § 244(c)(2)
violated the constitutional doctrine on separation of powers.

On appeal, the U.S. Supreme Court declared § 244(c)(2) unconstitutional. But the Court
shied away from the issue of separation of powers and instead held that the provision
violates the presentment clause and bicameralism. It held that the one-house veto was
essentially legislative in purpose and effect. As such, it is subject to the procedures set out in
Article I of the Constitution requiring the passage by a majority of both Houses and
presentment to the President. x x x x x x x x x

Two weeks after the Chadha decision, the Court upheld, in memorandum decision, two lower
court decisions invalidating the legislative veto provisions in the Natural Gas Policy Act of
1978 and the Federal Trade Commission Improvement Act of 1980. Following this
precedence, lower courts invalidated statutes containing legislative veto provisions although
some of these provisions required the approval of both Houses of Congress and thus met
the bicameralism requirement of Article I. Indeed, some of these veto provisions were not
even exercised.35(emphasis supplied)

In Macalintal, given the concept and configuration of the power of congressional oversight
and considering the nature and powers of a constitutional body like the Commission on
Elections, the Court struck down the provision in RA 9189 (The Overseas Absentee Voting
Act of 2003) creating a Joint Congressional Committee. The committee was tasked not only
to monitor and evaluate the implementation of the said law but also to review, revise, amend
and approve the IRR promulgated by the Commission on Elections. The Court held that
these functions infringed on the constitutional independence of the Commission on
Elections.36

With this backdrop, it is clear that congressional oversight is not unconstitutional per se,
meaning, it neither necessarily constitutes an encroachment on the executive power to
implement laws nor undermines the constitutional separation of powers. Rather, it is integral
to the checks and balances inherent in a democratic system of government. It may in fact
even enhance the separation of powers as it prevents the over-accumulation of power in the
executive branch.

However, to forestall the danger of congressional encroachment "beyond the legislative

sphere," the Constitution imposes two basic and related constraints on Congress.37 It may
not vest itself, any of its committees or its members with either executive or judicial
power.38 And, when it exercises its legislative power, it must follow the "single, finely wrought
and exhaustively considered, procedures" specified under the Constitution,39 including the
procedure for enactment of laws and presentment.

Thus, any post-enactment congressional measure such as this should be limited to scrutiny
and investigation. In particular, congressional oversight must be confined to the following:

(1) scrutiny based primarily on Congress’ power of appropriation and the budget hearings
conducted in connection with it, its power to ask heads of departments to appear before and
be heard by either of its Houses on any matter pertaining to their departments and its power
of confirmation40 and

(2) investigation and monitoring41 of the implementation of laws pursuant to the power of
Congress to conduct inquiries in aid of legislation.42

Any action or step beyond that will undermine the separation of powers guaranteed by the
Constitution. Legislative vetoes fall in this class.

Legislative veto is a statutory provision requiring the President or an administrative agency to

present the proposed implementing rules and regulations of a law to Congress which, by
itself or through a committee formed by it, retains a "right" or "power" to approve or
disapprove such regulations before they take effect. As such, a legislative veto in the form of
a congressional oversight committee is in the form of an inward-turning delegation designed
to attach a congressional leash (other than through scrutiny and investigation) to an agency
to which Congress has by law initially delegated broad powers.43 It radically changes the
design or structure of the Constitution’s diagram of power as it entrusts to Congress a direct
role in enforcing, applying or implementing its own laws.44

Congress has two options when enacting legislation to define national policy within the broad
horizons of its legislative competence.45 It can itself formulate the details or it can assign to
the executive branch the responsibility for making necessary managerial decisions in
conformity with those standards.46 In the latter case, the law must be complete in all its
essential terms and conditions when it leaves the hands of the legislature.47 Thus, what is
left for the executive branch or the concerned administrative agency when it formulates rules
and regulations implementing the law is to fill up details (supplementary rule-making) or
ascertain facts necessary to bring the law into actual operation (contingent rule-making).48

Administrative regulations enacted by administrative agencies to implement and interpret the

law which they are entrusted to enforce have the force of law and are entitled to
respect.49 Such rules and regulations partake of the nature of a statute50 and are just as
binding as if they have been written in the statute itself. As such, they have the force and
effect of law and enjoy the presumption of constitutionality and legality until they are set
aside with finality in an appropriate case by a competent court.51 Congress, in the guise of
assuming the role of an overseer, may not pass upon their legality by subjecting them to its
stamp of approval without disturbing the calculated balance of powers established by the
Constitution. In exercising discretion to approve or disapprove the IRR based on a
determination of whether or not they conformed with the provisions of RA 9335, Congress
arrogated judicial power unto itself, a power exclusively vested in this Court by the
Constitution.

Considered Opinion of
Mr. Justice Dante O. Tinga

Moreover, the requirement that the implementing rules of a law be subjected to approval by
Congress as a condition for their effectivity violates the cardinal constitutional principles of
bicameralism and the rule on presentment.52

Section 1, Article VI of the Constitution states:

Section 1. The legislative power shall be vested in the Congress of the Philippines
which shall consist of a Senate and a House of Representatives, except to the extent
reserved to the people by the provision on initiative and referendum. (emphasis supplied)

Legislative power (or the power to propose, enact, amend and repeal laws)53 is vested in
Congress which consists of two chambers, the Senate and the House of Representatives. A
valid exercise of legislative power requires the act of both chambers. Corrollarily, it can be
exercised neither solely by one of the two chambers nor by a committee of either or both
chambers. Thus, assuming the validity of a legislative veto, both a single-chamber legislative
veto and a congressional committee legislative veto are invalid.

Additionally, Section 27(1), Article VI of the Constitution provides:

Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be
presented to the President. If he approves the same, he shall sign it, otherwise, he shall
veto it and return the same with his objections to the House where it originated, which shall
enter the objections at large in its Journal and proceed to reconsider it. If, after such
reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it
shall be sent, together with the objections, to the other House by which it shall likewise be
reconsidered, and if approved by two-thirds of all the Members of that House, it shall become
a law. In all such cases, the votes of each House shall be determined by yeas or nays, and
the names of the members voting for or against shall be entered in its Journal. The President
shall communicate his veto of any bill to the House where it originated within thirty days after
the date of receipt thereof; otherwise, it shall become a law as if he had signed it. (emphasis
supplied)

Every bill passed by Congress must be presented to the President for approval or veto. In
the absence of presentment to the President, no bill passed by Congress can become a law.
In this sense, law-making under the Constitution is a joint act of the Legislature and of the
Executive. Assuming that legislative veto is a valid legislative act with the force of law, it
cannot take effect without such presentment even if approved by both chambers of
Congress.

In sum, two steps are required before a bill becomes a law. First, it must be approved by
both Houses of Congress.54 Second, it must be presented to and approved by the
President.55 As summarized by Justice Isagani Cruz56 and Fr. Joaquin G. Bernas, S.J.57, the
following is the procedure for the approval of bills:

A bill is introduced by any member of the House of Representatives or the Senate except for
some measures that must originate only in the former chamber.

The first reading involves only a reading of the number and title of the measure and its
referral by the Senate President or the Speaker to the proper committee for study.

The bill may be "killed" in the committee or it may be recommended for approval, with or
without amendments, sometimes after public hearings are first held thereon. If there are
other bills of the same nature or purpose, they may all be consolidated into one bill under
common authorship or as a committee bill.

Once reported out, the bill shall be calendared for second reading. It is at this stage that the
bill is read in its entirety, scrutinized, debated upon and amended when desired. The second
reading is the most important stage in the passage of a bill.

The bill as approved on second reading is printed in its final form and copies thereof are
distributed at least three days before the third reading. On the third reading, the members
merely register their votes and explain them if they are allowed by the rules. No further
debate is allowed.

Once the bill passes third reading, it is sent to the other chamber, where it will also undergo
the three readings. If there are differences between the versions approved by the two
chambers, a conference committee58 representing both Houses will draft a compromise
measure that if ratified by the Senate and the House of Representatives will then be
submitted to the President for his consideration.

The bill is enrolled when printed as finally approved by the Congress, thereafter
authenticated with the signatures of the Senate President, the Speaker, and the Secretaries
of their respective chambers…59

The President’s role in law-making.

The final step is submission to the President for approval. Once approved, it takes effect as
law after the required publication.60
Where Congress delegates the formulation of rules to implement the law it has enacted
pursuant to sufficient standards established in the said law, the law must be complete in all
its essential terms and conditions when it leaves the hands of the legislature. And it may be
deemed to have left the hands of the legislature when it becomes effective because it is only
upon effectivity of the statute that legal rights and obligations become available to those
entitled by the language of the statute. Subject to the indispensable requisite of publication
under the due process clause,61 the determination as to when a law takes effect is wholly the
prerogative of Congress.62 As such, it is only upon its effectivity that a law may be executed
and the executive branch acquires the duties and powers to execute the said law. Before
that point, the role of the executive branch, particularly of the President, is limited to
approving or vetoing the law.63

From the moment the law becomes effective, any provision of law that empowers Congress
or any of its members to play any role in the implementation or enforcement of the law
violates the principle of separation of powers and is thus unconstitutional. Under this
principle, a provision that requires Congress or its members to approve the implementing
rules of a law after it has already taken effect shall be unconstitutional, as is a provision that
allows Congress or its members to overturn any directive or ruling made by the members of
the executive branch charged with the implementation of the law.

Following this rationale, Section 12 of RA 9335 should be struck down as unconstitutional.

While there may be similar provisions of other laws that may be invalidated for failure to pass
this standard, the Court refrains from invalidating them wholesale but will do so at the proper
time when an appropriate case assailing those provisions is brought before us.64

The next question to be resolved is: what is the effect of the unconstitutionality of Section 12
of RA 9335 on the other provisions of the law? Will it render the entire law unconstitutional?
No.

Section 13 of RA 9335 provides:

SEC. 13. Separability Clause. – If any provision of this Act is declared invalid by a competent
court, the remainder of this Act or any provision not affected by such declaration of invalidity
shall remain in force and effect.

In Tatad v. Secretary of the Department of Energy,65 the Court laid down the following rules:

The general rule is that where part of a statute is void as repugnant to the Constitution, while
another part is valid, the valid portion, if separable from the invalid, may stand and be
enforced. The presence of a separability clause in a statute creates the presumption that the
legislature intended separability, rather than complete nullity of the statute. To justify this
result, the valid portion must be so far independent of the invalid portion that it is fair to
presume that the legislature would have enacted it by itself if it had supposed that it could not
constitutionally enact the other. Enough must remain to make a complete, intelligible and
valid statute, which carries out the legislative intent. x x x

The exception to the general rule is that when the parts of a statute are so mutually
dependent and connected, as conditions, considerations, inducements, or compensations for
each other, as to warrant a belief that the legislature intended them as a whole, the nullity of
one part will vitiate the rest. In making the parts of the statute dependent, conditional, or
connected with one another, the legislature intended the statute to be carried out as a whole
and would not have enacted it if one part is void, in which case if some parts are
unconstitutional, all the other provisions thus dependent, conditional, or connected must fall
with them.

The separability clause of RA 9335 reveals the intention of the legislature to isolate and
detach any invalid provision from the other provisions so that the latter may continue in force
and effect. The valid portions can stand independently of the invalid section. Without Section
12, the remaining provisions still constitute a complete, intelligible and valid law which carries
out the legislative intent to optimize the revenue-generation capability and collection of the
BIR and the BOC by providing for a system of rewards and sanctions through the Rewards
and Incentives Fund and a Revenue Performance Evaluation Board.

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

WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of RA 9335

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

SO ORDERED.

ATTY. EVILLO C. PORMENTO, G.R. No. 191988

Petitioner,

CORONA, C.J.,

CARPIO,

CARPIO MORALES,

VELASCO, JR.,

NACHURA,

LEONARDO-DE CASTRO,

BRION,*

versus PERALTA,**

BERSAMIN,
DEL CASTILLO,

ABAD,

VILLARAMA, JR.,

PEREZ,

MENDOZA and

SERENO, JJ.

JOSEPH ERAP EJERCITO

ESTRADA and COMMISSION

ON ELECTIONS,

Respondents.

Promulgated:

August 31, 2010

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

RESOLUTION

CORONA, C.J.:

What is the proper interpretation of the following provision of Section 4, Article VII of the
Constitution: [t]he President shall not be eligible for any reelection?

The novelty and complexity of the constitutional issue involved in this case present a
temptation that magistrates, lawyers, legal scholars and law students alike would find hard to
resist. However, prudence dictates that this Court exercise judicial restraint where the issue
before it has already been mooted by subsequent events. More importantly, the
constitutional requirement of the existence of a case or an actual controversy for the proper
exercise of the power of judicial review constrains us to refuse the allure of making a grand
pronouncement that, in the end, will amount to nothing but a non-binding opinion.
The petition asks whether private respondent Joseph Ejercito Estrada is covered by the ban
on the President from any reelection. Private respondent was elected President of the
Republic of the Philippines in the general elections held on May 11, 1998. He sought the
presidency again in the general elections held on May 10, 2010. Petitioner Atty. Evillo C.
Pormento opposed private respondents candidacy and filed a petition for disqualification.
However, his petition was denied by the Second Division of public respondent Commission
on Elections (COMELEC).[1] His motion for reconsideration was subsequently denied by the
COMELEC en banc.[2]

Petitioner filed the instant petition for certiorari[3] on May 7, 2010. However, under the Rules
of Court, the filing of such petition would not stay the execution of the judgment, final order or
resolution of the COMELEC that is sought to be reviewed.[4] Besides, petitioner did not even
pray for the issuance of a temporary restraining order or writ of preliminary injunction. Hence,
private respondent was able to participate as a candidate for the position of President in the
May 10, 2010 elections where he garnered the second highest number of votes.[5]

Private respondent was not elected President the second time he ran. Since the issue on the
proper interpretation of the phrase any reelection will be premised on a persons second
(whether immediate or not) election as President, there is no case or controversy to be
resolved in this case. No live conflict of legal rights exists.[6]There is in this case no definite,
concrete, real or substantial controversy that touches on the legal relations of parties having
adverse legal interests.[7] No specific relief may conclusively be decreed upon by this Court
in this case that will benefit any of the parties herein.[8] As such, one of the essential
requisites for the exercise of the power of judicial review, the existence of an actual case or
controversy, is sorely lacking in this case.

As a rule, this Court may only adjudicate actual, ongoing controversies.[9] The Court is
not empowered to decide moot questions or abstract propositions, or to declare principles or
rules of law which cannot affect the result as to the thing in issue in the case before it.[10] In
other words, when a case is moot, it becomes non-justiciable.[11]

An action is considered moot when it no longer presents a justiciable controversy because

the issues involved have become academic or dead or when the matter in dispute has
already been resolved and hence, one is not entitled to judicial intervention unless the issue
is likely to be raised again between the parties. There is nothing for the court to resolve as
the determination thereof has been overtaken by subsequent events.[12]

Assuming an actual case or controversy existed prior to the proclamation of a President who
has been duly elected in the May 10, 2010 elections, the same is no longer true today.
Following the results of that elections, private respondent was not elected President for the
second time. Thus, any discussion of his reelection will simply be hypothetical and
speculative. It will serve no useful or practical purpose.
Accordingly, the petition is denied due course and is hereby DISMISSED.

G.R. No. 191618 November 23, 2010

ATTY. ROMULO B. MACALINTAL, Petitioner,

vs.
PRESIDENTIAL ELECTORAL TRIBUNAL, Respondent.

DECISION

NACHURA, J.:

Confronting us is an undesignated petition1 filed by Atty. Romulo B. Macalintal (Atty.

Macalintal), that questions the constitution of the Presidential Electoral Tribunal (PET) as an
illegal and unauthorized progeny of Section 4,2 Article VII of the Constitution:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the
election, returns, and qualifications of the President or Vice-President, and may promulgate
its rules for the purpose.

While petitioner concedes that the Supreme Court is "authorized to promulgate its rules for
the purpose," he chafes at the creation of a purportedly "separate tribunal" complemented by
a budget allocation, a seal, a set of personnel and confidential employees, to effect the
constitutional mandate. Petitioner’s averment is supposedly supported by the provisions of
the 2005 Rules of the Presidential Electoral Tribunal (2005 PET Rules),3 specifically:

(1) Rule 3 which provides for membership of the PET wherein the Chief Justice and
the Associate Justices are designated as "Chairman and Members," respectively;

(2) Rule 8(e) which authorizes the Chairman of the PET to appoint employees and
confidential employees of every member thereof;

(3) Rule 9 which provides for a separate "Administrative Staff of the Tribunal" with
the appointment of a Clerk and a Deputy Clerk of the Tribunal who, at the discretion
of the PET, may designate the Clerk of Court (en banc) as the Clerk of the Tribunal;
and

(4) Rule 11 which provides for a "seal" separate and distinct from the Supreme Court
seal.

Grudgingly, petitioner throws us a bone by acknowledging that the invoked constitutional

provision does allow the "appointment of additional personnel."

Further, petitioner highlights our decision in Buac v. COMELEC4 which peripherally declared
that "contests involving the President and the Vice-President fall within the exclusive original
jurisdiction of the PET, x x x in the exercise of quasi-judicial power." On this point, petitioner
reiterates that the constitution of the PET, with the designation of the Members of the Court
as Chairman and Members thereof, contravenes Section 12, Article VIII of the Constitution,
which prohibits the designation of Members of the Supreme Court and of other courts
established by law to any agency performing quasi-judicial or administrative functions.

The Office of the Solicitor General (OSG), as directed in our Resolution dated April 6, 2010,
filed a Comment5thereon. At the outset, the OSG points out that the petition filed by Atty.
Macalintal is unspecified and without statutory basis; "the liberal approach in its preparation x
x x is a violation of the well known rules of practice and pleading in this jurisdiction."

In all, the OSG crystallizes the following issues for resolution of the Court:

WHETHER x x x PETITIONER HAS LOCUS STANDI TO FILE THE INSTANT PETITION.

II

WHETHER x x x THE CREATION OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS

UNCONSTITUTIONAL FOR BEING A VIOLATION OF PARAGRAPH 7, SECTION 4 OF
ARTICLE VII OF THE 1987 CONSTITUTION.

III

WHETHER x x x THE DESIGNATION OF MEMBERS OF THE SUPREME COURT AS

MEMBERS OF THE PRESIDENTIAL ELECTORAL TRIBUNAL IS UNCONSTITUTIONAL
FOR BEING A VIOLATION OF SECTION 12, ARTICLE VIII OF THE 1987
CONSTITUTION.6

In his Reply,7 petitioner maintains that:

1. He has legal standing to file the petition given his averment of transcendental
importance of the issues raised therein;

2. The creation of the PET, a separate tribunal from the Supreme Court, violates
Section 4, Article VII of the Constitution; and

3. The PET, being a separate tribunal, exercises quasi-judicial functions contrary to

Section 12, Article VIII of the Constitution.

We winnow the meanderings of petitioner into the singular issue of whether the constitution
of the PET, composed of the Members of this Court, is unconstitutional, and violates Section
4, Article VII and Section 12, Article VIII of the Constitution.

But first, we dispose of the procedural issue of whether petitioner has standing to file the
present petition.

The issue of locus standi is derived from the following requisites of a judicial inquiry:

1. There must be an actual case or controversy;

 2. The question of constitutionality must be raised by the proper party;

3. The constitutional question must be raised at the earliest possible opportunity; and

4. The decision of the constitutional question must be necessary to the determination

of the case itself.8

On more than one occasion we have characterized a proper party as one who has sustained
or is in immediate danger of sustaining an injury as a result of the act complained of.9 The
dust has long settled on the test laid down in Baker v. Carr:10 "whether the party has 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 questions."11 Until and unless such actual or threatened
injury is established, the complainant is not clothed with legal personality to raise the
constitutional question.

Our pronouncements in David v. Macapagal-Arroyo12 illuminate:

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."

xxxx

However, to prevent just about any person from seeking judicial interference in any official
policy or act with which he disagreed with, and thus hinders the activities of governmental
agencies engaged in public service, the United States Supreme Court laid down the more
stringent "direct injury" test in Ex Parte Levitt, later reaffirmed in Tileston v. Ullman. The
same Court ruled that for a private individual to invoke the judicial power to determine the
validity of an executive or legislative action, he must show that he has sustained a direct
injury as a result of that action, and it is not sufficient that he has a general interest common
to all members of the public.

This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, 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.

However, being a mere procedural technicality, the requirement of locus standi may be
waived by the Court in the exercise of its discretion. This was done in the 1949 Emergency
Powers Cases, Araneta v. Dinglasan, where the "transcendental importance" of the cases
prompted the Court to act liberally. Such liberality was neither a rarity nor accidental. In
Aquino v. Comelec, this Court resolved to pass upon the issues raised due to the "far-
reaching implications" of the petition notwithstanding its categorical statement that petitioner
therein had no personality to file the suit. Indeed, there is a chain of cases where this liberal
policy has been observed, allowing ordinary citizens, members of Congress, and civic
organizations to prosecute actions involving the constitutionality or validity of laws,
regulations and rulings.

xxxx

By way of summary, the following rules may be culled from the cases decided by this Court.
Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue,
provided that the following requirements are met:

(1) cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that
the tax measure is unconstitutional;

(3) for voters, there must be a showing of obvious interest in the validity of the
election law in question;

(4) for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and

(5) for legislators, there must be a claim that the official action complained of
infringes upon their prerogatives as legislators.

Contrary to the well-settled actual and direct injury test, petitioner has simply alleged a
generalized interest in the outcome of this case, and succeeds only in muddling the issues.
Paragraph 2 of the petition reads:

2. x x x Since the creation and continued operation of the PET involves the use of public
funds and the issue raised herein is of transcendental importance, it is petitioner’s humble
submission that, as a citizen, a taxpayer and a member of the BAR, he has the legal
standing to file this petition.

But even if his submission is valid, petitioner’s standing is still imperiled by the white elephant
in the petition, i.e., his appearance as counsel for former President Gloria Macapagal-Arroyo
(Macapagal-Arroyo) in the election protest filed by 2004 presidential candidate Fernando
Poe, Jr. before the Presidential Electoral Tribunal,13 because judicial inquiry, as mentioned
above, requires that the constitutional question be raised at the earliest possible
opportunity.14Such appearance as counsel before the Tribunal, to our mind, would have been
the first opportunity to challenge the constitutionality of the Tribunal’s constitution.

Although there are recognized exceptions to this requisite, we find none in this instance.
Petitioner is unmistakably estopped from assailing the jurisdiction of the PET before which
tribunal he had ubiquitously appeared and had acknowledged its jurisdiction in 2004. His
failure to raise a seasonable constitutional challenge at that time, coupled with his
unconditional acceptance of the Tribunal’s authority over the case he was defending,
translates to the clear absence of an indispensable requisite for the proper invocation of this
Court’s power of judicial review. Even on this score alone, the petition ought to be dismissed
outright.
Prior to petitioner’s appearance as counsel for then protestee Macapagal-Arroyo, we had
occasion to affirm the grant of original jurisdiction to this Court as a Presidential Electoral
Tribunal in the auspicious case of Tecson v. Commission on Elections.15 Thus -

Petitioners Tecson, et al., in G.R. No. 161434, and Velez, in G.R. No. 161634, invoke the
provisions of Article VII, Section 4, paragraph 7, of the 1987 Constitution in assailing the
jurisdiction of the COMELEC when it took cognizance of SPA No. 04-003 and in urging the
Supreme Court to instead take on the petitions they directly instituted before it. The
Constitutional provision cited reads:

"The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the
election, returns, and qualifications of the President or Vice-President, and may promulgate
its rules for the purpose."

The provision is an innovation of the 1987 Constitution. The omission in the 1935 and the
1973 Constitution to designate any tribunal to be the sole judge of presidential and vice-
presidential contests, has constrained this Court to declare, in Lopez vs. Roxas, as "not
(being) justiciable" controversies or disputes involving contests on the elections, returns and
qualifications of the President or Vice-President. The constitutional lapse prompted
Congress, on 21 June 1957, to enact Republic Act No. 1793, "An Act Constituting an
Independent Presidential Electoral Tribunal to Try, Hear and Decide Protests Contesting the
Election of the President-Elect and the Vice-President-Elect of the Philippines and Providing
for the Manner of Hearing the Same." Republic Act 1793 designated the Chief Justice and
the Associate Justices of the Supreme Court to be the members of the tribunal. Although the
subsequent adoption of the parliamentary form of government under the 1973 Constitution
might have implicitly affected Republic Act No. 1793, the statutory set-up, nonetheless,
would now be deemed revived under the present Section 4, paragraph 7, of the 1987
Constitution.

Former Chief Justice Reynato S. Puno, in his separate opinion, was even more categorical:

The Court is unanimous on the issue of jurisdiction. It has no jurisdiction on the Tecson and
Valdez petitions. Petitioners cannot invoke Article VII, Section 4, par. 7 of the Constitution
which provides:

"The Supreme Court, sitting en banc shall be the sole judge of all contests relating to the
election, returns and qualifications of the President or Vice President and may promulgate its
rules for the purpose."

The word "contest" in the provision means that the jurisdiction of this Court can only be
invoked after the election and proclamation of a President or Vice President. There can be
no "contest" before a winner is proclaimed.16

Similarly, in her separate opinion, Justice Alicia Austria-Martinez declared:

G.R. Nos. 161434 and 161634 invoke the Court’s exclusive jurisdiction under the last
paragraph of Section 4, Article VII of the 1987 Constitution. I agree with the majority opinion
that these petitions should be dismissed outright for prematurity. The Court has no
jurisdiction at this point of time to entertain said petitions.

The Supreme Court, as a Presidential Electoral Tribunal (PET), the Senate Electoral Tribunal
(SET) and House of Representatives Electoral Tribunal (HRET) are electoral tribunals, each
specifically and exclusively clothed with jurisdiction by the Constitution to act respectively as
"sole judge of all contests relating to the election, returns, and qualifications" of the President
and Vice-President, Senators, and Representatives. In a litany of cases, this Court has long
recognized that these electoral tribunals exercise jurisdiction over election contests only after
a candidate has already been proclaimed winner in an election. Rules 14 and 15 of the Rules
of the Presidential Electoral Tribunal provide that, for President or Vice-President, election
protest or quo warranto may be filed after the proclamation of the winner.17

Petitioner, a prominent election lawyer who has filed several cases before this Court
involving constitutional and election law issues, including, among others, the constitutionality
of certain provisions of Republic Act (R.A.) No. 9189 (The Overseas Absentee Voting Act of
2003),18 cannot claim ignorance of: (1) the invocation of our jurisdiction under Section 4,
Article VII of the Constitution; and (2) the unanimous holding thereon. Unquestionably, the
overarching framework affirmed in Tecson v. Commission on Elections19 is that the Supreme
Court has original jurisdiction to decide presidential and vice-presidential election protests
while concurrently acting as an independent Electoral Tribunal.

Despite the foregoing, petitioner is adamant on his contention that the provision, as worded,
does not authorize the constitution of the PET. And although he concedes that the Supreme
Court may promulgate its rules for this purpose, petitioner is insistent that the constitution of
the PET is unconstitutional. However, petitioner avers that it allows the Court to appoint
additional personnel for the purpose, notwithstanding the silence of the constitutional
provision.

Petitioner’s pastiche arguments are all hurled at the Court, hopeful that at least one might
possibly stick. But these arguments fail to elucidate on the scope of the rules the Supreme
Court is allowed to promulgate. Apparently, petitioner’s concept of this adjunct of judicial
power is very restrictive. Fortunately, thanks in no part to petitioner’s opinion, we are guided
by well-settled principles of constitutional construction.

Verba legis dictates that wherever possible, the words used in the Constitution must be given
their ordinary meaning except where technical terms are employed, in which case the
significance thus attached to them prevails. This Court, speaking through former Chief
Justice Enrique Fernando, in J.M. Tuason & Co., Inc. v. Land Tenure
Administration20 instructs:

As the Constitution is not primarily a lawyer’s document, it being essential for the rule of law
to obtain that it should ever be present in the people’s consciousness, its language as much
as possible should be understood in the sense they have in common use. What it says
according to the text of the provision to be construed compels acceptance and negates the
power of the courts to alter it, based on the postulate that the framers and the people mean
what they say. Thus these are cases where the need for construction is reduced to a
minimum.

However, where there is ambiguity or doubt, the words of the Constitution should be
interpreted in accordance with the intent of its framers or ratio legis et anima. A doubtful
provision must be examined in light of the history of the times, and the condition and
circumstances surrounding the framing of the Constitution.21 In following this guideline,
courts should bear in mind the object sought to be accomplished in adopting a doubtful
constitutional provision, and the evils sought to be prevented or remedied.22 Consequently,
the intent of the framers and the people ratifying the constitution, and not the panderings of
self-indulgent men, should be given effect.
Last, ut magis valeat quam pereat – the Constitution is to be interpreted as a whole. We
intoned thus in the landmark case of Civil Liberties Union v. Executive Secretary:23

It is a well-established rule in constitutional construction that no one provision of the

Constitution is to be separated from all the others, to be considered alone, but that all the
provisions bearing upon a particular subject are to be brought into view and to be so
interpreted as to effectuate the great purposes of the instrument. Sections bearing on a
particular subject should be considered and interpreted together as to effectuate the whole
purpose of the Constitution and one section is not to be allowed to defeat another, if by any
reasonable construction, the two can be made to stand together.

In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make the
words idle and nugatory.

We had earlier expounded on this rule of construction in Chiongbian v. De Leon, et al., 24 to

wit:

[T]he members of the Constitutional Convention could not have dedicated a provision of our
Constitution merely for the benefit of one person without considering that it could also affect
others. When they adopted subsection 2, they permitted, if not willed, that said provision
should function to the full extent of its substance and its terms, not by itself alone, but in
conjunction with all other provisions of that great document.

On its face, the contentious constitutional provision does not specify the establishment of the
PET. But neither does it preclude, much less prohibit, otherwise. It entertains divergent
interpretations which, though unacceptable to petitioner, do not include his restrictive view –
one which really does not offer a solution.

Section 4, Article VII of the Constitution, the provision under scrutiny, should be read with
other related provisions of the Constitution such as the parallel provisions on the Electoral
Tribunals of the Senate and the House of Representatives.

Before we resort to the records of the Constitutional Commission, we discuss the framework
of judicial power mapped out in the Constitution. Contrary to petitioner’s assertion, the
Supreme Court’s constitutional mandate to act as sole judge of election contests involving
our country’s highest public officials, and its rule-making authority in connection therewith, is
not restricted; it includes all necessary powers implicit in the exercise thereof.

We recall the unprecedented and trailblazing case of Marcos v. Manglapus:25

The 1987 Constitution has fully restored the separation of powers of the three great
branches of government. To recall the words of Justice Laurel in Angara v. Electoral
Commission, "the Constitution has blocked but with deft strokes and in bold lines, allotment
of power to the executive, the legislative and the judicial departments of the government."
Thus, the 1987 Constitution explicitly provides that "[t]he legislative power shall be vested in
the Congress of the Philippines" [Art. VI, Sec. 1], "[t]he executive power shall be vested in
the President of the Philippines" [Art. VII, Sec. 1], and "[t]he judicial power shall be vested in
one Supreme Court and in such lower courts as may be established by law" [Art. VIII, Sec.
1]. These provisions not only establish a separation of powers by actual division but also
confer plenary legislative, executive and judicial powers subject only to limitations provided in
the Constitution. For as the Supreme Court in Ocampo v. Cabangis pointed out "a grant of
the legislative power means a grant of all legislative power; and a grant of the judicial power
means a grant of all the judicial power which may be exercised under the government."

The Court could not have been more explicit then on the plenary grant and exercise of
judicial power. Plainly, the abstraction of the Supreme Court acting as a Presidential
Electoral Tribunal from the unequivocal grant of jurisdiction in the last paragraph of Section
4, Article VII of the Constitution is sound and tenable.

The mirabile dictu of the grant of jurisdiction to this Court, albeit found in the Article on the
executive branch of government, and the constitution of the PET, is evident in the
discussions of the Constitutional Commission. On the exercise of this Court’s judicial power
as sole judge of presidential and vice-presidential election contests, and to promulgate its
rules for this purpose, we find the proceedings in the Constitutional Commission most
instructive:

MR. DAVIDE. On line 25, after the words "Vice-President," I propose to add AND MAY
PROMULGATE ITS RULES FOR THE PURPOSE. This refers to the Supreme Court sitting
en banc. This is also to confer on the Supreme Court exclusive authority to enact the
necessary rules while acting as sole judge of all contests relating to the election, returns and
qualifications of the President or Vice-President.

MR. REGALADO. My personal position is that the rule-making power of the Supreme Court
with respect to its internal procedure is already implicit under the Article on the Judiciary;
considering, however, that according to the Commissioner, the purpose of this is to indicate
the sole power of the Supreme Court without intervention by the legislature in the
promulgation of its rules on this particular point, I think I will personally recommend its
acceptance to the Committee.26

xxxx

MR. NOLLEDO. x x x.

With respect to Sections 10 and 11 on page 8, I understand that the Committee has also
created an Electoral Tribunal in the Senate and a Commission on Appointments which may
cover membership from both Houses. But my question is: It seems to me that the committee
report does not indicate which body should promulgate the rules that shall govern the
Electoral Tribunal and the Commission on Appointments. Who shall then promulgate the
rules of these bodies?

MR. DAVIDE. The Electoral Tribunal itself will establish and promulgate its rules because it
is a body distinct and independent already from the House, and so with the Commission on
Appointments also. It will have the authority to promulgate its own rules.27

On another point of discussion relative to the grant of judicial power, but equally cogent, we
listen to former Chief Justice Roberto Concepcion:

MR. SUAREZ. Thank you.

Would the Commissioner not consider that violative of the doctrine of separation of powers?
MR. CONCEPCION. I think Commissioner Bernas explained that this is a contest between
two parties. This is a judicial power.

MR. SUAREZ. We know, but practically the Committee is giving to the judiciary the right to
declare who will be the President of our country, which to me is a political action.

MR. CONCEPCION. There are legal rights which are enforceable under the law, and these
are essentially justiciable questions.

MR. SUAREZ. If the election contest proved to be long, burdensome and tedious, practically
all the time of the Supreme Court sitting en banc would be occupied with it considering that
they will be going over millions and millions of ballots or election returns, Madam President.28

Echoing the same sentiment and affirming the grant of judicial power to the Supreme Court,
Justice Florenz D. Regalado29 and Fr. Joaquin Bernas30 both opined:

MR. VILLACORTA. Thank you very much, Madam President.

I am not sure whether Commissioner Suarez has expressed his point. On page 2, the fourth
paragraph of Section 4 provides:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the
election, returns and qualifications of the President or Vice-President.

May I seek clarification as to whether or not the matter of determining the outcome of the
contests relating to the election returns and qualifications of the President or Vice-President
is purely a political matter and, therefore, should not be left entirely to the judiciary. Will the
above-quoted provision not impinge on the doctrine of separation of powers between the
executive and the judicial departments of the government?

MR. REGALADO. No, I really do not feel that would be a problem. This is a new provision
incidentally. It was not in the 1935 Constitution nor in the 1973 Constitution.

MR. VILLACORTA. That is right.

MR. REGALADO. We feel that it will not be an intrusion into the separation of powers
guaranteed to the judiciary because this is strictly an adversarial and judicial proceeding.

MR. VILLACORTA. May I know the rationale of the Committee because this supersedes
Republic Act 7950 which provides for the Presidential Electoral Tribunal?

FR. BERNAS. Precisely, this is necessary. Election contests are, by their nature, judicial.
Therefore, they are cognizable only by courts. If, for instance, we did not have a
constitutional provision on an electoral tribunal for the Senate or an electoral tribunal for the
House, normally, as composed, that cannot be given jurisdiction over contests.

So, the background of this is really the case of Roxas v. Lopez. The Gentleman will
remember that in that election, Lopez was declared winner. He filed a protest before the
Supreme Court because there was a republic act which created the Supreme Court as the
Presidential Electoral Tribunal. The question in this case was whether new powers could be
given the Supreme Court by law. In effect, the conflict was actually whether there was an
attempt to create two Supreme Courts and the answer of the Supreme Court was: "No, this
did not involve the creation of two Supreme Courts, but precisely we are giving new
jurisdiction to the Supreme Court, as it is allowed by the Constitution. Congress may allocate
various jurisdictions."

Before the passage of that republic act, in case there was any contest between two
presidential candidates or two vice-presidential candidates, no one had jurisdiction over it.
So, it became necessary to create a Presidential Electoral Tribunal. What we have done is to
constitutionalize what was statutory but it is not an infringement on the separation of powers
because the power being given to the Supreme Court is a judicial power.31

Unmistakable from the foregoing is that the exercise of our power to judge presidential and
vice-presidential election contests, as well as the rule-making power adjunct thereto, is
plenary; it is not as restrictive as petitioner would interpret it. In fact, former Chief Justice
Hilario G. Davide, Jr., who proposed the insertion of the phrase, intended the Supreme Court
to exercise exclusive authority to promulgate its rules of procedure for that purpose. To this,
Justice Regalado forthwith assented and then emphasized that the sole power ought to be
without intervention by the legislative department. Evidently, even the legislature cannot limit
the judicial power to resolve presidential and vice-presidential election contests and our rule-
making power connected thereto.

To foreclose all arguments of petitioner, we reiterate that the establishment of the PET
simply constitutionalized what was statutory before the 1987 Constitution. The experiential
context of the PET in our country cannot be denied.32

Consequently, we find it imperative to trace the historical antecedents of the PET.

Article VII, Section 4, paragraph 7 of the 1987 Constitution is an innovation. The precursors
of the present Constitution did not contain similar provisions and instead vested upon the
legislature all phases of presidential and vice-presidential elections – from the canvassing of
election returns, to the proclamation of the president-elect and the vice-president elect, and
even the determination, by ordinary legislation, of whether such proclamations may be
contested. Unless the legislature enacted a law creating an institution that would hear
election contests in the Presidential and Vice-Presidential race, a defeated candidate had no
legal right to demand a recount of the votes cast for the office involved or to challenge the
ineligibility of the proclaimed candidate. Effectively, presidential and vice-presidential
contests were non-justiciable in the then prevailing milieu.

The omission in the 1935 Constitution was intentional. It was mainly influenced by the
absence of a similar provision in its pattern, the Federal Constitution of the United States.
Rather, the creation of such tribunal was left to the determination of the National Assembly.
The journal of the 1935 Constitutional Convention is crystal clear on this point:

Delegate Saguin. – For an information. It seems that this Constitution does not contain any
provision with respect to the entity or body which will look into the protests for the positions of
the President and Vice-President.

President Recto. – Neither does the American constitution contain a provision over the
subject.

Delegate Saguin. – But then, who will decide these protests?

President Recto. – I suppose that the National Assembly will decide on that.33

To fill the void in the 1935 Constitution, the National Assembly enacted R.A. No. 1793,
establishing an independent PET to try, hear, and decide protests contesting the election of
President and Vice-President. The Chief Justice and the Associate Justices of the Supreme
Court were tasked to sit as its Chairman and Members, respectively. Its composition was
extended to retired Supreme Court Justices and incumbent Court of Appeals Justices who
may be appointed as substitutes for ill, absent, or temporarily incapacitated regular
members.

The eleven-member tribunal was empowered to promulgate rules for the conduct of its
proceedings. It was mandated to sit en banc in deciding presidential and vice-presidential
contests and authorized to exercise powers similar to those conferred upon courts of justice,
including the issuance of subpoena, taking of depositions, arrest of witnesses to compel their
appearance, production of documents and other evidence, and the power to punish
contemptuous acts and bearings. The tribunal was assigned a Clerk, subordinate officers,
and employees necessary for the efficient performance of its functions.

R.A. No. 1793 was implicitly repealed and superseded by the 1973 Constitution which
replaced the bicameral legislature under the 1935 Constitution with the unicameral body of a
parliamentary government.

With the 1973 Constitution, a PET was rendered irrelevant, considering that the President
was not directly chosen by the people but elected from among the members of the National
Assembly, while the position of Vice-President was constitutionally non-existent.

In 1981, several modifications were introduced to the parliamentary system. Executive power
was restored to the President who was elected directly by the people. An Executive
Committee was formed to assist the President in the performance of his functions and duties.
Eventually, the Executive Committee was abolished and the Office of Vice-President was
installed anew.

These changes prompted the National Assembly to revive the PET by enacting, on
December 3, 1985, Batas Pambansa Bilang (B.P. Blg.) 884, entitled "An Act Constituting an
Independent Presidential Electoral Tribunal to Try, Hear and Decide Election Contests in the
Office of the President and Vice-President of the Philippines, Appropriating Funds Therefor
and For Other Purposes." This tribunal was composed of nine members, three of whom were
the Chief Justice of the Supreme Court and two Associate Justices designated by him, while
the six were divided equally between representatives of the majority and minority parties in
the Batasang Pambansa.

Aside from the license to wield powers akin to those of a court of justice, the PET was
permitted to recommend the prosecution of persons, whether public officers or private
individuals, who in its opinion had participated in any irregularity connected with the
canvassing and/or accomplishing of election returns.

The independence of the tribunal was highlighted by a provision allocating a specific budget
from the national treasury or Special Activities Fund for its operational expenses. It was
empowered to appoint its own clerk in accordance with its rules. However, the subordinate
officers were strictly employees of the judiciary or other officers of the government who were
merely designated to the tribunal.
After the historic People Power Revolution that ended the martial law era and installed
Corazon Aquino as President, civil liberties were restored and a new constitution was
formed.

With R.A. No. 1793 as framework, the 1986 Constitutional Commission transformed the then
statutory PET into a constitutional institution, albeit without its traditional nomenclature:

FR. BERNAS. x x x.

x x x. So it became necessary to create a Presidential Electoral Tribunal. What we have

done is to constitutionalize what was statutory but it is not an infringement on the separation
of powers because the power being given to the Supreme Court is a judicial power.34

Clearly, petitioner’s bete noire of the PET and the exercise of its power are unwarranted. His
arguments that: (1) the Chief Justice and Associate Justices are referred to as "Chairman"
and "Members," respectively; (2) the PET uses a different seal; (3) the Chairman is
authorized to appoint personnel; and (4) additional compensation is allocated to the
"Members," in order to bolster his claim of infirmity in the establishment of the PET, are too
superficial to merit further attention by the Court.

Be that as it may, we hasten to clarify the structure of the PET as a legitimate progeny of
Section 4, Article VII of the Constitution, composed of members of the Supreme Court, sitting
en banc. The following exchange in the 1986 Constitutional Commission should provide
enlightenment:

MR. SUAREZ. Thank you. Let me proceed to line 23, page 2, wherein it is provided, and I
quote:

The Supreme Court, sitting en banc[,] shall be the sole judge of all contests relating to the
election, returns and qualifications of the President or Vice-President.

Are we not giving enormous work to the Supreme Court especially when it is directed to sit
en banc as the sole judge of all presidential and vice-presidential election contests?

MR. SUMULONG. That question will be referred to Commissioner Concepcion.

MR. CONCEPCION. This function was discharged by the Supreme Court twice and the
Supreme Court was able to dispose of each case in a period of one year as provided by law.
Of course, that was probably during the late 1960s and early 1970s. I do not know how the
present Supreme Court would react to such circumstances, but there is also the question of
who else would hear the election protests.

MR. SUAREZ. We are asking this question because between lines 23 to 25, there are no
rules provided for the hearings and there is not time limit or duration for the election contest
to be decided by the Supreme Court. Also, we will have to consider the historical background
that when R.A. 1793, which organized the Presidential Electoral Tribunal, was promulgated
on June 21, 1957, at least three famous election contests were presented and two of them
ended up in withdrawal by the protestants out of sheer frustration because of the delay in the
resolution of the cases. I am referring to the electoral protest that was lodged by former
President Carlos P. Garcia against our "kabalen" former President Diosdado Macapagal in
1961 and the vice-presidential election contest filed by the late Senator Gerardo Roxas
against Vice-President Fernando Lopez in 1965.

MR. CONCEPCION. I cannot answer for what the protestants had in mind. But when that
protest of Senator Roxas was withdrawn, the results were already available. Senator Roxas
did not want to have a decision adverse to him. The votes were being counted already, and
he did not get what he expected so rather than have a decision adverse to his protest, he
withdrew the case.

xxxx

MR. SUAREZ. I see. So the Commission would not have any objection to vesting in the
Supreme Court this matter of resolving presidential and vice-presidential contests?

MR. CONCEPCION. Personally, I would not have any objection.

MR. SUAREZ. Thank you.

Would the Commissioner not consider that violative of the doctrine of separation of powers?

MR. CONCEPCION. I think Commissioner Bernas explained that this is a contest between
two parties. This is a judicial power.

MR. SUAREZ. We know, but practically the Committee is giving to the judiciary the right to
declare who will be the President of our country, which to me is a political action.

MR. CONCEPCION. There are legal rights which are enforceable under the law, and these
are essentially justiciable questions.

MR. SUAREZ. If the election contest proved to be long, burdensome and tedious, practically
all the time of the Supreme Court sitting en banc would be occupied with it considering that
they will be going over millions and millions of ballots or election returns, Madam President.

MR. CONCEPCION. The time consumed or to be consumed in this contest for President is
dependent upon they key number of teams of revisors. I have no experience insofar as
contests in other offices are concerned.

MR. SUAREZ. Although there is a requirement here that the Supreme Court is mandated to
sit en banc?

MR. CONCEPCION. Yes.

MR. SUAREZ. I see.

MR. CONCEPCION. The steps involved in this contest are: First, the ballot boxes are
opened before teams of three, generally, a representative each of the court, of the protestant
and of the "protestee." It is all a questions of how many teams are organized. Of course, that
can be expensive, but it would be expensive whatever court one would choose. There were
times that the Supreme Court, with sometimes 50 teams at the same time working, would
classify the objections, the kind of problems, and the court would only go over the objected
votes on which the parties could not agree. So it is not as awesome as it would appear
insofar as the Court is concerned. What is awesome is the cost of the revision of the ballots
because each party would have to appoint one representative for every team, and that may
take quite a big amount.

MR. SUAREZ. If we draw from the Commissioner’s experience which he is sharing with us,
what would be the reasonable period for the election contest to be decided?

MR. CONCEPCION. Insofar as the Supreme Court is concerned, the Supreme Court always
manages to dispose of the case in one year.

MR. SUAREZ. In one year. Thank you for the clarification.35

Obvious from the foregoing is the intent to bestow independence to the Supreme Court as
the PET, to undertake the Herculean task of deciding election protests involving presidential
and vice-presidential candidates in accordance with the process outlined by former Chief
Justice Roberto Concepcion. It was made in response to the concern aired by delegate Jose
E. Suarez that the additional duty may prove too burdensome for the Supreme Court. This
explicit grant of independence and of the plenary powers needed to discharge this burden
justifies the budget allocation of the PET.

The conferment of additional jurisdiction to the Supreme Court, with the duty characterized
as an "awesome" task, includes the means necessary to carry it into effect under the
doctrine of necessary implication.36 We cannot overemphasize that the abstraction of the
PET from the explicit grant of power to the Supreme Court, given our abundant experience,
is not unwarranted.

A plain reading of Article VII, Section 4, paragraph 7, readily reveals a grant of authority to
the Supreme Court sitting en banc. In the same vein, although the method by which the
Supreme Court exercises this authority is not specified in the provision, the grant of power
does not contain any limitation on the Supreme Court’s exercise thereof. The Supreme
Court’s method of deciding presidential and vice-presidential election contests, through the
PET, is actually a derivative of the exercise of the prerogative conferred by the aforequoted
constitutional provision. Thus, the subsequent directive in the provision for the Supreme
Court to "promulgate its rules for the purpose."

The conferment of full authority to the Supreme Court, as a PET, is equivalent to the full
authority conferred upon the electoral tribunals of the Senate and the House of
Representatives, i.e., the Senate Electoral Tribunal (SET) and the House of Representatives
Electoral Tribunal (HRET),37 which we have affirmed on numerous occasions.38

Particularly cogent are the discussions of the Constitutional Commission on the parallel
provisions of the SET and the HRET. The discussions point to the inevitable conclusion that
the different electoral tribunals, with the Supreme Court functioning as the PET, are
constitutional bodies, independent of the three departments of government – Executive,
Legislative, and Judiciary – but not separate therefrom.

MR. MAAMBONG. x x x.

My questions will be very basic so we can go as fast as we can. In the case of the electoral
tribunal, either of the House or of the Senate, is it correct to say that these tribunals are
constitutional creations? I will distinguish these with the case of the Tanodbayan and the
Sandiganbayan which are created by mandate of the Constitution but they are not
constitutional creations. Is that a good distinction?

xxxx

MR. MAAMBONG. Could we, therefore, say that either the Senate Electoral Tribunal or the
House Electoral Tribunal is a constitutional body?

MR. AZCUNA. It is, Madam President.

MR. MAAMBONG. If it is a constitutional body, is it then subject to constitutional restrictions?

MR. AZCUNA. It would be subject to constitutional restrictions intended for that body.

MR. MAAMBONG. I see. But I want to find out if the ruling in the case of Vera v. Avelino, 77
Phil. 192, will still be applicable to the present bodies we are creating since it ruled that the
electoral tribunals are not separate departments of the government. Would that ruling still be
valid?

MR. AZCUNA. Yes, they are not separate departments because the separate departments
are the legislative, the executive and the judiciary; but they are constitutional bodies.39

The view taken by Justices Adolfo S. Azcuna40 and Regalado E. Maambong41 is schooled by
our holding in Lopez v. Roxas, et al.:42

Section 1 of Republic Act No. 1793, which provides that:

"There shall be an independent Presidential Electoral Tribunal x x x which shall be the sole
judge of all contests relating to the election, returns, and qualifications of the president-elect
and the vice-president-elect of the Philippines."

has the effect of giving said defeated candidate the legal right to contest judicially the
election of the President-elect of Vice-President-elect and to demand a recount of the votes
case for the office involved in the litigation, as well as to secure a judgment declaring that he
is the one elected president or vice-president, as the case may be, and that, as such, he is
entitled to assume the duties attached to said office. And by providing, further, that the
Presidential Electoral Tribunal "shall be composed of the Chief Justice and the other ten
Members of the Supreme Court," said legislation has conferred upon such Court an
additional original jurisdiction of an exclusive character.

Republic Act No. 1793 has not created a new or separate court. It has merely conferred
upon the Supreme Court the functions of a Presidential Electoral Tribunal. The result of the
enactment may be likened to the fact that courts of first instance perform the functions of
such ordinary courts of first instance, those of court of land registration, those of probate
courts, and those of courts of juvenile and domestic relations. It is, also, comparable to the
situation obtaining when the municipal court of a provincial capital exercises its authority,
pursuant to law, over a limited number of cases which were previously within the exclusive
jurisdiction of courts of first instance.

In all of these instances, the court (court of first instance or municipal court) is only one,
although the functions may be distinct and, even, separate. Thus the powers of a court of
first instance, in the exercise of its jurisdiction over ordinary civil cases, are broader than, as
well as distinct and separate from, those of the same court acting as a court of land
registration or a probate court, or as a court of juvenile and domestic relations. So too, the
authority of the municipal court of a provincial capital, when acting as such municipal court,
is, territorially more limited than that of the same court when hearing the aforementioned
cases which are primary within the jurisdiction of courts of first instance. In other words, there
is only one court, although it may perform the functions pertaining to several types of courts,
each having some characteristics different from those of the others.

Indeed, the Supreme Court, the Court of Appeals and courts of first instance, are vested with
original jurisdiction, as well as with appellate jurisdiction, in consequence of which they are
both trial courts and, appellate courts, without detracting from the fact that there is only one
Supreme Court, one Court of Appeals, and one court of first instance, clothed with authority
to discharge said dual functions. A court of first instance, when performing the functions of a
probate court or a court of land registration, or a court of juvenile and domestic relations,
although with powers less broad than those of a court of first instance, hearing ordinary
actions, is not inferior to the latter, for one cannot be inferior to itself. So too, the Presidential
Electoral Tribunal is not inferior to the Supreme Court, since it is the same Court although
the functions peculiar to said Tribunal are more limited in scope than those of the Supreme
Court in the exercise of its ordinary functions. Hence, the enactment of Republic Act No.
1793, does not entail an assumption by Congress of the power of appointment vested by the
Constitution in the President. It merely connotes the imposition of additional duties upon the
Members of the Supreme Court.

By the same token, the PET is not a separate and distinct entity from the Supreme Court,
albeit it has functions peculiar only to the Tribunal. It is obvious that the PET was constituted
in implementation of Section 4, Article VII of the Constitution, and it faithfully complies – not
unlawfully defies – the constitutional directive. The adoption of a separate seal, as well as
the change in the nomenclature of the Chief Justice and the Associate Justices into
Chairman and Members of the Tribunal, respectively, was designed simply to highlight the
singularity and exclusivity of the Tribunal’s functions as a special electoral court.

As regards petitioner’s claim that the PET exercises quasi-judicial functions in contravention
of Section 12, Article VIII of the Constitution, we point out that the issue in Buac v.
COMELEC43 involved the characterization of the enforcement and administration of a law
relative to the conduct of a plebiscite which falls under the jurisdiction of the Commission on
Elections. However, petitioner latches on to the enumeration in Buac which declared, in an
obiter, that "contests involving the President and the Vice-President fall within the exclusive
original jurisdiction of the PET, also in the exercise of quasi-judicial power."

The issue raised by petitioner is more imagined than real. Section 12, Article VIII of the
Constitution reads:

SEC. 12. The Members of the Supreme Court and of other courts established by law shall
not be designated to any agency performing quasi-judicial or administrative functions.

The traditional grant of judicial power is found in Section 1, Article VIII of the Constitution
which provides that the power "shall be vested in one Supreme Court and in such lower
courts as may be established by law." Consistent with our presidential system of
government, the function of "dealing with the settlement of disputes, controversies or
conflicts involving rights, duties or prerogatives that are legally demandable and
enforceable" 44 is apportioned to courts of justice. With the advent of the 1987 Constitution,
judicial power was expanded to include "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."45 The
power was expanded, but it remained absolute.

The set up embodied in the Constitution and statutes characterizes the resolution of electoral
contests as essentially an exercise of judicial power. 1av v phi 1

At the barangay and municipal levels, original and exclusive jurisdiction over election
contests is vested in the municipal or metropolitan trial courts and the regional trial courts,
respectively.

At the higher levels – city, provincial, and regional, as well as congressional and senatorial –
exclusive and original jurisdiction is lodged in the COMELEC and in the House of
Representatives and Senate Electoral Tribunals, which are not, strictly and literally speaking,
courts of law. Although not courts of law, they are, nonetheless, empowered to resolve
election contests which involve, in essence, an exercise of judicial power, because of the
explicit constitutional empowerment found in Section 2(2), Article IX-C (for the COMELEC)
and Section 17, Article VI (for the Senate and House Electoral Tribunals) of the Constitution.
Besides, when the COMELEC, the HRET, and the SET decide election contests, their
decisions are still subject to judicial review – via a petition for certiorari filed by the proper
party – if there is a showing that the decision was rendered with grave abuse of discretion
tantamount to lack or excess of jurisdiction.46

It is also beyond cavil that when the Supreme Court, as PET, resolves a presidential or vice-
presidential election contest, it performs what is essentially a judicial power. In the landmark
case of Angara v. Electoral Commission,47Justice Jose P. Laurel enucleated that "it would be
inconceivable if the Constitution had not provided for a mechanism by which to direct the
course of government along constitutional channels." In fact, Angara pointed out that "[t]he
Constitution is a definition of the powers of government." And yet, at that time, the 1935
Constitution did not contain the expanded definition of judicial power found in Article VIII,
Section 1, paragraph 2 of the present Constitution.

With the explicit provision, the present Constitution has allocated to the Supreme Court, in
conjunction with latter’s exercise of judicial power inherent in all courts,48 the task of deciding
presidential and vice-presidential election contests, with full authority in the exercise thereof.
The power wielded by PET is a derivative of the plenary judicial power allocated to courts of
law, expressly provided in the Constitution. On the whole, the Constitution draws a thin, but,
nevertheless, distinct line between the PET and the Supreme Court.

If the logic of petitioner is to be followed, all Members of the Court, sitting in the Senate and
House Electoral Tribunals would violate the constitutional proscription found in Section 12,
Article VIII. Surely, the petitioner will be among the first to acknowledge that this is not so.
The Constitution which, in Section 17, Article VI, explicitly provides that three Supreme Court
Justices shall sit in the Senate and House Electoral Tribunals, respectively, effectively
exempts the Justices-Members thereof from the prohibition in Section 12, Article VIII. In the
same vein, it is the Constitution itself, in Section 4, Article VII, which exempts the Members
of the Court, constituting the PET, from the same prohibition.

We have previously declared that the PET is not simply an agency to which Members of the
Court were designated. Once again, the PET, as intended by the framers of the Constitution,
is to be an institution independent, but not separate, from the judicial department, i.e., the
Supreme Court. McCulloch v. State of Maryland49 proclaimed that "[a] power without the
means to use it, is a nullity." The vehicle for the exercise of this power, as intended by the
Constitution and specifically mentioned by the Constitutional Commissioners during the
discussions on the grant of power to this Court, is the PET. Thus, a microscopic view, like
the petitioner’s, should not constrict an absolute and constitutional grant of judicial power.

One final note. Although this Court has no control over contrary people and naysayers, we
reiterate a word of caution against the filing of baseless petitions which only clog the Court’s
docket. The petition in the instant case belongs to that classification.

WHEREFORE, the petition is DISMISSED. Costs against petitioner.

SO ORDERED.