Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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 P50
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 P72.11 billion and of the proposed
priority projects to be funded,115 reads:

MEMORANDUM FOR THE PRESIDENT

xxxx

SUBJECT: FY 2011 PROPOSED DISBURSEMENT ACCELERATION PROGRAM (PROJECTS

AND SOURCES OF FUNDS)

DATE: OCTOBER 12, 2011

Mr. President, this is to formally confirm your approval of the Disbursement Acceleration Program
totaling P72.11 billion. We are already working with all the agencies concerned for the immediate
execution of the projects therein.

A. Fund Sources for the Acceleration Program

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
70
review and presentation)

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 P1,600 M (i.e., P800 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 P1,000,000.00 threshold, saying that the amount was arbitrary and might not be
reasonable in the future. The Committee agreed to eliminate the P1,000,000.00 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 P1,600 M (i.e., P800 M x 2 quarters).

The petitioners assert that no law had authorized the withdrawal and transfer of unobligated
allotments and the pooling of unreleased appropriations; and that the unbridled withdrawal of
unobligated allotments and the retention of 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. This was the mandate of
1âwphi1

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 P144.4 billion worth of PAPs were implemented through the DAP.161

Of this amount P82.5 billion were released in 2011 and P54.8 billion in 2012.162 Sec. Abad has
reported that 9% of the total DAP releases were applied to the PAPs identified by the legislators.163

The petitioners disagree, however, and insist that the DAP supported the following PAPs that had
not been covered with appropriations in the respective GAAs, namely:

(i) P1.5 billion for the Cordillera People’s Liberation Army;

(ii) P1.8 billion for the Moro National Liberation Front;

(iii) P700 million for assistance to Quezon Province;164

(iv) P50 million to P100 (million) each to certain senators;165

(v) P10 billion for the relocation of families living along dangerous zones under the National
Housing Authority;

(vi) P10 billion and P20 billion equity infusion under the Bangko Sentral;

(vii) P5.4 billion landowners’ compensation under the Department of Agrarian Reform;

(viii) P8.6 billion for the ARMM comprehensive peace and development program;

(ix) P6.5 billion augmentation of LGU internal revenue allotments

(x) P5 billion for crucial projects like tourism road construction under the Department of
Tourism and the Department of Public Works and Highways;

(xi) P1.8 billion for the DAR-DPWH Tulay ng Pangulo;

(xii) P1.96 billion for the DOH-DPWH rehabilitation of regional health units; and

(xiii) P4 billion for the DepEd-PPP school infrastructure projects.166

In refutation, the OSG argues that a total of 116 DAP-financed PAPs were implemented, had
appropriation covers, and could properly be accounted for because the funds were released
following and pursuant to the standard practices adopted by the DBM.167 In support of its argument,
the OSG has submitted seven evidence packets containing memoranda, SAROs, and other
pertinent documents relative to the implementation and fund transfers under the DAP.168

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 P1.6 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 P537,910,000 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 to 177,406,000 1,887,365,000 49,090,000 2,113,861,000
Science
and Technology Activities

1. Central Office 1,554,238,000 1,554,238,000

a. Generation of new
knowledge and
technologies and
research
capability building in
priority areas identified
as
strategic to National
Development 537,910,000 537,910,000

Aside from this transfer under the DAP to the DREAM project exceeding by almost 300% the
appropriation by Congress for the program Generation of new knowledge and technologies and
research capability building in priority areas identified as strategic to National Development, the
Executive allotted funds for personnel services and capital outlays. The Executive thereby
substituted its will to that of Congress. Worse, the Executive had not earlier proposed any amount
for personnel services and capital outlays in the NEP that became the basis of the 2011 GAA.170

It is worth stressing in this connection that the failure of the GAAs to set aside any amounts for an
expense category sufficiently indicated that Congress purposely did not see fit to fund, much less
implement, the PAP concerned. This indication becomes clearer when even the President himself
did not recommend in the NEP to fund the PAP. The consequence was that any PAP requiring
expenditure that did not receive any appropriation under the GAAs could only be a new PAP, any
funding for which would go beyond the authority laid down by Congress in enacting the GAAs. That
happened in some instances under the DAP.

In relation to the December 22, 2011 SARO issued to the Philippine Council for Industry, Energy and
Emerging Technology Research and Development (DOST-PCIEETRD)171 for Establishment of the
Advanced Failure Analysis Laboratory, which reads:

APPROPRIATION PARTICULARS AMOUNT

CODE AUTHORIZED
Development, integration and coordination of the
National Research System for Industry, Energy and
A.02.a
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 P143,700,000.00 and P250,000,000.00 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)
OFFICE PURPOSE
RELEASED Reserve Releases
Imposed
Commission on IT Infrastructure Program and 11/11/11 143,700
Audit hiring of additional litigation
experts
Congress – Completion of the construction of 07/23/12 207,034 250,000
House of the Legislative Library and (Savings of HOR)
Representatives Archives Building/Congressional
e-library

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 P23.8 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 P19.419 billion compared to the full year program
of P5.5 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 P12.438 billion compared to the full year program
of P10.0198 billion for 2013.

Moreover, the National Government accounted for the sale of the right to build and operate the NAIA
expressway amounting to P11.0 billion in June 2013.199

The certifications reflected that by collecting dividends amounting to P23.8 billion in 2011, P19.419
billion in 2012, and P12.438 billion in 2013 the BTr had exceeded only the P5.5 billion in target
revenues in the form of dividends from stocks in each of 2011 and 2012, and only the P10 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. The DAP itself, as a policy, transcended a merely administrative
1avv phi1

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.

LUCAS P. BERSAMIN
Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice
 I join the Concurring and Dissenting
See Dissenting Opinion
Opinion of J. Del Castillo
ANTONIO T. CARPIO
PRESBITERO J. VELASCO, JR.
Associate Justice
Associate Justice

No part: See: Separate Opinion

TERSITA J. LEONARDO-DE CASTRO ARTURO D. BRION
Associate Justice Associate Justice

Pls. see separate concurring and

DIOSDADO M. PERALTA dissenting opinion
Associate Justice MARIANO C. DEL CASTILLO
Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

JOSE CATRAL MENDOZA BIENVENIDO L. REYES

Associate Justice Associate Justice

Pls. see Separate Concurring Opinion See separate concurring opinion

ESTELA M. PERLAS-BERNABE MARVIC MARIO VICTOR F. LEONEN
Associate Justice Associate Justice

CERTIFICATION

I certify that the conclusions in the above Decision had been reached in consultation before the
cases were assigned to the writer of the opinion of the court.

MARIA LOURDES P. A. SERENO

Chief Justice
 Republic of the Philippines
SUPREME COURT
Baguio City

EN BANC

G.R. No. 204819 April 8, 2014

JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and in behalf of their minor
children, LUCIA CARLOS IMBONG and BERNADETTE CARLOS IMBONG and MAGNIFICAT
CHILD DEVELOPMENT CENTER, INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports
and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

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

G.R. No. 204934

ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC. [ALFI], represented by its
President, Maria Concepcion S. Noche, Spouses Reynaldo S. Luistro & Rosie B . Luistro,
Jose S. Sandejas & Elenita S.A. Sandejas, Arturo M. Gorrez & Marietta C. Gorrez, Salvador S.
Mante, Jr. & Hazeleen L. Mante, Rolando M. Bautista & Maria Felisa S. Bautista, Desiderio
Racho & Traquilina Racho, F emand Antonio A. Tansingco & Carol Anne C. Tansingco for
themselves and on behalf of their minor children, Therese Antonette C. Tansingco, Lorenzo
Jose C. Tansingco, Miguel F emando C. Tangsingco, Carlo Josemaria C. Tansingco & Juan
Paolo C. Tansingco, Spouses Mariano V. Araneta & Eileen Z. Araneta for themselves and on
behalf of their minor children, Ramon Carlos Z. Araneta & Maya Angelica Z. Araneta, Spouses
Renato C. Castor & Mildred C. Castor for themselves and on behalf of their minor children,
Renz Jeffrey C. Castor, Joseph Ramil C. Castor, John Paul C. Castor & Raphael C. Castor,
Spouses Alexander R. Racho & Zara Z. Racho for themselves and on behalf of their minor
children Margarita Racho, Mikaela Racho, Martin Racho, Mari Racho & Manolo Racho,
Spouses Alfred R. Racho & Francine V. Racho for themselves and on behalf of their minor
children Michael Racho, Mariana Racho, Rafael Racho, Maxi Racho, Chessie Racho & Laura
Racho, Spouses David R. Racho & Armilyn A. Racho for themselves and on behalf of their
minor child Gabriel Racho, Mindy M. Juatas and on behalf of her minor children Elijah Gerald
Juatas and Elian Gabriel Juatas, Salvacion M. Monteiro, Emily R. Laws, Joseph R . Laws &
Katrina R. Laws, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary,
Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture
and Sports, HON. CORAZON SOLIMAN, Secretary, Department of Social Welfare and
Development, HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and Management,
HON. ARSENIO M. BALISACAN, Socio-Economic Planning Secretary and NEDA Director-
General, THE PHILIPPINE COMMISSION ON WOMEN, represented by its Chairperson,
Remedios lgnacio-Rikken, THE PHILIPPINE HEALTH INSURANCE CORPORATION,
represented by its President Eduardo Banzon, THE LEAGUE OF PROVINCES OF THE
PHILIPPINES, represented by its President Alfonso Umali, THE LEAGUE OF CITIES OF THE
PHILIPPINES, represented by its President Oscar Rodriguez, and THE LEAGUE OF
MUNICIPALITIES OF THE PHILIPPINES, represented by its President Donato
Marcos,Respondents.

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

G.R. No. 204957

TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and VALERIANO S. AVILA, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management; HON. ENRIQUE T. ONA, Secretary, Department of
Education; and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

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

G.R. No. 204988

SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr. Nestor B. Lumicao, M.D., as
President and in his personal capacity, ROSEVALE FOUNDATION INC., represented by Dr.
Rodrigo M. Alenton, M.D., as member of the school board and in his personal capacity,
ROSEMARIE R. ALENTON, IMELDA G. IBARRA, CPA, LOVENIAP. NACES, Phd., ANTHONY G.
NAGAC, EARL ANTHONY C. GAMBE and MARLON I. YAP,Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF
REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO
B. ABAD, Secretary, Department of Budget and Management; HON. ENRIQUE T. ONA,
Secretary, Department of Health; HON. ARMIN A. LUISTRO, Secretary, Department of
Education and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

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

G.R. No. 205003

EXPEDITO A. BUGARIN, JR., Petitioner,

vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, HON. SENATE
PRESIDENT, HON. SPEAKER OF THE HOUSE OF REPRESENTATIVES and HON. SOLICITOR
GENERAL, Respondents.

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

G.R. No. 205043

EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE APOSTOLATE OF THE

PHILIPPINES, Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE H. LAZO, DBM SECRETARY
FLORENCIO B. ABAD, DILG SECRETARY MANUELA. ROXAS II, DECS SECRETARY ARMIN A.
LUISTRO, Respondents.

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

G.R. No. 205138

PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein represented by its National

President, Atty. Ricardo M . Ribo, and in his own behalf, Atty. Lino E.A. Dumas, Romeo B.
Almonte, Osmundo C. Orlanes, Arsenio Z. Menor, Samuel J. Yap, Jaime F. Mateo, Rolly
Siguan, Dante E. Magdangal, Michael Eugenio O. Plana, Bienvenido C. Miguel, Jr., Landrito M.
Diokno and Baldomero Falcone, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, HON. MANUELA.
ROXAS II, Secretary, Department of Interior and Local Government, HON. CORAZON J.
SOLIMAN, Secretary, Department of Social Welfare and Development, HON. ARSENIO
BALISACAN, Director-General, National Economic and Development Authority, HON.
SUZETTE H. LAZO, Director-General, Food and Drugs Administration, THE BOARD OF
DIRECTORS, Philippine Health Insurance Corporation, and THE BOARD OF
COMMISSIONERS, Philippine Commission on Women, Respondents.

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

G.R. No. 205478

REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D., CYNTHIA T. DOMINGO, M.D.,

AND JOSEPHINE MILLADO-LUMITAO, M.D., collectively known as Doctors For Life, and
ANTHONY PEREZ, MICHAEL ANTHONY G. MAPA, CARLOS ANTONIO PALAD, WILFREDO
JOSE, CLAIRE NAVARRO, ANNA COSIO, and GABRIEL DY LIACCO collectively known as
Filipinos For Life, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary
of the Department of Budget and Management; HON. ENRIQUE T. ONA, Secretary of the
Department of Health; HON. ARMIN A. LUISTRO, Secretary of the Department of Education;
and HON. MANUELA. ROXAS II, Secretary of the Department of Interior and Local
Government, Respondents.

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

G.R. No. 205491

SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD & ALA F. PAGUIA, for
themselves, their Posterity, and the rest of Filipino posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic of the Philippines, Respondent.

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

G.R. No. 205720

PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by Loma Melegrito, as Executive

Director, and in her personal capacity, JOSELYN B. BASILIO, ROBERT Z. CORTES, ARIEL A.
CRISOSTOMO, JEREMY I. GATDULA, CRISTINA A. MONTES, RAUL ANTONIO A. NIDOY,
WINSTON CONRAD B. PADOJINOG, RUFINO L. POLICARPIO III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF
REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO
B. ABAD, Secretary, Department of Budget and Management, HON. ENRIQUE T. ONA,
Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of
Education and HON. MANUEL A. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

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

G.R. No. 206355

MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON PEDROSA, ATTY. CITA BORROMEO-
GARCIA, STELLAACEDERA, ATTY. BERTENI CATALUNA CAUSING, Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE SECRETARY, DEPARTMENT OF
HEALTH, DEPARTMENT OF EDUCATION, Respondents.
x---------------------------------x

G.R. No. 207111

JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY VICTORIO B. LUMICAO, JOSEPH

MARTIN Q. VERDEJO, ANTONIA EMMA R. ROXAS and LOTA LAT-GUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports
and HON. MANUEL A. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

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

G.R. No. 207172

COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN CARLOS ARTADI SARMIENTO
AND FRANCESCA ISABELLE BESINGA-SARMIENTO, AND SPOUSES LUIS FRANCIS A.
RODRIGO, JR. and DEBORAH MARIE VERONICA N. RODRIGO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports
and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

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

G.R. No. 207563

ALMARIM CENTI TILLAH and ABDULHUSSEIN M. KASHIM, Petitioners,

vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary of the
Department of Health, and HON. ARMIN A. LUISTRO,Secretary of the Department of Budget
and Management,Respondents.

DECISION

MENDOZA, J.:

Freedom of religion was accorded preferred status by the framers of our fundamental law. And this
Court has consistently affirmed this preferred status, well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs , and to live as he believes he ought to live, consistent with the liberty of others
and with the common good."1

To this day, poverty is still a major stumbling block to the nation's emergence as a developed
country, leaving our people beleaguered in a state of hunger, illiteracy and unemployment. While
governmental policies have been geared towards the revitalization of the economy, the bludgeoning
dearth in social services remains to be a problem that concerns not only the poor, but every member
of society. The government continues to tread on a trying path to the realization of its very purpose,
that is, the general welfare of the Filipino people and the development of the country as a whole. The
legislative branch, as the main facet of a representative government, endeavors to enact laws and
policies that aim to remedy looming societal woes, while the executive is closed set to fully
implement these measures and bring concrete and substantial solutions within the reach of Juan
dela Cruz. Seemingly distant is the judicial branch, oftentimes regarded as an inert governmental
body that merely casts its watchful eyes on clashing stakeholders until it is called upon to adjudicate.
Passive, yet reflexive when called into action, the Judiciary then willingly embarks on its solemn duty
to interpret legislation vis-a-vis the most vital and enduring principle that holds Philippine society
together - the supremacy of the Philippine Constitution.

Nothing has polarized the nation more in recent years than the issues of population growth control,
abortion and contraception. As in every democratic society, diametrically opposed views on the
subjects and their perceived consequences freely circulate in various media. From television
debates2 to sticker campaigns,3 from rallies by socio-political activists to mass gatherings organized
by members of the clergy4 - the clash between the seemingly antithetical ideologies of the religious
conservatives and progressive liberals has caused a deep division in every level of the society.
Despite calls to withhold support thereto, however, Republic Act (R.A.) No. 10354, otherwise known
as the Responsible Parenthood and Reproductive Health Act of 2012 (RH Law), was enacted by
Congress on December 21, 2012.

Shortly after the President placed his imprimatur on the said law, challengers from various sectors of
society came knocking on the doors of the Court, beckoning it to wield the sword that strikes down
constitutional disobedience. Aware of the profound and lasting impact that its decision may produce,
the Court now faces the iuris controversy, as presented in fourteen (14) petitions and two (2)
petitions- in-intervention, to wit:

(1) Petition for Certiorari and Prohibition,5 filed by spouses Attys. James M. Imbong and
Lovely Ann C. Imbong, in their personal capacities as citizens, lawyers and taxpayers and on
behalf of their minor children; and the Magnificat Child Leaming Center, Inc., a domestic,
privately-owned educational institution (Jmbong);

(2) Petition for Prohibition,6 filed by the Alliance for the Family Foundation Philippines, Inc.,
through its president, Atty. Maria Concepcion S. Noche7 and several others8 in their personal
capacities as citizens and on behalf of the generations unborn (ALFI);

(3) Petition for Certiorari,9 filed by the Task Force for Family and Life Visayas, Inc., and
Valeriano S. Avila, in their capacities as citizens and taxpayers (Task Force Family);

(4) Petition for Certiorari and Prohibition,10 filed by Serve Life Cagayan De Oro City,
Inc.,11 Rosevale Foundation, Inc.,12 a domestic, privately-owned educational institution, and
several others,13 in their capacities as citizens (Serve Life);

(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his capacity as a citizen (Bugarin);

(6) Petition for Certiorari and Prohibition,15 filed by Eduardo Olaguer and the Catholic
Xybrspace Apostolate of the Philippines,16 in their capacities as a citizens and taxpayers
(Olaguer);

(7) Petition for Certiorari and Prohibition,17 filed by the Philippine Alliance of Xseminarians
Inc.,18 and several others19 in their capacities as citizens and taxpayers (PAX);

(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and several others,21 in their capacities as
citizens and taxpayers (Echavez);

(9) Petition for Certiorari and Prohibition,22 filed by spouses Francisco and Maria Fenny C.
Tatad and Atty. Alan F. Paguia, in their capacities as citizens, taxpayers and on behalf of
those yet unborn. Atty. Alan F. Paguia is also proceeding in his capacity as a member of the
Bar (Tatad);

(10) Petition for Certiorari and Prohibition,23 filed by Pro-Life Philippines Foundation Inc.24 and
several others,25 in their capacities as citizens and taxpayers and on behalf of its associates
who are members of the Bar (Pro-Life);
 (11) Petition for Prohibition,26 filed by Millennium Saint Foundation, Inc.,27 Attys. Ramon
Pedrosa, Cita Borromeo-Garcia, Stella Acedera, and Berteni Catalufia Causing, in their
capacities as citizens, taxpayers and members of the Bar (MSF);

(12) Petition for Certiorari and Prohibition,28 filed by John Walter B. Juat and several
others,29 in their capacities as citizens (Juat) ;

(13) Petition for Certiorari and Prohibition,30 filed by Couples for Christ Foundation, Inc. and
several others,31in their capacities as citizens (CFC);

(14) Petition for Prohibition32 filed by Almarim Centi Tillah and Abdulhussein M. Kashim in
their capacities as citizens and taxpayers (Tillah); and

(15) Petition-In-Intervention,33 filed by Atty. Samson S. Alcantara in his capacity as a citizen

and a taxpayer (Alcantara); and

(16) Petition-In-Intervention,34 filed by Buhay Hayaang Yumabong (B UHAY) , an accredited

political party.

A perusal of the foregoing petitions shows that the petitioners are assailing the constitutionality of
RH Law on the following GROUNDS:

• The RH Law violates the right to life of the unborn. According to the petitioners,
notwithstanding its declared policy against abortion, the implementation of the RH Law would
authorize the purchase of hormonal contraceptives, intra-uterine devices and injectables
which are abortives, in violation of Section 12, Article II of the Constitution which guarantees
protection of both the life of the mother and the life of the unborn from conception.35

• The RH Law violates the right to health and the right to protection against hazardous
products. The petitioners posit that the RH Law provides universal access to contraceptives
which are hazardous to one's health, as it causes cancer and other health problems.36

• The RH Law violates the right to religious freedom. The petitioners contend that the RH
Law violates the constitutional guarantee respecting religion as it authorizes the use of public
funds for the procurement of contraceptives. For the petitioners, the use of public funds for
purposes that are believed to be contrary to their beliefs is included in the constitutional
mandate ensuring religious freedom.37

It is also contended that the RH Law threatens conscientious objectors of criminal prosecution,
imprisonment and other forms of punishment, as it compels medical practitioners 1] to refer patients
who seek advice on reproductive health programs to other doctors; and 2] to provide full and correct
information on reproductive health programs and service, although it is against their religious beliefs
and convictions.38

In this connection, Section 5 .23 of the Implementing Rules and Regulations of the RH Law (RH-
IRR),39 provides that skilled health professionals who are public officers such as, but not limited to,
Provincial, City, or Municipal Health Officers, medical officers, medical specialists, rural health
physicians, hospital staff nurses, public health nurses, or rural health midwives, who are specifically
charged with the duty to implement these Rules, cannot be considered as conscientious objectors.40

It is also argued that the RH Law providing for the formulation of mandatory sex education in schools
should not be allowed as it is an affront to their religious beliefs.41

While the petit10ners recognize that the guarantee of religious freedom is not absolute, they argue
that the RH Law fails to satisfy the "clear and present danger test" and the "compelling state interest
test" to justify the regulation of the right to free exercise of religion and the right to free speech.42
 • The RH Law violates the constitutional provision on involuntary servitude. According to the
petitioners, the RH Law subjects medical practitioners to involuntary servitude because, to
be accredited under the PhilHealth program, they are compelled to provide forty-eight (48)
hours of pro bona services for indigent women, under threat of criminal prosecution,
imprisonment and other forms of punishment.43

The petitioners explain that since a majority of patients are covered by PhilHealth, a medical
practitioner would effectively be forced to render reproductive health services since the lack of
PhilHealth accreditation would mean that the majority of the public would no longer be able to avail
of the practitioners services.44

• The RH Law violates the right to equal protection of the law. It is claimed that the RH Law
discriminates against the poor as it makes them the primary target of the government
program that promotes contraceptive use. The petitioners argue that, rather than promoting
reproductive health among the poor, the RH Law seeks to introduce contraceptives that
would effectively reduce the number of the poor.45

• The RH Law is "void-for-vagueness" in violation of the due process clause of the

Constitution. In imposing the penalty of imprisonment and/or fine for "any violation," it is
vague because it does not define the type of conduct to be treated as "violation" of the RH
Law.46

In this connection, it is claimed that "Section 7 of the RH Law violates the right to due process by
removing from them (the people) the right to manage their own affairs and to decide what kind of
health facility they shall be and what kind of services they shall offer."47 It ignores the management
prerogative inherent in corporations for employers to conduct their affairs in accordance with their
own discretion and judgment.

• The RH Law violates the right to free speech. To compel a person to explain a full range of
family planning methods is plainly to curtail his right to expound only his own preferred way
of family planning. The petitioners note that although exemption is granted to institutions
owned and operated by religious groups, they are still forced to refer their patients to another
healthcare facility willing to perform the service or procedure.48

• The RH Law intrudes into the zone of privacy of one's family protected by the Constitution.
It is contended that the RH Law providing for mandatory reproductive health education
intrudes upon their constitutional right to raise their children in accordance with their beliefs.49

It is claimed that, by giving absolute authority to the person who will undergo reproductive health
procedure, the RH Law forsakes any real dialogue between the spouses and impedes the right of
spouses to mutually decide on matters pertaining to the overall well-being of their family. In the same
breath, it is also claimed that the parents of a child who has suffered a miscarriage are deprived of
parental authority to determine whether their child should use contraceptives.50

• The RH Law violates the constitutional principle of non-delegation of legislative authority.

The petitioners question the delegation by Congress to the FDA of the power to determine
whether a product is non-abortifacient and to be included in the Emergency Drugs List
(EDL).51

• The RH Law violates the one subject/one bill rule provision under Section 26( 1 ), Article VI
of the Constitution.52

• The RH Law violates Natural Law.53

• The RH Law violates the principle of Autonomy of Local Government Units (LGUs) and the
Autonomous Region of Muslim Mindanao {ARMM). It is contended that the RH Law,
providing for reproductive health measures at the local government level and the ARMM,
infringes upon the powers devolved to LGUs and the ARMM under the Local Government
Code and R.A . No. 9054.54
Various parties also sought and were granted leave to file their respective comments-in-intervention
in defense of the constitutionality of the RH Law. Aside from the Office of the Solicitor General
(OSG) which commented on the petitions in behalf of the respondents,55 Congressman Edcel C.
Lagman,56 former officials of the Department of Health Dr. Esperanza I. Cabral, Jamie Galvez-Tan,
and Dr. Alberto G. Romualdez,57 the Filipino Catholic Voices for Reproductive Health (C4RH),58 Ana
Theresa "Risa" Hontiveros,59 and Atty. Joan De Venecia60 also filed their respective Comments-in-
Intervention in conjunction with several others. On June 4, 2013, Senator Pia Juliana S. Cayetano
was also granted leave to intervene.61

The respondents, aside from traversing the substantive arguments of the petitioners, pray for the
dismissal of the petitions for the principal reasons that 1] there is no actual case or controversy and,
therefore, the issues are not yet ripe for judicial determination.; 2] some petitioners lack standing to
question the RH Law; and 3] the petitions are essentially petitions for declaratory relief over which
the Court has no original jurisdiction.

Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the assailed legislation took
effect.

On March 19, 2013, after considering the issues and arguments raised, the Court issued the Status
Quo Ante Order (SQAO), enjoining the effects and implementation of the assailed legislation for a
period of one hundred and twenty (120) days, or until July 17, 2013.62

On May 30, 2013, the Court held a preliminary conference with the counsels of the parties to
determine and/or identify the pertinent issues raised by the parties and the sequence by which these
issues were to be discussed in the oral arguments. On July 9 and 23, 2013, and on August 6, 13,
and 27, 2013, the cases were heard on oral argument. On July 16, 2013, the SQAO was ordered
extended until further orders of the Court.63

Thereafter, the Court directed the parties to submit their respective memoranda within sixty (60)
days and, at the same time posed several questions for their clarification on some contentions of the
parties.64

The Status Quo Ante

(Population, Contraceptive and Reproductive Health Laws

Prior to the RH Law

Long before the incipience of the RH Law, the country has allowed the sale, dispensation and
distribution of contraceptive drugs and devices. As far back as June 18, 1966, the country enacted
R.A. No. 4729 entitled "An Act to Regu,late the Sale, Dispensation, and/or Distribution of
Contraceptive Drugs and Devices." Although contraceptive drugs and devices were allowed, they
could not be sold, dispensed or distributed "unless such sale, dispensation and distribution is by a
duly licensed drug store or pharmaceutical company and with the prescription of a qualified medical
practitioner."65

In addition, R.A. No. 5921,66 approved on June 21, 1969, contained provisions relative to "dispensing
of abortifacients or anti-conceptional substances and devices." Under Section 37 thereof, it was
provided that "no drug or chemical product or device capable of provoking abortion or preventing
conception as classified by the Food and Drug Administration shall be delivered or sold to any
person without a proper prescription by a duly licensed physician."

On December 11, 1967, the Philippines, adhering to the UN Declaration on Population, which
recognized that the population problem should be considered as the principal element for long-term
economic development, enacted measures that promoted male vasectomy and tubal ligation to
mitigate population growth.67 Among these measures included R.A. No. 6365, approved on August
16, 1971, entitled "An Act Establishing a National Policy on Population, Creating the Commission on
Population and for Other Purposes. " The law envisioned that "family planning will be made part of a
broad educational program; safe and effective means will be provided to couples desiring to space
or limit family size; mortality and morbidity rates will be further reduced."

To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos issued Presidential
Decree. (P.D.) No. 79,68 dated December 8, 1972, which, among others, made "family planning a
part of a broad educational program," provided "family planning services as a part of over-all health
care," and made "available all acceptable methods of contraception, except abortion, to all Filipino
citizens desirous of spacing, limiting or preventing pregnancies."

Through the years, however, the use of contraceptives and family planning methods evolved from
being a component of demographic management, to one centered on the promotion of public health,
particularly, reproductive health.69 Under that policy, the country gave priority to one's right to freely
choose the method of family planning to be adopted, in conformity with its adherence to the
commitments made in the International Conference on Population and Development.70 Thus, on
August 14, 2009, the country enacted R.A. No. 9710 or "The Magna Carta for Women, " which,
among others, mandated the State to provide for comprehensive health services and programs for
women, including family planning and sex education.71

The RH Law

Despite the foregoing legislative measures, the population of the country kept on galloping at an
uncontrollable pace. From a paltry number of just over 27 million Filipinos in 1960, the population of
the country reached over 76 million in the year 2000 and over 92 million in 2010.72 The executive and
the legislative, thus, felt that the measures were still not adequate. To rein in the problem, the RH
Law was enacted to provide Filipinos, especially the poor and the marginalized, access and
information to the full range of modem family planning methods, and to ensure that its objective to
provide for the peoples' right to reproductive health be achieved. To make it more effective, the RH
Law made it mandatory for health providers to provide information on the full range of modem family
planning methods, supplies and services, and for schools to provide reproductive health education.
To put teeth to it, the RH Law criminalizes certain acts of refusals to carry out its mandates.

Stated differently, the RH Law is an enhancement measure to fortify and make effective the current
laws on contraception, women's health and population control.

Prayer of the Petitioners - Maintain the Status Quo

The petitioners are one in praying that the entire RH Law be declared unconstitutional. Petitioner
ALFI, in particular, argues that the government sponsored contraception program, the very essence
of the RH Law, violates the right to health of women and the sanctity of life, which the State is
mandated to protect and promote. Thus, ALFI prays that "the status quo ante - the situation prior to
the passage of the RH Law - must be maintained."73 It explains:

x x x. The instant Petition does not question contraception and contraceptives per se. As provided
under Republic Act No. 5921 and Republic Act No. 4729, the sale and distribution of contraceptives
are prohibited unless dispensed by a prescription duly licensed by a physician. What the Petitioners
find deplorable and repugnant under the RH Law is the role that the State and its agencies - the
entire bureaucracy, from the cabinet secretaries down to the barangay officials in the remotest areas
of the country - is made to play in the implementation of the contraception program to the fullest
extent possible using taxpayers' money. The State then will be the funder and provider of all forms of
family planning methods and the implementer of the program by ensuring the widespread
dissemination of, and universal access to, a full range of family planning methods, devices and
supplies.74

ISSUES

After a scrutiny of the various arguments and contentions of the parties, the Court has synthesized
and refined them to the following principal issues:

I. PROCEDURAL: Whether the Court may exercise its power of judicial review over the controversy.
 1] Power of Judicial Review

2] Actual Case or Controversy

3] Facial Challenge

4] Locus Standi

5] Declaratory Relief

6] One Subject/One Title Rule

II. SUBSTANTIVE: Whether the RH law is unconstitutional:

1] Right to Life

2] Right to Health

3] Freedom of Religion and the Right to Free Speech

4] The Family

5] Freedom of Expression and Academic Freedom

6] Due Process

7] Equal Protection

8] Involuntary Servitude

9] Delegation of Authority to the FDA

10] Autonomy of Local Govemments/ARMM

DISCUSSION

Before delving into the constitutionality of the RH Law and its implementing rules, it behooves the
Court to resolve some procedural impediments.

I. PROCEDURAL ISSUE: Whether the Court can exercise its power of judicial review over the
controversy.

The Power of Judicial Review

In its attempt to persuade the Court to stay its judicial hand, the OSG asserts that it should submit to
the legislative and political wisdom of Congress and respect the compromises made in the crafting of
the RH Law, it being "a product of a majoritarian democratic process"75 and "characterized by an
inordinate amount of transparency."76 The OSG posits that the authority of the Court to review social
legislation like the RH Law by certiorari is "weak," since the Constitution vests the discretion to
implement the constitutional policies and positive norms with the political departments, in particular,
with Congress.77 It further asserts that in view of the Court's ruling in Southern Hemisphere v. Anti-
Terrorism Council,78 the remedies of certiorari and prohibition utilized by the petitioners are improper
to assail the validity of the acts of the legislature.79

Moreover, the OSG submits that as an "as applied challenge," it cannot prosper considering that the
assailed law has yet to be enforced and applied to the petitioners, and that the government has yet
to distribute reproductive health devices that are abortive. It claims that the RH Law cannot be
challenged "on its face" as it is not a speech-regulating measure.80

In many cases involving the determination of the constitutionality of the actions of the Executive and
the Legislature, it is often sought that the Court temper its exercise of judicial power and accord due
respect to the wisdom of its co-equal branch on the basis of the principle of separation of powers. To
be clear, the separation of powers is a fundamental principle in our system of government, which
obtains not through express provision but by actual division in our Constitution. Each department of
the government has exclusive cognizance of matters within its jurisdiction and is supreme within its
own sphere.81

Thus, the 1987 Constitution provides that: (a) the legislative power shall be vested in the Congress
of the Philippines;82 (b) the executive power shall be vested in the President of the Philippines;83 and
(c) the judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.84 The Constitution has truly blocked out with deft strokes and in bold lines, the
allotment of powers among the three branches of government.85

In its relationship with its co-equals, the Judiciary recognizes the doctrine of separation of powers
which imposes upon the courts proper restraint, born of the nature of their functions and of their
respect for the other branches of government, in striking down the acts of the Executive or the
Legislature as unconstitutional. Verily, the policy is a harmonious blend of courtesy and caution.86

It has also long been observed, however, that in times of social disquietude or political instability, the
great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated.87 In
order to address this, the Constitution impresses upon the Court to respect the acts performed by a
co-equal branch done within its sphere of competence and authority, but at the same time, allows it
to cross the line of separation - but only at a very limited and specific point - to determine whether
the acts of the executive and the legislative branches are null because they were undertaken with
grave abuse of discretion.88 Thus, while the Court may not pass upon questions of wisdom, justice or
expediency of the RH Law, it may do so where an attendant unconstitutionality or grave abuse of
discretion results.89 The Court must demonstrate its unflinching commitment to protect those
cherished rights and principles embodied in the Constitution.

In this connection, it bears adding that while the scope of judicial power of review may be limited, the
Constitution makes no distinction as to the kind of legislation that may be subject to judicial scrutiny,
be it in the form of social legislation or otherwise. The reason is simple and goes back to the earlier
point. The Court may pass upon the constitutionality of acts of the legislative and the executive
branches, since its duty is not to review their collective wisdom but, rather, to make sure that they
have acted in consonance with their respective authorities and rights as mandated of them by the
Constitution. If after said review, the Court finds no constitutional violations of any sort, then, it has
no more authority of proscribing the actions under review.90 This is in line with Article VIII, Section 1
of the Constitution which expressly provides:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may
be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. [Emphases supplied]

As far back as Tanada v. Angara,91 the Court has unequivocally declared that certiorari, prohibition
and mandamus are appropriate remedies to raise constitutional issues and to review and/or
prohibit/nullify, when proper, acts of legislative and executive officials, as there is no other plain,
speedy or adequate remedy in the ordinary course of law. This ruling was later on applied in
Macalintal v. COMELEC,92 Aldaba v. COMELEC,93 Magallona v. Ermita,94 and countless others. In
Tanada, the Court wrote:
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a justiciable controversy. Where an action of the legislative
branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact
the duty of the judiciary to settle the dispute. "The question thus posed is judicial rather than political.
The duty (to adjudicate) remains to assure that the supremacy of the Constitution is upheld. " Once a
"controversy as to the application or interpretation of constitutional provision is raised before this
Court (as in the instant case), it becomes a legal issue which the Court is bound by constitutional
mandate to decide. [Emphasis supplied]

In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "judicial review is
essential for the maintenance and enforcement of the separation of powers and the balancing of
powers among the three great departments of government through the definition and maintenance of
the boundaries of authority and control between them. To him, judicial review is the chief, indeed the
only, medium of participation - or instrument of intervention - of the judiciary in that balancing
operation.95

Lest it be misunderstood, it bears emphasizing that the Court does not have the unbridled authority
to rule on just any and every claim of constitutional violation. Jurisprudence is replete with the rule
that the power of judicial review is limited by four exacting requisites, viz : (a) there must be an
actual case or controversy; (b) the petitioners must possess locus standi; (c) the question of
constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must
be the lis mota of the case.96

Actual Case or Controversy

Proponents of the RH Law submit that the subj ect petitions do not present any actual case or
controversy because the RH Law has yet to be implemented.97 They claim that the questions raised
by the petitions are not yet concrete and ripe for adjudication since no one has been charged with
violating any of its provisions and that there is no showing that any of the petitioners' rights has been
adversely affected by its operation.98 In short, it is contended that judicial review of the RH Law is
premature.

An actual case or controversy means an existing case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory, lest the decision of the court would amount to an
advisory opinion.99 The rule is that courts do not sit to adjudicate mere academic questions to satisfy
scholarly interest, however intellectually challenging. The controversy must be justiciable-definite
and concrete, touching on the legal relations of parties having adverse legal interests. In other
words, the pleadings must show an active antagonistic assertion of a legal right, on the one hand,
and a denial thereof, on the other; that is, it must concern a real, tangible and not merely a
theoretical question or issue. There ought to be an actual and substantial controversy admitting of
specific relief through a decree conclusive in nature, as distinguished from an opinion advising what
the law would be upon a hypothetical state of facts.100

Corollary to the requirement of an actual case or controversy is the requirement of ripeness.101 A

question is ripe for adjudication when the act being challenged has had a direct adverse effect on
the individual challenging it. For a case to be considered ripe for adjudication, it is a prerequisite that
something has then been accomplished or performed by either branch before a court may come into
the picture, and the petitioner must allege the existence of an immediate or threatened injury to
himself as a result of the challenged action. He must show that he has sustained or is immediately in
danger of sustaining some direct injury as a result of the act complained of102

In The Province of North Cotabato v. The Government of the Republic of the Philippines,103 where the
constitutionality of an unimplemented Memorandum of Agreement on the Ancestral Domain (MOA-
AD) was put in question, it was argued that the Court has no authority to pass upon the issues
raised as there was yet no concrete act performed that could possibly violate the petitioners' and the
intervenors' rights. Citing precedents, the Court ruled that the fact of the law or act in question being
not yet effective does not negate ripeness. Concrete acts under a law are not necessary to render
the controversy ripe. Even a singular violation of the Constitution and/or the law is enough to awaken
judicial duty.
In this case, the Court is of the view that an actual case or controversy exists and that the same is
ripe for judicial determination. Considering that the RH Law and its implementing rules have already
taken effect and that budgetary measures to carry out the law have already been passed, it is
evident that the subject petitions present a justiciable controversy. As stated earlier, when an action
of the legislative branch is seriously alleged to have infringed the Constitution, it not only becomes a
right, but also a duty of the Judiciary to settle the dispute.104

Moreover, the petitioners have shown that the case is so because medical practitioners or medical
providers are in danger of being criminally prosecuted under the RH Law for vague violations
thereof, particularly public health officers who are threatened to be dismissed from the service with
forfeiture of retirement and other benefits. They must, at least, be heard on the matter NOW.

Facial Challenge

The OSG also assails the propriety of the facial challenge lodged by the subject petitions,
contending that the RH Law cannot be challenged "on its face" as it is not a speech regulating
measure.105

The Court is not persuaded.

In United States (US) constitutional law, a facial challenge, also known as a First Amendment
Challenge, is one that is launched to assail the validity of statutes concerning not only protected
speech, but also all other rights in the First Amendment.106 These include religious freedom, freedom
of the press, and the right of the people to peaceably assemble, and to petition the Government for a
redress of grievances.107 After all, the fundamental right to religious freedom, freedom of the press
and peaceful assembly are but component rights of the right to one's freedom of expression, as they
are modes which one's thoughts are externalized.

In this jurisdiction, the application of doctrines originating from the U.S. has been generally
maintained, albeit with some modifications. While this Court has withheld the application of facial
challenges to strictly penal statues,108 it has expanded its scope to cover statutes not only regulating
free speech, but also those involving religious freedom, and other fundamental rights.109 The
underlying reason for this modification is simple. For unlike its counterpart in the U.S., this Court,
under its expanded jurisdiction, is mandated by the Fundamental Law not only to settle actual
controversies involving rights which are legally demandable and enforceable, but also to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government.110 Verily, the framers of Our
Constitution envisioned a proactive Judiciary, ever vigilant with its duty to maintain the supremacy of
the Constitution.

Consequently, considering that the foregoing petitions have seriously alleged that the constitutional
human rights to life, speech and religion and other fundamental rights mentioned above have been
violated by the assailed legislation, the Court has authority to take cognizance of these kindred
petitions and to determine if the RH Law can indeed pass constitutional scrutiny. To dismiss these
petitions on the simple expedient that there exist no actual case or controversy, would diminish this
Court as a reactive branch of government, acting only when the Fundamental Law has been
transgressed, to the detriment of the Filipino people.

Locus Standi

The OSG also attacks the legal personality of the petitioners to file their respective petitions. It
contends that the "as applied challenge" lodged by the petitioners cannot prosper as the assailed
law has yet to be enforced and applied against them,111 and the government has yet to distribute
reproductive health devices that are abortive.112

The petitioners, for their part, invariably invoke the "transcendental importance" doctrine and their
status as citizens and taxpayers in establishing the requisite locus standi.
Locus standi or legal standing is defined as a personal and substantial interest in a case such that
the party has sustained or will sustain direct injury as a result of the challenged governmental
act.113 It requires a personal stake in the outcome of the controversy as to assure the concrete
adverseness which sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions.114

In relation to locus standi, the "as applied challenge" embodies the rule that one can challenge the
constitutionality of a statute only if he asserts a violation of his own rights. The rule prohibits one
from challenging the constitutionality of the statute grounded on a violation of the rights of third
persons not before the court. This rule is also known as the prohibition against third-party standing.115

Transcendental Importance

Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of procedure,
hence, can be relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers, and legislators
when the public interest so requires, such as when the matter is of transcendental importance, of
overreaching significance to society, or of paramount public interest."116

In Coconut Oil Refiners Association, Inc. v. Torres,117 the Court held that in cases of paramount
importance where serious constitutional questions are involved, the standing requirement may be
relaxed and a suit may be allowed to prosper even where there is no direct injury to the party
claiming the right of judicial review. In the first Emergency Powers Cases,118 ordinary citizens and
taxpayers were allowed to question the constitutionality of several executive orders although they
had only an indirect and general interest shared in common with the public.

With these said, even if the constitutionality of the RH Law may not be assailed through an "as-
applied challenge, still, the Court has time and again acted liberally on the locus s tandi requirement.
It has accorded certain individuals standing to sue, not otherwise directly injured or with material
interest affected by a Government act, provided a constitutional issue of transcendental importance
is invoked. The rule on locus standi is, after all, a procedural technicality which the Court has, on
more than one occasion, waived or relaxed, thus allowing non-traditional plaintiffs, such as
concerned citizens, taxpayers, voters or legislators, to sue in the public interest, albeit they may not
have been directly injured by the operation of a law or any other government act. As held in Jaworski
v. PAGCOR:119

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

In view of the seriousness, novelty and weight as precedents, not only to the public, but also to the
bench and bar, the issues raised must be resolved for the guidance of all. After all, the RH Law
drastically affects the constitutional provisions on the right to life and health, the freedom of religion
and expression and other constitutional rights. Mindful of all these and the fact that the issues of
contraception and reproductive health have already caused deep division among a broad spectrum
of society, the Court entertains no doubt that the petitions raise issues of transcendental importance
warranting immediate court adjudication. More importantly, considering that it is the right to life of the
mother and the unborn which is primarily at issue, the Court need not wait for a life to be taken away
before taking action.

The Court cannot, and should not, exercise judicial restraint at this time when rights enshrined in the
Constitution are being imperilled to be violated. To do so, when the life of either the mother or her
child is at stake, would lead to irreparable consequences.
Declaratory Relief

The respondents also assail the petitions because they are essentially petitions for declaratory relief
over which the Court has no original jurisdiction.120 Suffice it to state that most of the petitions are
praying for injunctive reliefs and so the Court would just consider them as petitions for prohibition
under Rule 65, over which it has original jurisdiction. Where the case has far-reaching implications
and prays for injunctive reliefs, the Court may consider them as petitions for prohibition under Rule
65.121

One Subject-One Title

The petitioners also question the constitutionality of the RH Law, claiming that it violates Section
26(1 ), Article VI of the Constitution,122 prescribing the one subject-one title rule. According to them,
being one for reproductive health with responsible parenthood, the assailed legislation violates the
constitutional standards of due process by concealing its true intent - to act as a population control
measure.123

To belittle the challenge, the respondents insist that the RH Law is not a birth or population control
measure,124 and that the concepts of "responsible parenthood" and "reproductive health" are both
interrelated as they are inseparable.125

Despite efforts to push the RH Law as a reproductive health law, the Court sees it as principally a
population control measure. The corpus of the RH Law is geared towards the reduction of the
country's population. While it claims to save lives and keep our women and children healthy, it also
promotes pregnancy-preventing products. As stated earlier, the RH Law emphasizes the need to
provide Filipinos, especially the poor and the marginalized, with access to information on the full
range of modem family planning products and methods. These family planning methods, natural or
modem, however, are clearly geared towards the prevention of pregnancy.

For said reason, the manifest underlying objective of the RH Law is to reduce the number of births in
the country.

It cannot be denied that the measure also seeks to provide pre-natal and post-natal care as well. A
large portion of the law, however, covers the dissemination of information and provisions on access
to medically-safe, non-abortifacient, effective, legal, affordable, and quality reproductive health care
services, methods, devices, and supplies, which are all intended to prevent pregnancy.

The Court, thus, agrees with the petitioners' contention that the whole idea of contraception
pervades the entire RH Law. It is, in fact, the central idea of the RH Law.126 Indeed, remove the
provisions that refer to contraception or are related to it and the RH Law loses its very
foundation.127 As earlier explained, "the other positive provisions such as skilled birth attendance,
maternal care including pre-and post-natal services, prevention and management of reproductive
tract infections including HIV/AIDS are already provided for in the Magna Carta for Women."128

Be that as it may, the RH Law does not violate the one subject/one bill rule. In Benjamin E.
Cawaling, Jr. v. The Commission on Elections and Rep. Francis Joseph G Escudero, it was written:

It is well-settled that the "one title-one subject" rule does not require the Congress to employ in the
title of the enactment language of such precision as to mirror, fully index or catalogue all the
contents and the minute details therein. The rule is sufficiently complied with if the title is
comprehensive enough as to include the general object which the statute seeks to effect, and where,
as here, the persons interested are informed of the nature, scope and consequences of the
proposed law and its operation. Moreover, this Court has invariably adopted a liberal rather than
technical construction of the rule "so as not to cripple or impede legislation." [Emphases supplied]

In this case, a textual analysis of the various provisions of the law shows that both "reproductive
health" and "responsible parenthood" are interrelated and germane to the overriding objective to
control the population growth. As expressed in the first paragraph of Section 2 of the RH Law:
SEC. 2. Declaration of Policy. - The State recognizes and guarantees the human rights of all
persons including their right to equality and nondiscrimination of these rights, the right to sustainable
human development, the right to health which includes reproductive health, the right to education
and information, and the right to choose and make decisions for themselves in accordance with their
religious convictions, ethics, cultural beliefs, and the demands of responsible parenthood.

The one subject/one title rule expresses the principle that the title of a law must not be "so uncertain
that the average person reading it would not be informed of the purpose of the enactment or put on
inquiry as to its contents, or which is misleading, either in referring to or indicating one subject where
another or different one is really embraced in the act, or in omitting any expression or indication of
the real subject or scope of the act."129

Considering the close intimacy between "reproductive health" and "responsible parenthood" which
bears to the attainment of the goal of achieving "sustainable human development" as stated under
its terms, the Court finds no reason to believe that Congress intentionally sought to deceive the
public as to the contents of the assailed legislation.

II - SUBSTANTIVE ISSUES:

1-The Right to Life

Position of the Petitioners

The petitioners assail the RH Law because it violates the right to life and health of the unborn child
under Section 12, Article II of the Constitution. The assailed legislation allowing access to
abortifacients/abortives effectively sanctions abortion.130

According to the petitioners, despite its express terms prohibiting abortion, Section 4(a) of the RH
Law considers contraceptives that prevent the fertilized ovum to reach and be implanted in the
mother's womb as an abortifacient; thus, sanctioning contraceptives that take effect after fertilization
and prior to implantation, contrary to the intent of the Framers of the Constitution to afford protection
to the fertilized ovum which already has life.

They argue that even if Section 9 of the RH Law allows only "non-abortifacient" hormonal
contraceptives, intrauterine devices, injectables and other safe, legal, non-abortifacient and effective
family planning products and supplies, medical research shows that contraceptives use results in
abortion as they operate to kill the fertilized ovum which already has life.131

As it opposes the initiation of life, which is a fundamental human good, the petitioners assert that the
State sanction of contraceptive use contravenes natural law and is an affront to the dignity of man.132

Finally, it is contended that since Section 9 of the RH Law requires the Food and Drug
Administration (FDA) to certify that the product or supply is not to be used as an abortifacient, the
assailed legislation effectively confirms that abortifacients are not prohibited. Also considering that
the FDA is not the agency that will actually supervise or administer the use of these products and
supplies to prospective patients, there is no way it can truthfully make a certification that it shall not
be used for abortifacient purposes.133

Position of the Respondents

For their part, the defenders of the RH Law point out that the intent of the Framers of the
Constitution was simply the prohibition of abortion. They contend that the RH Law does not violate
the Constitution since the said law emphasizes that only "non-abortifacient" reproductive health care
services, methods, devices products and supplies shall be made accessible to the public.134

According to the OSG, Congress has made a legislative determination that contraceptives are not
abortifacients by enacting the RH Law. As the RH Law was enacted with due consideration to
various studies and consultations with the World Health Organization (WHO) and other experts in
the medical field, it is asserted that the Court afford deference and respect to such a determination
and pass judgment only when a particular drug or device is later on determined as an abortive.135

For his part, respondent Lagman argues that the constitutional protection of one's right to life is not
violated considering that various studies of the WHO show that life begins from the implantation of
the fertilized ovum. Consequently, he argues that the RH Law is constitutional since the law
specifically provides that only contraceptives that do not prevent the implantation of the fertilized
ovum are allowed.136

The Court's Position

It is a universally accepted principle that every human being enjoys the right to life.137

Even if not formally established, the right to life, being grounded on natural law, is inherent and,
therefore, not a creation of, or dependent upon a particular law, custom, or belief. It precedes and
transcends any authority or the laws of men.

In this jurisdiction, the right to life is given more than ample protection. Section 1, Article III of the
Constitution provides:

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor
shall any person be denied the equal protection of the laws.

As expounded earlier, the use of contraceptives and family planning methods in the Philippines is
not of recent vintage. From the enactment of R.A. No. 4729, entitled "An Act To Regulate The Sale,
Dispensation, and/or Distribution of Contraceptive Drugs and Devices "on June 18, 1966, prescribing
rules on contraceptive drugs and devices which prevent fertilization,138 to the promotion of male
vasectomy and tubal ligation,139 and the ratification of numerous international agreements, the
country has long recognized the need to promote population control through the use of
contraceptives in order to achieve long-term economic development. Through the years, however,
the use of contraceptives and other family planning methods evolved from being a component of
demographic management, to one centered on the promotion of public health, particularly,
reproductive health.140

This has resulted in the enactment of various measures promoting women's rights and health and
the overall promotion of the family's well-being. Thus, aside from R.A. No. 4729, R.A. No. 6365 or
"The Population Act of the Philippines" and R.A. No. 9710, otherwise known as the "The Magna
Carta of Women" were legislated. Notwithstanding this paradigm shift, the Philippine national
population program has always been grounded two cornerstone principles: "principle of no-abortion"
and the "principle of non-coercion."141 As will be discussed later, these principles are not merely
grounded on administrative policy, but rather, originates from the constitutional protection expressly
provided to afford protection to life and guarantee religious freedom.

When Life Begins*

Majority of the Members of the Court are of the position that the question of when life begins is a
scientific and medical issue that should not be decided, at this stage, without proper hearing and
evidence. During the deliberation, however, it was agreed upon that the individual members of the
Court could express their own views on this matter.

In this regard, the ponente, is of the strong view that life begins at fertilization.

In answering the question of when life begins, focus should be made on the particular phrase of
Section 12 which reads:

Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the
family as a basic autonomous social institution. It shall equally protect the life of the mother and the
life of the unborn from conception. The natural and primary right and duty of parents in the rearing of
the youth for civic efficiency and the development of moral character shall receive the support of the
Government.

Textually, the Constitution affords protection to the unborn from conception. This is undisputable
because before conception, there is no unborn to speak of. For said reason, it is no surprise that the
Constitution is mute as to any proscription prior to conception or when life begins. The problem has
arisen because, amazingly, there are quarters who have conveniently disregarded the scientific fact
that conception is reckoned from fertilization. They are waving the view that life begins at
implantation. Hence, the issue of when life begins.

In a nutshell, those opposing the RH Law contend that conception is synonymous with "fertilization"
of the female ovum by the male sperm.142 On the other side of the spectrum are those who assert
that conception refers to the "implantation" of the fertilized ovum in the uterus.143

Plain and Legal Meaning

It is a canon in statutory construction that the words of the Constitution should be interpreted in their
plain and ordinary meaning. As held in the recent case of Chavez v. Judicial Bar Council:144

One of the primary and basic rules in statutory construction is that where the words of a statute are
clear, plain, and free from ambiguity, it must be given its literal meaning and applied without
attempted interpretation. It is a well-settled principle of constitutional construction that the language
employed in the Constitution must be given their ordinary meaning except where technical terms are
employed. As much as possible, the words of the Constitution should be understood in the sense
they have in common use. What it says according to the text of the provision to be construed
compels acceptance and negates the power of the courts to alter it, based on the postulate that the
framers and the people mean what they say. Verba legis non est recedendum - from the words of a
statute there should be no departure.

The raison d' etre for the rule is essentially two-fold: First, because it is assumed that the words in
which constitutional provisions are couched express the objective sought to be attained; and second,
because the Constitution is not primarily a lawyer's document but essentially that of the people, in
whose consciousness it should ever be present as an important condition for the rule of law to
prevail.

In conformity with the above principle, the traditional meaning of the word "conception" which, as
described and defined by all reliable and reputable sources, means that life begins at fertilization.

Webster's Third New International Dictionary describes it as the act of becoming pregnant, formation
of a viable zygote; the fertilization that results in a new entity capable of developing into a being like
its parents.145

Black's Law Dictionary gives legal meaning to the term "conception" as the fecundation of the female
ovum by the male spermatozoon resulting in human life capable of survival and maturation under
normal conditions.146

Even in jurisprudence, an unborn child has already a legal personality. In Continental Steel
Manufacturing Corporation v. Hon. Accredited Voluntary Arbitrator Allan S. Montano,147 it was written:

Life is not synonymous with civil personality. One need not acquire civil personality first before
he/she could die. Even a child inside the womb already has life. No less than the Constitution
recognizes the life of the unborn from conception, that the State must protect equally with the life of
the mother. If the unborn already has life, then the cessation thereof even prior to the child being
delivered, qualifies as death. [Emphases in the original]

In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the US Supreme Court, said that the
State "has respect for human life at all stages in the pregnancy" and "a legitimate and substantial
interest in preserving and promoting fetal life." Invariably, in the decision, the fetus was referred to,
or cited, as a baby or a child.149

Intent of the Framers

Records of the Constitutional Convention also shed light on the intention of the Framers regarding
the term "conception" used in Section 12, Article II of the Constitution. From their deliberations, it
clearly refers to the moment of "fertilization." The records reflect the following:

Rev. Rigos: In Section 9, page 3, there is a sentence which reads:

"The State shall equally protect the life of the mother and the life of the unborn from the moment of
conception."

When is the moment of conception?

xxx

Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is fertilized by the sperm
that there is human life. x x x.150

xxx

As to why conception is reckoned from fertilization and, as such, the beginning of human life, it was
explained:

Mr. Villegas: I propose to review this issue in a biological manner. The first question that needs to be
answered is: Is the fertilized ovum alive? Biologically categorically says yes, the fertilized ovum is
alive. First of all, like all living organisms, it takes in nutrients which it processes by itself. It begins
doing this upon fertilization. Secondly, as it takes in these nutrients, it grows from within. Thirdly, it
multiplies itself at a geometric rate in the continuous process of cell division. All these processes are
vital signs of life. Therefore, there is no question that biologically the fertilized ovum has life.

The second question: Is it human? Genetics gives an equally categorical "yes." At the moment of
conception, the nuclei of the ovum and the sperm rupture. As this happens 23 chromosomes from
the ovum combine with 23 chromosomes of the sperm to form a total of 46 chromosomes. A
chromosome count of 46 is found only - and I repeat, only in human cells. Therefore, the fertilized
ovum is human.

Since these questions have been answered affirmatively, we must conclude that if the fertilized
ovum is both alive and human, then, as night follows day, it must be human life. Its nature is
human.151

Why the Constitution used the phrase "from the moment of conception" and not "from the moment of
fertilization" was not because of doubt when human life begins, but rather, because:

Mr. Tingson: x x x x the phrase from the moment of conception" was described by us here before
with the scientific phrase "fertilized ovum" may be beyond the comprehension of some people; we
want to use the simpler phrase "from the moment of conception."152

Thus, in order to ensure that the fertilized ovum is given ample protection under the Constitution, it
was discussed:

Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose of writing a
Constitution, without specifying "from the moment of conception."

Mr. Davide: I would not subscribe to that particular view because according to the Commissioner's
own admission, he would leave it to Congress to define when life begins. So, Congress can define
life to begin from six months after fertilization; and that would really be very, very, dangerous. It is
now determined by science that life begins from the moment of conception. There can be no doubt
about it. So we should not give any doubt to Congress, too.153

Upon further inquiry, it was asked:

Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point. Actually, that is one of
the questions I was going to raise during the period of interpellations but it has been expressed
already. The provision, as proposed right now states:

The State shall equally protect the life of the mother and the life of the unborn from the moment of
conception.

When it speaks of "from the moment of conception," does this mean when the egg meets the
sperm?

Mr. Villegas: Yes, the ovum is fertilized by the sperm.

Mr. Gascon: Therefore that does not leave to Congress the right to determine whether certain
contraceptives that we know today are abortifacient or not because it is a fact that some of the so-
called contraceptives deter the rooting of the ovum in the uterus. If fertilization has already occurred,
the next process is for the fertilized ovum to travel towards the uterus and to take root. What
happens with some contraceptives is that they stop the opportunity for the fertilized ovum to reach
the uterus. Therefore, if we take the provision as it is proposed, these so called contraceptives
should be banned.

Mr. Villegas: Yes, if that physical fact is established, then that is what is called abortifacient and,
therefore, would be unconstitutional and should be banned under this provision.

Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to state whether or not these
certain contraceptives are abortifacient. Scientifically and based on the provision as it is now
proposed, they are already considered abortifacient.154

From the deliberations above-quoted, it is apparent that the Framers of the Constitution emphasized
that the State shall provide equal protection to both the mother and the unborn child from the earliest
opportunity of life, that is, upon fertilization or upon the union of the male sperm and the female
ovum. It is also apparent is that the Framers of the Constitution intended that to prohibit Congress
from enacting measures that would allow it determine when life begins.

Equally apparent, however, is that the Framers of the Constitution did not intend to ban all
contraceptives for being unconstitutional. In fact, Commissioner Bernardo Villegas, spearheading the
need to have a constitutional provision on the right to life, recognized that the determination of
whether a contraceptive device is an abortifacient is a question of fact which should be left to the
courts to decide on based on established evidence.155

From the discussions above, contraceptives that kill or destroy the fertilized ovum should be deemed
an abortive and thus prohibited. Conversely, contraceptives that actually prevent the union of the
male sperm and the female ovum, and those that similarly take action prior to fertilization should be
deemed non-abortive, and thus, constitutionally permissible.

As emphasized by the Framers of the Constitution:

xxx xxx xxx

Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am pro-life, to the point that I
would like not only to protect the life of the unborn, but also the lives of the millions of people in the
world by fighting for a nuclear-free world. I would just like to be assured of the legal and pragmatic
implications of the term "protection of the life of the unborn from the moment of conception." I raised
some of these implications this afternoon when I interjected in the interpellation of Commissioner
Regalado. I would like to ask that question again for a categorical answer.

I mentioned that if we institutionalize the term "the life of the unborn from the moment of conception"
we are also actually saying "no," not "maybe," to certain contraceptives which are already being
encouraged at this point in time. Is that the sense of the committee or does it disagree with me?

Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be preventive. There is no
unborn yet. That is yet unshaped.

Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some contraceptives, such
as the intra-uterine device which actually stops the egg which has already been fertilized from taking
route to the uterus. So if we say "from the moment of conception," what really occurs is that some of
these contraceptives will have to be unconstitutionalized.

Mr. Azcuna: Yes, to the extent that it is after the fertilization.

Mr. Gascon: Thank you, Mr. Presiding Officer.156

The fact that not all contraceptives are prohibited by the 1987 Constitution is even admitted by
petitioners during the oral arguments. There it was conceded that tubal ligation, vasectomy, even
condoms are not classified as abortifacients.157

Atty. Noche:

Before the union of the eggs, egg and the sperm, there is no life yet.

Justice Bersamin:

There is no life.

Atty. Noche:

So, there is no life to be protected.

Justice Bersamin:

To be protected.

Atty. Noche:

Under Section 12, yes.

Justice Bersamin:

So you have no objection to condoms?

Atty. Noche:

Not under Section 12, Article II.

Justice Bersamin:

Even if there is already information that condoms sometimes have porosity?

Atty. Noche:
Well, yes, Your Honor, there are scientific findings to that effect, Your Honor, but I am discussing
here Section 12, Article II, Your Honor, yes.

Justice Bersamin:

Alright.

Atty. Noche:

And it's not, I have to admit it's not an abortifacient, Your Honor.158

Medical Meaning

That conception begins at fertilization is not bereft of medical foundation. Mosby s Medical, Nursing,
and Allied Health Dictionary defines conception as "the beginning of pregnancy usually taken to be
the instant a spermatozoon enters an ovum and forms a viable zygote."159

It describes fertilization as "the union of male and female gametes to form a zygote from which the
embryo develops."160

The Textbook of Obstetrics (Physiological & Pathological Obstetrics),161 used by medical schools in
the Philippines, also concludes that human life (human person) begins at the moment of fertilization
with the union of the egg and the sperm resulting in the formation of a new individual, with a unique
genetic composition that dictates all developmental stages that ensue.

Similarly, recent medical research on the matter also reveals that: "Human development begins after
the union of male and female gametes or germ cells during a process known as fertilization
(conception). Fertilization is a sequence of events that begins with the contact of a sperm
(spermatozoon) with a secondary oocyte (ovum) and ends with the fusion of their pronuclei (the
haploid nuclei of the sperm and ovum) and the mingling of their chromosomes to form a new cell.
This fertilized ovum, known as a zygote, is a large diploid cell that is the beginning, or primordium, of
a human being."162

The authors of Human Embryology & Teratology163 mirror the same position. They wrote: "Although
life is a continuous process, fertilization is a critical landmark because, under ordinary
circumstances, a new, genetically distinct human organism is thereby formed.... The combination of
23 chromosomes present in each pronucleus results in 46 chromosomes in the zygote. Thus the
diploid number is restored and the embryonic genome is formed. The embryo now exists as a
genetic unity."

In support of the RH Bill, The Philippine Medical Association came out with a "Paper on the
Reproductive Health Bill (Responsible Parenthood Bill)" and therein concluded that:

CONCLUSION

The PMA throws its full weight in supporting the RH Bill at the same time that PMA maintains its
strong position that fertilization is sacred because it is at this stage that conception, and thus human
life, begins. Human lives are sacred from the moment of conception, and that destroying those new
lives is never licit, no matter what the purported good outcome would be. In terms of biology and
human embryology, a human being begins immediately at fertilization and after that, there is no point
along the continuous line of human embryogenesis where only a "potential" human being can be
posited. Any philosophical, legal, or political conclusion cannot escape this objective scientific fact.

The scientific evidence supports the conclusion that a zygote is a human organism and that the life
of a new human being commences at a scientifically well defined "moment of conception." This
conclusion is objective, consistent with the factual evidence, and independent of any specific ethical,
moral, political, or religious view of human life or of human embryos.164
Conclusion: The Moment of Conception is Reckoned from
Fertilization

In all, whether it be taken from a plain meaning, or understood under medical parlance, and more
importantly, following the intention of the Framers of the Constitution, the undeniable conclusion is
that a zygote is a human organism and that the life of a new human being commences at a
scientifically well-defined moment of conception, that is, upon fertilization.

For the above reasons, the Court cannot subscribe to the theory advocated by Hon. Lagman that life
begins at implantation.165 According to him, "fertilization and conception are two distinct and
successive stages in the reproductive process. They are not identical and synonymous."166 Citing a
letter of the WHO, he wrote that "medical authorities confirm that the implantation of the fertilized
ovum is the commencement of conception and it is only after implantation that pregnancy can be
medically detected."167

This theory of implantation as the beginning of life is devoid of any legal or scientific mooring. It does
not pertain to the beginning of life but to the viability of the fetus. The fertilized ovum/zygote is not an
inanimate object - it is a living human being complete with DNA and 46 chromosomes.168 Implantation
has been conceptualized only for convenience by those who had population control in mind. To
adopt it would constitute textual infidelity not only to the RH Law but also to the Constitution.

Not surprisingly, even the OSG does not support this position.

If such theory would be accepted, it would unnervingly legitimize the utilization of any drug or device
that would prevent the implantation of the fetus at the uterine wall. It would be provocative and
further aggravate religious-based divisiveness.

It would legally permit what the Constitution proscribes - abortion and abortifacients.

The RH Law and Abortion

The clear and unequivocal intent of the Framers of the 1987 Constitution in protecting the life of the
unborn from conception was to prevent the Legislature from enacting a measure legalizing abortion.
It was so clear that even the Court cannot interpret it otherwise. This intent of the Framers was
captured in the record of the proceedings of the 1986 Constitutional Commission. Commissioner
Bernardo Villegas, the principal proponent of the protection of the unborn from conception,
explained:

The intention .. .is to make sure that there would be no pro-abortion laws ever passed by Congress
or any pro-abortion decision passed by the Supreme Court.169

A reading of the RH Law would show that it is in line with this intent and actually proscribes abortion.
While the Court has opted not to make any determination, at this stage, when life begins, it finds that
the RH Law itself clearly mandates that protection be afforded from the moment of fertilization. As
pointed out by Justice Carpio, the RH Law is replete with provisions that embody the policy of the
law to protect to the fertilized ovum and that it should be afforded safe travel to the uterus for
implantation.170

Moreover, the RH Law recognizes that abortion is a crime under Article 256 of the Revised Penal
Code, which penalizes the destruction or expulsion of the fertilized ovum. Thus:

1] xx x.

Section 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as
follows:

xxx.
(q) Reproductive health care refers to the access to a full range of methods, facilities, services and
supplies that contribute to reproductive health and well-being by addressing reproductive health-
related problems. It also includes sexual health, the purpose of which is the enhancement of life and
personal relations. The elements of reproductive health care include the following:

xxx.

(3) Proscription of abortion and management of abortion complications;

xxx.

2] xx x.

Section 4. x x x.

(s) Reproductive health rights refers to the rights of individuals and couples, to decide freely and
responsibly whether or not to have children; the number, spacing and timing of their children; to
make other decisions concerning reproduction, free of discrimination, coercion and violence; to have
the information and means to do so; and to attain the highest standard of sexual health and
reproductive health: Provided, however, That reproductive health rights do not include abortion, and
access to abortifacients.

3] xx x.

SEC. 29. Repealing Clause. - Except for prevailing laws against abortion, any law, presidential
decree or issuance, executive order, letter of instruction, administrative order, rule or regulation
contrary to or is inconsistent with the provisions of this Act including Republic Act No. 7392,
otherwise known as the Midwifery Act, is hereby repealed, modified or amended accordingly.

The RH Law and Abortifacients

In carrying out its declared policy, the RH Law is consistent in prohibiting abortifacients. To be clear,
Section 4(a) of the RH Law defines an abortifacient as:

Section 4. Definition of Terms - x x x x

(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside
the mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's
womb upon determination of the FDA.

As stated above, the RH Law mandates that protection must be afforded from the moment of
fertilization. By using the word " or," the RH Law prohibits not only drugs or devices that prevent
implantation, but also those that induce abortion and those that induce the destruction of a fetus
inside the mother's womb. Thus, an abortifacient is any drug or device that either:

(a) Induces abortion; or

(b) Induces the destruction of a fetus inside the mother's womb; or

(c) Prevents the fertilized ovum to reach and be implanted in the mother's womb, upon
determination of the FDA.

Contrary to the assertions made by the petitioners, the Court finds that the RH Law, consistent with
the Constitution, recognizes that the fertilized ovum already has life and that the State has a
bounden duty to protect it. The conclusion becomes clear because the RH Law, first, prohibits any
drug or device that induces abortion (first kind), which, as discussed exhaustively above, refers to
that which induces the killing or the destruction of the fertilized ovum, and, second, prohibits any
drug or device the fertilized ovum to reach and be implanted in the mother's womb (third kind).
By expressly declaring that any drug or device that prevents the fertilized ovum to reach and be
implanted in the mother's womb is an abortifacient (third kind), the RH Law does not intend to mean
at all that life only begins only at implantation, as Hon. Lagman suggests. It also does not declare
either that protection will only be given upon implantation, as the petitioners likewise suggest.
Rather, it recognizes that: one, there is a need to protect the fertilized ovum which already has life,
and two, the fertilized ovum must be protected the moment it becomes existent - all the way until it
reaches and implants in the mother's womb. After all, if life is only recognized and afforded
protection from the moment the fertilized ovum implants - there is nothing to prevent any drug or
device from killing or destroying the fertilized ovum prior to implantation.

From the foregoing, the Court finds that inasmuch as it affords protection to the fertilized ovum, the
RH Law does not sanction abortion. To repeat, it is the Court's position that life begins at fertilization,
not at implantation. When a fertilized ovum is implanted in the uterine wall , its viability is sustained
but that instance of implantation is not the point of beginning of life. It started earlier. And as defined
by the RH Law, any drug or device that induces abortion, that is, which kills or destroys the fertilized
ovum or prevents the fertilized ovum to reach and be implanted in the mother's womb, is an
abortifacient.

Proviso Under Section 9 of the RH Law

This notwithstanding, the Court finds that the proviso under Section 9 of the law that "any product or
supply included or to be included in the EDL must have a certification from the FDA that said product
and supply is made available on the condition that it is not to be used as an abortifacient" as empty
as it is absurd. The FDA, with all its expertise, cannot fully attest that a drug or device will not all be
used as an abortifacient, since the agency cannot be present in every instance when the
contraceptive product or supply will be used.171

Pursuant to its declared policy of providing access only to safe, legal and non-abortifacient
contraceptives, however, the Court finds that the proviso of Section 9, as worded, should bend to the
legislative intent and mean that "any product or supply included or to be included in the EDL must
have a certification from the FDA that said product and supply is made available on the condition
that it cannot be used as abortifacient." Such a construction is consistent with the proviso under the
second paragraph of the same section that provides:

Provided, further, That the foregoing offices shall not purchase or acquire by any means emergency
contraceptive pills, postcoital pills, abortifacients that will be used for such purpose and their other
forms or equivalent.

Abortifacients under the RH-IRR

At this juncture, the Court agrees with ALFI that the authors of the RH-IRR gravely abused their
office when they redefined the meaning of abortifacient. The RH Law defines "abortifacient" as
follows:

SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as
follows:

(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside
the mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's
womb upon determination of the FDA.

Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:

Section 3.01 For purposes of these Rules, the terms shall be defined as follows:

a) Abortifacient refers to any drug or device that primarily induces abortion or the destruction of a
fetus inside the mother's womb or the prevention of the fertilized ovum to reach and be implanted in
the mother's womb upon determination of the Food and Drug Administration (FDA). [Emphasis
supplied]

Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:

j) Contraceptive refers to any safe, legal, effective and scientifically proven modern family planning
method, device, or health product, whether natural or artificial, that prevents pregnancy but does not
primarily destroy a fertilized ovum or prevent a fertilized ovum from being implanted in the mother's
womb in doses of its approved indication as determined by the Food and Drug Administration (FDA).

The above-mentioned section of the RH-IRR allows "contraceptives" and recognizes as

"abortifacient" only those that primarily induce abortion or the destruction of a fetus inside the
mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's
womb.172

This cannot be done.

In this regard, the observations of Justice Brion and Justice Del Castillo are well taken. As they
pointed out, with the insertion of the word "primarily," Section 3.0l(a) and G) of the RH-IRR173 must be
struck down for being ultra vires.

Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G) of the RH-IRR is indeed
ultra vires. It contravenes Section 4(a) of the RH Law and should, therefore, be declared invalid.
There is danger that the insertion of the qualifier "primarily" will pave the way for the approval of
contraceptives which may harm or destroy the life of the unborn from conception/fertilization in
violation of Article II, Section 12 of the Constitution. With such qualification in the RH-IRR, it appears
to insinuate that a contraceptive will only be considered as an "abortifacient" if its sole known effect
is abortion or, as pertinent here, the prevention of the implantation of the fertilized ovum.

For the same reason, this definition of "contraceptive" would permit the approval of contraceptives
which are actually abortifacients because of their fail-safe mechanism.174

Also, as discussed earlier, Section 9 calls for the certification by the FDA that these contraceptives
cannot act as abortive. With this, together with the definition of an abortifacient under Section 4 (a) of
the RH Law and its declared policy against abortion, the undeniable conclusion is that
contraceptives to be included in the PNDFS and the EDL will not only be those contraceptives that
do not have the primary action of causing abortion or the destruction of a fetus inside the mother's
womb or the prevention of the fertilized ovum to reach and be implanted in the mother's womb, but
also those that do not have the secondary action of acting the same way.

Indeed, consistent with the constitutional policy prohibiting abortion, and in line with the principle that
laws should be construed in a manner that its constitutionality is sustained, the RH Law and its
implementing rules must be consistent with each other in prohibiting abortion. Thus, the word "
primarily" in Section 3.0l(a) and G) of the RH-IRR should be declared void. To uphold the validity of
Section 3.0l(a) and G) of the RH-IRR and prohibit only those contraceptives that have the primary
effect of being an abortive would effectively "open the floodgates to the approval of contraceptives
which may harm or destroy the life of the unborn from conception/fertilization in violation of Article II,
Section 12 of the Constitution."175

To repeat and emphasize, in all cases, the "principle of no abortion" embodied in the constitutional
protection of life must be upheld.

2-The Right to Health

The petitioners claim that the RH Law violates the right to health because it requires the inclusion of
hormonal contraceptives, intrauterine devices, injectables and family products and supplies in the
National Drug Formulary and the inclusion of the same in the regular purchase of essential
medicines and supplies of all national hospitals.176Citing various studies on the matter, the petitioners
posit that the risk of developing breast and cervical cancer is greatly increased in women who use
oral contraceptives as compared to women who never use them. They point out that the risk is
decreased when the use of contraceptives is discontinued. Further, it is contended that the use of
combined oral contraceptive pills is associated with a threefold increased risk of venous
thromboembolism, a twofold increased risk of ischematic stroke, and an indeterminate effect on risk
of myocardial infarction.177 Given the definition of "reproductive health" and "sexual health" under
Sections 4(p)178 and (w)179 of the RH Law, the petitioners assert that the assailed legislation only
seeks to ensure that women have pleasurable and satisfying sex lives.180

The OSG, however, points out that Section 15, Article II of the Constitution is not self-executory, it
being a mere statement of the administration's principle and policy. Even if it were self-executory, the
OSG posits that medical authorities refute the claim that contraceptive pose a danger to the health of
women.181

The Court's Position

A component to the right to life is the constitutional right to health. In this regard, the Constitution is
replete with provisions protecting and promoting the right to health. Section 15, Article II of the
Constitution provides:

Section 15. The State shall protect and promote the right to health of the people and instill health
consciousness among them.

A portion of Article XIII also specifically provides for the States' duty to provide for the health of the
people, viz:

HEALTH

Section 11. The State shall adopt an integrated and comprehensive approach to health development
which shall endeavor to make essential goods, health and other social services available to all the
people at affordable cost. There shall be priority for the needs of the underprivileged, sick, elderly,
disabled, women, and children. The State shall endeavor to provide free medical care to paupers.

Section 12. The State shall establish and maintain an effective food and drug regulatory system and
undertake appropriate health, manpower development, and research, responsive to the country's
health needs and problems.

Section 13. The State shall establish a special agency for disabled person for their rehabilitation,
self-development, and self-reliance, and their integration into the mainstream of society.

Finally, Section 9, Article XVI provides:

Section 9. The State shall protect consumers from trade malpractices and from substandard or
hazardous products.

Contrary to the respondent's notion, however, these provisions are self-executing. Unless the
provisions clearly express the contrary, the provisions of the Constitution should be considered self-
executory. There is no need for legislation to implement these self-executing provisions.182 In Manila
Prince Hotel v. GSIS,183 it was stated:

x x x Hence, unless it is expressly provided that a legislative act is necessary to enforce a

constitutional mandate, the presumption now is that all provisions of the constitution are self-
executing. If the constitutional provisions are treated as requiring legislation instead of self-
executing, the legislature would have the power to ignore and practically nullify the mandate of the
fundamental law. This can be cataclysmic. That is why the prevailing view is, as it has always been,
that –
... in case of doubt, the Constitution should be considered self-executing rather than non-self-
executing. . . . Unless the contrary is clearly intended, the provisions of the Constitution should be
considered self-executing, as a contrary rule would give the legislature discretion to determine when,
or whether, they shall be effective. These provisions would be subordinated to the will of the
lawmaking body, which could make them entirely meaningless by simply refusing to pass the
needed implementing statute. (Emphases supplied)

This notwithstanding, it bears mentioning that the petitioners, particularly ALFI, do not question
contraception and contraceptives per se.184 In fact, ALFI prays that the status quo - under R.A. No.
5921 and R.A. No. 4729, the sale and distribution of contraceptives are not prohibited when they are
dispensed by a prescription of a duly licensed by a physician - be maintained.185

The legislative intent in the enactment of the RH Law in this regard is to leave intact the provisions of
R.A. No. 4729. There is no intention at all to do away with it. It is still a good law and its requirements
are still in to be complied with. Thus, the Court agrees with the observation of respondent Lagman
that the effectivity of the RH Law will not lead to the unmitigated proliferation of contraceptives since
the sale, distribution and dispensation of contraceptive drugs and devices will still require the
prescription of a licensed physician. With R.A. No. 4729 in place, there exists adequate safeguards
to ensure the public that only contraceptives that are safe are made available to the public. As aptly
explained by respondent Lagman:

D. Contraceptives cannot be
dispensed and used without
prescription

108. As an added protection to voluntary users of contraceptives, the same cannot be dispensed
and used without prescription.

109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation, and/ or Distribution of
Contraceptive Drugs and Devices" and Republic Act No. 5921 or "An Act Regulating the Practice of
Pharmacy and Setting Standards of Pharmaceutical Education in the Philippines and for Other
Purposes" are not repealed by the RH Law and the provisions of said Acts are not inconsistent with
the RH Law.

110. Consequently, the sale, distribution and dispensation of contraceptive drugs and devices are
particularly governed by RA No. 4729 which provides in full:

"Section 1. It shall be unlawful for any person, partnership, or corporation, to sell, dispense or
otherwise distribute whether for or without consideration, any contraceptive drug or device, unless
such sale, dispensation or distribution is by a duly licensed drug store or pharmaceutical company
and with the prescription of a qualified medical practitioner.

"Sec. 2 . For the purpose of this Act:

"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion which is used
exclusively for the purpose of preventing fertilization of the female ovum: and

"(b) "Contraceptive device" is any instrument, device, material, or agent introduced into the
female reproductive system for the primary purpose of preventing conception.

"Sec. 3 Any person, partnership, or corporation, violating the provisions of this Act shall be punished
with a fine of not more than five hundred pesos or an imprisonment of not less than six months or
more than one year or both in the discretion of the Court.

"This Act shall take effect upon its approval.

"Approved: June 18, 1966"

111. Of the same import, but in a general manner, Section 25 of RA No. 5921 provides:

"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No medicine, pharmaceutical, or
drug of whatever nature and kind or device shall be compounded, dispensed, sold or resold, or
otherwise be made available to the consuming public except through a prescription drugstore or
hospital pharmacy, duly established in accordance with the provisions of this Act.

112. With all of the foregoing safeguards, as provided for in the RH Law and other relevant statutes,
the pretension of the petitioners that the RH Law will lead to the unmitigated proliferation of
contraceptives, whether harmful or not, is completely unwarranted and baseless.186 [Emphases in the
Original. Underlining supplied.]

In Re: Section 10 of the RH Law:

The foregoing safeguards should be read in connection with Section 10 of the RH Law which
provides:

SEC. 10. Procurement and Distribution of Family Planning Supplies. - The DOH shall procure,
distribute to LGUs and monitor the usage of family planning supplies for the whole country. The
DOH shall coordinate with all appropriate local government bodies to plan and implement this
procurement and distribution program. The supply and budget allotments shall be based on, among
others, the current levels and projections of the following:

(a) Number of women of reproductive age and couples who want to space or limit their
children;

(b) Contraceptive prevalence rate, by type of method used; and

(c) Cost of family planning supplies.

Provided, That LGUs may implement its own procurement, distribution and monitoring program
consistent with the overall provisions of this Act and the guidelines of the DOH.

Thus, in the distribution by the DOH of contraceptive drugs and devices, it must consider the
provisions of R.A. No. 4729, which is still in effect, and ensure that the contraceptives that it will
procure shall be from a duly licensed drug store or pharmaceutical company and that the actual
dispensation of these contraceptive drugs and devices will done following a prescription of a
qualified medical practitioner. The distribution of contraceptive drugs and devices must not be
indiscriminately done. The public health must be protected by all possible means. As pointed out by
Justice De Castro, a heavy responsibility and burden are assumed by the government in supplying
contraceptive drugs and devices, for it may be held accountable for any injury, illness or loss of life
resulting from or incidental to their use.187

At any rate, it bears pointing out that not a single contraceptive has yet been submitted to the FDA
pursuant to the RH Law. It behooves the Court to await its determination which drugs or devices are
declared by the FDA as safe, it being the agency tasked to ensure that food and medicines available
to the public are safe for public consumption. Consequently, the Court finds that, at this point, the
attack on the RH Law on this ground is premature. Indeed, the various kinds of contraceptives must
first be measured up to the constitutional yardstick as expounded herein, to be determined as the
case presents itself.

At this point, the Court is of the strong view that Congress cannot legislate that hormonal
contraceptives and intra-uterine devices are safe and non-abortifacient. The first sentence of Section
9 that ordains their inclusion by the National Drug Formulary in the EDL by using the mandatory
"shall" is to be construed as operative only after they have been tested, evaluated, and approved by
the FDA. The FDA, not Congress, has the expertise to determine whether a particular hormonal
contraceptive or intrauterine device is safe and non-abortifacient. The provision of the third sentence
concerning the requirements for the inclusion or removal of a particular family planning supply from
the EDL supports this construction.

Stated differently, the provision in Section 9 covering the inclusion of hormonal contraceptives, intra-
uterine devices, injectables, and other safe, legal, non-abortifacient and effective family planning
products and supplies by the National Drug Formulary in the EDL is not mandatory. There must first
be a determination by the FDA that they are in fact safe, legal, non-abortifacient and effective family
planning products and supplies. There can be no predetermination by Congress that the gamut of
contraceptives are "safe, legal, non-abortifacient and effective" without the proper scientific
examination.

3 -Freedom of Religion
and the Right to Free Speech

Position of the Petitioners:

1. On Contraception

While contraceptives and procedures like vasectomy and tubal ligation are not covered by the
constitutional proscription, there are those who, because of their religious education and
background, sincerely believe that contraceptives, whether abortifacient or not, are evil. Some of
these are medical practitioners who essentially claim that their beliefs prohibit not only the use of
contraceptives but also the willing participation and cooperation in all things dealing with
contraceptive use. Petitioner PAX explained that "contraception is gravely opposed to marital
chastity, it is contrary to the good of the transmission of life, and to the reciprocal self-giving of the
spouses; it harms true love and denies the sovereign rule of God in the transmission of Human
life."188

The petitioners question the State-sponsored procurement of contraceptives, arguing that the
expenditure of their taxes on contraceptives violates the guarantee of religious freedom since
contraceptives contravene their religious beliefs.189

2. On Religious Accommodation and

The Duty to Refer

Petitioners Imbong and Luat note that while the RH Law attempts to address religious sentiments by
making provisions for a conscientious objector, the constitutional guarantee is nonetheless violated
because the law also imposes upon the conscientious objector the duty to refer the patient seeking
reproductive health services to another medical practitioner who would be able to provide for the
patient's needs. For the petitioners, this amounts to requiring the conscientious objector to cooperate
with the very thing he refuses to do without violating his/her religious beliefs.190

They further argue that even if the conscientious objector's duty to refer is recognized, the
recognition is unduly limited, because although it allows a conscientious objector in Section 23 (a)(3)
the option to refer a patient seeking reproductive health services and information - no escape is
afforded the conscientious objector in Section 23 (a)(l) and (2), i.e. against a patient seeking
reproductive health procedures. They claim that the right of other individuals to conscientiously
object, such as: a) those working in public health facilities referred to in Section 7; b) public officers
involved in the implementation of the law referred to in Section 23(b ); and c) teachers in public
schools referred to in Section 14 of the RH Law, are also not recognize.191

Petitioner Echavez and the other medical practitioners meanwhile, contend that the requirement to
refer the matter to another health care service provider is still considered a compulsion on those
objecting healthcare service providers. They add that compelling them to do the act against their will
violates the Doctrine of Benevolent Neutrality. Sections 9, 14 and 1 7 of the law are too secular that
they tend to disregard the religion of Filipinos. Authorizing the use of contraceptives with abortive
effects, mandatory sex education, mandatory pro-bono reproductive health services to indigents
encroach upon the religious freedom of those upon whom they are required.192
Petitioner CFC also argues that the requirement for a conscientious objector to refer the person
seeking reproductive health care services to another provider infringes on one's freedom of religion
as it forces the objector to become an unwilling participant in the commission of a serious sin under
Catholic teachings. While the right to act on one's belief may be regulated by the State, the acts
prohibited by the RH Law are passive acts which produce neither harm nor injury to the public.193

Petitioner CFC adds that the RH Law does not show compelling state interest to justify regulation of
religious freedom because it mentions no emergency, risk or threat that endangers state interests. It
does not explain how the rights of the people (to equality, non-discrimination of rights, sustainable
human development, health, education, information, choice and to make decisions according to
religious convictions, ethics, cultural beliefs and the demands of responsible parenthood) are being
threatened or are not being met as to justify the impairment of religious freedom.194

Finally, the petitioners also question Section 15 of the RH Law requiring would-be couples to attend
family planning and responsible parenthood seminars and to obtain a certificate of compliance. They
claim that the provision forces individuals to participate in the implementation of the RH Law even if
it contravenes their religious beliefs.195 As the assailed law dangles the threat of penalty of fine and/or
imprisonment in case of non-compliance with its provisions, the petitioners claim that the RH Law
forcing them to provide, support and facilitate access and information to contraception against their
beliefs must be struck down as it runs afoul to the constitutional guarantee of religious freedom.

The Respondents' Positions

The respondents, on the other hand, contend that the RH Law does not provide that a specific mode
or type of contraceptives be used, be it natural or artificial. It neither imposes nor sanctions any
religion or belief.196 They point out that the RH Law only seeks to serve the public interest by
providing accessible, effective and quality reproductive health services to ensure maternal and child
health, in line with the State's duty to bring to reality the social justice health guarantees of the
Constitution,197 and that what the law only prohibits are those acts or practices, which deprive others
of their right to reproductive health.198 They assert that the assailed law only seeks to guarantee
informed choice, which is an assurance that no one will be compelled to violate his religion against
his free will.199

The respondents add that by asserting that only natural family planning should be allowed, the
petitioners are effectively going against the constitutional right to religious freedom, the same right
they invoked to assail the constitutionality of the RH Law.200 In other words, by seeking the
declaration that the RH Law is unconstitutional, the petitioners are asking that the Court recognize
only the Catholic Church's sanctioned natural family planning methods and impose this on the entire
citizenry.201

With respect to the duty to refer, the respondents insist that the same does not violate the
constitutional guarantee of religious freedom, it being a carefully balanced compromise between the
interests of the religious objector, on one hand, who is allowed to keep silent but is required to refer -
and that of the citizen who needs access to information and who has the right to expect that the
health care professional in front of her will act professionally. For the respondents, the concession
given by the State under Section 7 and 23(a)(3) is sufficient accommodation to the right to freely
exercise one's religion without unnecessarily infringing on the rights of others.202

Whatever burden is placed on the petitioner's religious freedom is minimal as the duty to refer is
limited in duration, location and impact.203

Regarding mandatory family planning seminars under Section 15 , the respondents claim that it is a
reasonable regulation providing an opportunity for would-be couples to have access to information
regarding parenthood, family planning, breastfeeding and infant nutrition. It is argued that those who
object to any information received on account of their attendance in the required seminars are not
compelled to accept information given to them. They are completely free to reject any information
they do not agree with and retain the freedom to decide on matters of family life without intervention
of the State.204
For their part, respondents De Venecia et al., dispute the notion that natural family planning is the
only method acceptable to Catholics and the Catholic hierarchy. Citing various studies and surveys
on the matter, they highlight the changing stand of the Catholic Church on contraception throughout
the years and note the general acceptance of the benefits of contraceptives by its followers in
planning their families.

The Church and The State

At the outset, it cannot be denied that we all live in a heterogeneous society. It is made up of people
of diverse ethnic, cultural and religious beliefs and backgrounds. History has shown us that our
government, in law and in practice, has allowed these various religious, cultural, social and racial
groups to thrive in a single society together. It has embraced minority groups and is tolerant towards
all - the religious people of different sects and the non-believers. The undisputed fact is that our
people generally believe in a deity, whatever they conceived Him to be, and to whom they call for
guidance and enlightenment in crafting our fundamental law. Thus, the preamble of the present
Constitution reads:

We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and
humane society, and establish a Government that shall embody our ideals and aspirations, promote
the common good, conserve and develop our patrimony, and secure to ourselves and our posterity,
the blessings of independence and democracy under the rule of law and a regime of truth, justice,
freedom, love, equality, and peace, do ordain and promulgate this Constitution.

The Filipino people in "imploring the aid of Almighty God " manifested their spirituality innate in our
nature and consciousness as a people, shaped by tradition and historical experience. As this is
embodied in the preamble, it means that the State recognizes with respect the influence of religion in
so far as it instills into the mind the purest principles of morality.205 Moreover, in recognition of the
contributions of religion to society, the 1935, 1973 and 1987 constitutions contain benevolent and
accommodating provisions towards religions such as tax exemption of church property, salary of
religious officers in government institutions, and optional religious instructions in public schools.

The Framers, however, felt the need to put up a strong barrier so that the State would not encroach
into the affairs of the church, and vice-versa. The principle of separation of Church and State was,
thus, enshrined in Article II, Section 6 of the 1987 Constitution, viz:

Section 6. The separation of Church and State shall be inviolable.

Verily, the principle of separation of Church and State is based on mutual respect. Generally, the
1âw phi1

State cannot meddle in the internal affairs of the church, much less question its faith and dogmas or
dictate upon it. It cannot favor one religion and discriminate against another. On the other hand, the
church cannot impose its beliefs and convictions on the State and the rest of the citizenry. It cannot
demand that the nation follow its beliefs, even if it sincerely believes that they are good for the
country.

Consistent with the principle that not any one religion should ever be preferred over another, the
Constitution in the above-cited provision utilizes the term "church" in its generic sense, which refers
to a temple, a mosque, an iglesia, or any other house of God which metaphorically symbolizes a
religious organization. Thus, the "Church" means the religious congregations collectively.

Balancing the benefits that religion affords and the need to provide an ample barrier to protect the
State from the pursuit of its secular objectives, the Constitution lays down the following mandate in
Article III, Section 5 and Article VI, Section 29 (2), of the 1987 Constitution:

Section. 5. No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No religious test shall be required for the
exercise of civil or political rights.

Section 29.
 xxx.

No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly,
for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of
religion, or of any priest, preacher, minister, other religious teacher, or dignitary as such, except
when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal
institution, or government orphanage or leprosarium.

In short, the constitutional assurance of religious freedom provides two guarantees: the
Establishment Clause and the Free Exercise Clause.

The establishment clause "principally prohibits the State from sponsoring any religion or favoring any
religion as against other religions. It mandates a strict neutrality in affairs among religious
groups."206 Essentially, it prohibits the establishment of a state religion and the use of public
resources for the support or prohibition of a religion.

On the other hand, the basis of the free exercise clause is the respect for the inviolability of the
human conscience.207 Under this part of religious freedom guarantee, the State is prohibited from
unduly interfering with the outside manifestations of one's belief and faith.208 Explaining the concept
of religious freedom, the Court, in Victoriano v. Elizalde Rope Workers Union209 wrote:

The constitutional provisions not only prohibits legislation for the support of any religious tenets or
the modes of worship of any sect, thus forestalling compulsion by law of the acceptance of any
creed or the practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but
also assures the free exercise of one's chosen form of religion within limits of utmost amplitude. It
has been said that the religion clauses of the Constitution are all designed to protect the broadest
possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his
beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the
common good. Any legislation whose effect or purpose is to impede the observance of one or all
religions, or to discriminate invidiously between the religions, is invalid, even though the burden may
be characterized as being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct.
1970) But if the state regulates conduct by enacting, within its power, a general law which has for its
purpose and effect to advance the state's secular goals, the statute is valid despite its indirect
burden on religious observance, unless the state can accomplish its purpose without imposing such
burden. (Braunfeld v. Brown, 366 U.S. 599, 6 Led. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland,
366 U.S. 420, 444-5 and 449).

As expounded in Escritor,

The establishment and free exercise clauses were not designed to serve contradictory purposes.
They have a single goal-to promote freedom of individual religious beliefs and practices. In simplest
terms, the free exercise clause prohibits government from inhibiting religious beliefs with penalties
for religious beliefs and practice, while the establishment clause prohibits government from inhibiting
religious belief with rewards for religious beliefs and practices. In other words, the two religion
clauses were intended to deny government the power to use either the carrot or the stick to influence
individual religious beliefs and practices.210

Corollary to the guarantee of free exercise of one's religion is the principle that the guarantee of
religious freedom is comprised of two parts: the freedom to believe, and the freedom to act on one's
belief. The first part is absolute. As explained in Gerona v. Secretary of Education:211

The realm of belief and creed is infinite and limitless bounded only by one's imagination and thought.
So is the freedom of belief, including religious belief, limitless and without bounds. One may believe
in most anything, however strange, bizarre and unreasonable the same may appear to others, even
heretical when weighed in the scales of orthodoxy or doctrinal standards. But between the freedom
of belief and the exercise of said belief, there is quite a stretch of road to travel.212
The second part however, is limited and subject to the awesome power of the State and can be
enjoyed only with proper regard to the rights of others. It is "subject to regulation where the belief is
translated into external acts that affect the public welfare."213

Legislative Acts and the

Free Exercise Clause

Thus, in case of conflict between the free exercise clause and the State, the Court adheres to the
doctrine of benevolent neutrality. This has been clearly decided by the Court in Estrada v. Escritor,
(Escritor)214 where it was stated "that benevolent neutrality-accommodation, whether mandatory or
permissive, is the spirit, intent and framework underlying the Philippine Constitution."215 In the same
case, it was further explained that"

The benevolent neutrality theory believes that with respect to these governmental actions,
accommodation of religion may be allowed, not to promote the government's favored form of
religion, but to allow individuals and groups to exercise their religion without hindrance. "The purpose
of accommodation is to remove a burden on, or facilitate the exercise of, a person's or institution's
religion."216 "What is sought under the theory of accommodation is not a declaration of
unconstitutionality of a facially neutral law, but an exemption from its application or its 'burdensome
effect,' whether by the legislature or the courts."217

In ascertaining the limits of the exercise of religious freedom, the compelling state interest test is
proper.218Underlying the compelling state interest test is the notion that free exercise is a fundamental
right and that laws burdening it should be subject to strict scrutiny.219 In Escritor, it was written:

Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first
case on the Free Exercise Clause, American Bible Society, the Court mentioned the "clear and
present danger" test but did not employ it. Nevertheless, this test continued to be cited in
subsequent cases on religious liberty. The Gerona case then pronounced that the test of
permissibility of religious freedom is whether it violates the established institutions of society and
law. The Victoriano case mentioned the "immediate and grave danger" test as well as the doctrine
that a law of general applicability may burden religious exercise provided the law is the least
restrictive means to accomplish the goal of the law. The case also used, albeit inappropriately, the
"compelling state interest" test. After Victoriano , German went back to the Gerona rule. Ebralinag
then employed the "grave and immediate danger" test and overruled the Gerona test. The fairly
recent case of Iglesia ni Cristo went back to the " clear and present danger" test in the maiden case
of A merican Bible Society. Not surprisingly, all the cases which employed the "clear and present
danger" or "grave and immediate danger" test involved, in one form or another, religious speech as
this test is often used in cases on freedom of expression. On the other hand, the Gerona and
German cases set the rule that religious freedom will not prevail over established institutions of
society and law. Gerona, however, which was the authority cited by German has been overruled by
Ebralinag which employed the "grave and immediate danger" test . Victoriano was the only case that
employed the "compelling state interest" test, but as explained previously, the use of the test was
inappropriate to the facts of the case.

The case at bar does not involve speech as in A merican Bible Society, Ebralinag and Iglesia ni
Cristo where the "clear and present danger" and "grave and immediate danger" tests were
appropriate as speech has easily discernible or immediate effects. The Gerona and German
doctrine, aside from having been overruled, is not congruent with the benevolent neutrality
approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the present case involves
purely conduct arising from religious belief. The "compelling state interest" test is proper where
conduct is involved for the whole gamut of human conduct has different effects on the state's
interests: some effects may be immediate and short-term while others delayed and far-reaching. A
test that would protect the interests of the state in preventing a substantive evil, whether immediate
or delayed, is therefore necessary. However, not any interest of the state would suffice to prevail
over the right to religious freedom as this is a fundamental right that enjoys a preferred position in
the hierarchy of rights - "the most inalienable and sacred of all human rights", in the words of
Jefferson. This right is sacred for an invocation of the Free Exercise Clause is an appeal to a higher
sovereignty. The entire constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the Filipinos implore the "aid of Almighty God in
order to build a just and humane society and establish a government." As held in Sherbert, only the
gravest abuses, endangering paramount interests can limit this fundamental right. A mere balancing
of interests which balances a right with just a colorable state interest is therefore not appropriate.
Instead, only a compelling interest of the state can prevail over the fundamental right to religious
liberty. The test requires the state to carry a heavy burden, a compelling one, for to do otherwise
would allow the state to batter religion, especially the less powerful ones until they are destroyed. In
determining which shall prevail between the state's interest and religious liberty, reasonableness
shall be the guide. The "compelling state interest" serves the purpose of revering religious liberty
while at the same time affording protection to the paramount interests of the state. This was the test
used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end, the
"compelling state interest" test, by upholding the paramount interests of the state, seeks to protect
the very state, without which, religious liberty will not be preserved. [Emphases in the original.
Underlining supplied.]

The Court's Position

In the case at bench, it is not within the province of the Court to determine whether the use of
contraceptives or one's participation in the support of modem reproductive health measures is moral
from a religious standpoint or whether the same is right or wrong according to one's dogma or belief.
For the Court has declared that matters dealing with "faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a church ... are unquestionably ecclesiastical matters which
are outside the province of the civil courts."220 The jurisdiction of the Court extends only to public and
secular morality. Whatever pronouncement the Court makes in the case at bench should be
understood only in this realm where it has authority. Stated otherwise, while the Court stands without
authority to rule on ecclesiastical matters, as vanguard of the Constitution, it does have authority to
determine whether the RH Law contravenes the guarantee of religious freedom.

At first blush, it appears that the RH Law recognizes and respects religion and religious beliefs and
convictions. It is replete with assurances the no one can be compelled to violate the tenets of his
religion or defy his religious convictions against his free will. Provisions in the RH Law respecting
religious freedom are the following:

1. The State recognizes and guarantees the human rights of all persons including their right to
equality and nondiscrimination of these rights, the right to sustainable human development, the right
to health which includes reproductive health, the right to education and information, and the right to
choose and make decisions for themselves in accordance with their religious convictions, ethics,
cultural beliefs, and the demands of responsible parenthood. [Section 2, Declaration of Policy]

2 . The State recognizes marriage as an inviolable social institution and the foundation of the family
which in turn is the foundation of the nation. Pursuant thereto, the State shall defend:

(a) The right of spouses to found a family in accordance with their religious convictions and the
demands of responsible parenthood." [Section 2, Declaration of Policy]

3. The State shall promote and provide information and access, without bias, to all methods of family
planning, including effective natural and modern methods which have been proven medically safe,
legal, non-abortifacient, and effective in accordance with scientific and evidence-based medical
research standards such as those registered and approved by the FDA for the poor and
marginalized as identified through the NHTS-PR and other government measures of identifying
marginalization: Provided, That the State shall also provide funding support to promote modern
natural methods of family planning, especially the Billings Ovulation Method, consistent with the
needs of acceptors and their religious convictions. [Section 3(e), Declaration of Policy]

4. The State shall promote programs that: (1) enable individuals and couples to have the number of
children they desire with due consideration to the health, particularly of women, and the resources
available and affordable to them and in accordance with existing laws, public morals and their
religious convictions. [Section 3CDJ
5. The State shall respect individuals' preferences and choice of family planning methods that are in
accordance with their religious convictions and cultural beliefs, taking into consideration the State's
obligations under various human rights instruments. [Section 3(h)]

6. Active participation by nongovernment organizations (NGOs) , women's and people's

organizations, civil society, faith-based organizations, the religious sector and communities is crucial
to ensure that reproductive health and population and development policies, plans, and programs
will address the priority needs of women, the poor, and the marginalized. [Section 3(i)]

7. Responsible parenthood refers to the will and ability of a parent to respond to the needs and
aspirations of the family and children. It is likewise a shared responsibility between parents to
determine and achieve the desired number of children, spacing and timing of their children according
to their own family life aspirations, taking into account psychological preparedness, health status,
sociocultural and economic concerns consistent with their religious convictions. [Section 4(v)]
(Emphases supplied)

While the Constitution prohibits abortion, laws were enacted allowing the use of contraceptives. To
some medical practitioners, however, the whole idea of using contraceptives is an anathema.
Consistent with the principle of benevolent neutrality, their beliefs should be respected.

The Establishment Clause

and Contraceptives

In the same breath that the establishment clause restricts what the government can do with religion,
it also limits what religious sects can or cannot do with the government. They can neither cause the
government to adopt their particular doctrines as policy for everyone, nor can they not cause the
government to restrict other groups. To do so, in simple terms, would cause the State to adhere to a
particular religion and, thus, establishing a state religion.

Consequently, the petitioners are misguided in their supposition that the State cannot enhance its
population control program through the RH Law simply because the promotion of contraceptive use
is contrary to their religious beliefs. Indeed, the State is not precluded to pursue its legitimate secular
objectives without being dictated upon by the policies of any one religion. One cannot refuse to pay
his taxes simply because it will cloud his conscience. The demarcation line between Church and
State demands that one render unto Caesar the things that are Caesar's and unto God the things
that are God's.221

The Free Exercise Clause and the Duty to Refer

While the RH Law, in espousing state policy to promote reproductive health manifestly respects
diverse religious beliefs in line with the Non-Establishment Clause, the same conclusion cannot be
reached with respect to Sections 7, 23 and 24 thereof. The said provisions commonly mandate that
a hospital or a medical practitioner to immediately refer a person seeking health care and services
under the law to another accessible healthcare provider despite their conscientious objections based
on religious or ethical beliefs.

In a situation where the free exercise of religion is allegedly burdened by government legislation or
practice, the compelling state interest test in line with the Court's espousal of the Doctrine of
Benevolent Neutrality in Escritor, finds application. In this case, the conscientious objector's claim to
religious freedom would warrant an exemption from obligations under the RH Law, unless the
government succeeds in demonstrating a more compelling state interest in the accomplishment of
an important secular objective. Necessarily so, the plea of conscientious objectors for exemption
from the RH Law deserves no less than strict scrutiny.

In applying the test, the first inquiry is whether a conscientious objector's right to religious freedom
has been burdened. As in Escritor, there is no doubt that an intense tug-of-war plagues a
conscientious objector. One side coaxes him into obedience to the law and the abandonment of his
religious beliefs, while the other entices him to a clean conscience yet under the pain of penalty. The
scenario is an illustration of the predicament of medical practitioners whose religious beliefs are
incongruent with what the RH Law promotes.

The Court is of the view that the obligation to refer imposed by the RH Law violates the religious
belief and conviction of a conscientious objector. Once the medical practitioner, against his will,
refers a patient seeking information on modem reproductive health products, services, procedures
and methods, his conscience is immediately burdened as he has been compelled to perform an act
against his beliefs. As Commissioner Joaquin A. Bernas (Commissioner Bernas) has written, "at the
basis of the free exercise clause is the respect for the inviolability of the human conscience.222

Though it has been said that the act of referral is an opt-out clause, it is, however, a false
compromise because it makes pro-life health providers complicit in the performance of an act that
they find morally repugnant or offensive. They cannot, in conscience, do indirectly what they cannot
do directly. One may not be the principal, but he is equally guilty if he abets the offensive act by
indirect participation.

Moreover, the guarantee of religious freedom is necessarily intertwined with the right to free speech,
it being an externalization of one's thought and conscience. This in turn includes the right to be
silent. With the constitutional guarantee of religious freedom follows the protection that should be
afforded to individuals in communicating their beliefs to others as well as the protection for simply
being silent. The Bill of Rights guarantees the liberty of the individual to utter what is in his mind and
the liberty not to utter what is not in his mind.223 While the RH Law seeks to provide freedom of choice
through informed consent, freedom of choice guarantees the liberty of the religious conscience and
prohibits any degree of compulsion or burden, whether direct or indirect, in the practice of one's
religion.224

In case of conflict between the religious beliefs and moral convictions of individuals, on one hand,
and the interest of the State, on the other, to provide access and information on reproductive health
products, services, procedures and methods to enable the people to determine the timing, number
and spacing of the birth of their children, the Court is of the strong view that the religious freedom of
health providers, whether public or private, should be accorded primacy. Accordingly, a
conscientious objector should be exempt from compliance with the mandates of the RH Law. If he
would be compelled to act contrary to his religious belief and conviction, it would be violative of "the
principle of non-coercion" enshrined in the constitutional right to free exercise of religion.

Interestingly, on April 24, 2013, Scotland's Inner House of the Court of Session, found in the case of
Doogan and Wood v. NHS Greater Glasgow and Clyde Health Board,225 that the midwives claiming to
be conscientious objectors under the provisions of Scotland's Abortion Act of 1967, could not be
required to delegate, supervise or support staff on their labor ward who were involved in
abortions.226 The Inner House stated "that if 'participation' were defined according to whether the
person was taking part 'directly' or ' indirectly' this would actually mean more complexity and
uncertainty."227

While the said case did not cover the act of referral, the applicable principle was the same - they
could not be forced to assist abortions if it would be against their conscience or will.

Institutional Health Providers

The same holds true with respect to non-maternity specialty hospitals and hospitals owned and
operated by a religious group and health care service providers. Considering that Section 24 of the
RH Law penalizes such institutions should they fail or refuse to comply with their duty to refer under
Section 7 and Section 23(a)(3), the Court deems that it must be struck down for being violative of the
freedom of religion. The same applies to Section 23(a)(l) and (a)(2) in relation to Section 24,
considering that in the dissemination of information regarding programs and services and in the
performance of reproductive health procedures, the religious freedom of health care service
providers should be respected.

In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the Executive Secretary228 it
was stressed:
Freedom of religion was accorded preferred status by the framers of our fundamental law. And this
Court has consistently affirmed this preferred status, well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others
and with the common good."10

The Court is not oblivious to the view that penalties provided by law endeavour to ensure
compliance. Without set consequences for either an active violation or mere inaction, a law tends to
be toothless and ineffectual. Nonetheless, when what is bartered for an effective implementation of a
law is a constitutionally-protected right the Court firmly chooses to stamp its disapproval. The
punishment of a healthcare service provider, who fails and/or refuses to refer a patient to another, or
who declines to perform reproductive health procedure on a patient because incompatible religious
beliefs, is a clear inhibition of a constitutional guarantee which the Court cannot allow.

The Implementing Rules and Regulation (RH-IRR)

The last paragraph of Section 5.24 of the RH-IRR reads:

Provided, That skilled health professional such as provincial, city or municipal health officers, chiefs
of hospital, head nurses, supervising midwives, among others, who by virtue of their office are
specifically charged with the duty to implement the provisions of the RPRH Act and these Rules,
cannot be considered as conscientious objectors.

This is discriminatory and violative of the equal protection clause. The conscientious objection
clause should be equally protective of the religious belief of public health officers. There is no
perceptible distinction why they should not be considered exempt from the mandates of the law. The
protection accorded to other conscientious objectors should equally apply to all medical practitioners
without distinction whether they belong to the public or private sector. After all, the freedom to
believe is intrinsic in every individual and the protective robe that guarantees its free exercise is not
taken off even if one acquires employment in the government.

It should be stressed that intellectual liberty occupies a place inferior to none in the hierarchy of
human values. The mind must be free to think what it wills, whether in the secular or religious
sphere, to give expression to its beliefs by oral discourse or through the media and, thus, seek other
candid views in occasions or gatherings or in more permanent aggrupation. Embraced in such
concept then are freedom of religion, freedom of speech, of the press, assembly and petition, and
freedom of association.229

The discriminatory provision is void not only because no such exception is stated in the RH Law
itself but also because it is violative of the equal protection clause in the Constitution. Quoting
respondent Lagman, if there is any conflict between the RH-IRR and the RH Law, the law must
prevail.

Justice Mendoza:

I'll go to another point. The RH law .. .in your Comment- in-Intervention on page 52, you mentioned
RH Law is replete with provisions in upholding the freedom of religion and respecting religious
convictions. Earlier, you affirmed this with qualifications. Now, you have read, I presumed you have
read the IRR-Implementing Rules and Regulations of the RH Bill?

Congressman Lagman:

Yes, Your Honor, I have read but I have to admit, it's a long IRR and I have not thoroughly dissected
the nuances of the provisions.

Justice Mendoza:
I will read to you one provision. It's Section 5.24. This I cannot find in the RH Law. But in the IRR it
says: " .... skilled health professionals such as provincial, city or municipal health officers, chief of
hospitals, head nurses, supervising midwives, among others, who by virtue of their office are
specifically charged with the duty to implement the provisions of the RPRH Act and these Rules,
cannot be considered as conscientious objectors." Do you agree with this?

Congressman Lagman:

I will have to go over again the provisions, Your Honor.

Justice Mendoza:

In other words, public health officers in contrast to the private practitioners who can be conscientious
objectors, skilled health professionals cannot be considered conscientious objectors. Do you agree
with this? Is this not against the constitutional right to the religious belief?

Congressman Lagman:

Your Honor, if there is any conflict between the IRR and the law, the law must prevail.230

Compelling State Interest

The foregoing discussion then begets the question on whether the respondents, in defense of the
subject provisions, were able to: 1] demonstrate a more compelling state interest to restrain
conscientious objectors in their choice of services to render; and 2] discharge the burden of proof
that the obligatory character of the law is the least intrusive means to achieve the objectives of the
law.

Unfortunately, a deep scrutiny of the respondents' submissions proved to be in vain. The OSG was
curiously silent in the establishment of a more compelling state interest that would rationalize the
curbing of a conscientious objector's right not to adhere to an action contrary to his religious
convictions. During the oral arguments, the OSG maintained the same silence and evasion. The
Transcripts of the Stenographic Notes disclose the following:

Justice De Castro:

Let's go back to the duty of the conscientious objector to refer. ..

Senior State Solicitor Hilbay:

Yes, Justice.

Justice De Castro:

... which you are discussing awhile ago with Justice Abad. What is the compelling State interest in
imposing this duty to refer to a conscientious objector which refuses to do so because of his religious
belief?

Senior State Solicitor Hilbay:

Ahh, Your Honor, ..

Justice De Castro:

What is the compelling State interest to impose this burden?

Senior State Solicitor Hilbay:

In the first place, Your Honor, I don't believe that the standard is a compelling State interest, this is
an ordinary health legislation involving professionals. This is not a free speech matter or a pure free
exercise matter. This is a regulation by the State of the relationship between medical doctors and
their patients.231

Resultantly, the Court finds no compelling state interest which would limit the free exercise clause of
the conscientious objectors, however few in number. Only the prevention of an immediate and grave
danger to the security and welfare of the community can justify the infringement of religious freedom.
If the government fails to show the seriousness and immediacy of the threat, State intrusion is
constitutionally unacceptable.232

Freedom of religion means more than just the freedom to believe. It also means the freedom to act
or not to act according to what one believes. And this freedom is violated when one is compelled to
act against one's belief or is prevented from acting according to one's belief.233

Apparently, in these cases, there is no immediate danger to the life or health of an individual in the
perceived scenario of the subject provisions. After all, a couple who plans the timing, number and
spacing of the birth of their children refers to a future event that is contingent on whether or not the
mother decides to adopt or use the information, product, method or supply given to her or whether
she even decides to become pregnant at all. On the other hand, the burden placed upon those who
object to contraceptive use is immediate and occurs the moment a patient seeks consultation on
reproductive health matters.

Moreover, granting that a compelling interest exists to justify the infringement of the conscientious
objector's religious freedom, the respondents have failed to demonstrate "the gravest abuses,
endangering paramount interests" which could limit or override a person's fundamental right to
religious freedom. Also, the respondents have not presented any government effort exerted to show
that the means it takes to achieve its legitimate state objective is the least intrusive means.234 Other
than the assertion that the act of referring would only be momentary, considering that the act of
referral by a conscientious objector is the very action being contested as violative of religious
freedom, it behooves the respondents to demonstrate that no other means can be undertaken by the
State to achieve its objective without violating the rights of the conscientious objector. The health
concerns of women may still be addressed by other practitioners who may perform reproductive
health-related procedures with open willingness and motivation. Suffice it to say, a person who is
forced to perform an act in utter reluctance deserves the protection of the Court as the last vanguard
of constitutional freedoms.

At any rate, there are other secular steps already taken by the Legislature to ensure that the right to
health is protected. Considering other legislations as they stand now, R.A . No. 4 729 or the
Contraceptive Act, R.A. No. 6365 or "The Population Act of the Philippines" and R.A. No. 9710,
otherwise known as "The Magna Carta of Women," amply cater to the needs of women in relation to
health services and programs. The pertinent provision of Magna Carta on comprehensive health
services and programs for women, in fact, reads:

Section 17. Women's Right to Health. - (a) Comprehensive Health Services. - The State shall, at all
times, provide for a comprehensive, culture-sensitive, and gender-responsive health services and
programs covering all stages of a woman's life cycle and which addresses the major causes of
women's mortality and morbidity: Provided, That in the provision for comprehensive health services,
due respect shall be accorded to women's religious convictions, the rights of the spouses to found a
family in accordance with their religious convictions, and the demands of responsible parenthood,
and the right of women to protection from hazardous drugs, devices, interventions, and substances.

Access to the following services shall be ensured:

(1) Maternal care to include pre- and post-natal services to address pregnancy and
infant health and nutrition;

(2) Promotion of breastfeeding;

 (3) Responsible, ethical, legal, safe, and effective methods of family planning;

(4) Family and State collaboration in youth sexuality education and health services
without prejudice to the primary right and duty of parents to educate their children;

(5) Prevention and management of reproductive tract infections, including sexually

transmitted diseases, HIV, and AIDS;

(6) Prevention and management of reproductive tract cancers like breast and cervical
cancers, and other gynecological conditions and disorders;

(7) Prevention of abortion and management of pregnancy-related complications;

(8) In cases of violence against women and children, women and children victims
and survivors shall be provided with comprehensive health services that include
psychosocial, therapeutic, medical, and legal interventions and assistance towards
healing, recovery, and empowerment;

(9) Prevention and management of infertility and sexual dysfunction pursuant to

ethical norms and medical standards;

(10) Care of the elderly women beyond their child-bearing years; and

(11) Management, treatment, and intervention of mental health problems of women

and girls. In addition, healthy lifestyle activities are encouraged and promoted
through programs and projects as strategies in the prevention of diseases.

(b) Comprehensive Health Information and Education. - The State shall provide women in all sectors
with appropriate, timely, complete, and accurate information and education on all the above-stated
aspects of women's health in government education and training programs, with due regard to the
following:

(1) The natural and primary right and duty of parents in the rearing of the youth and
the development of moral character and the right of children to be brought up in an
atmosphere of morality and rectitude for the enrichment and strengthening of
character;

(2) The formation of a person's sexuality that affirms human dignity; and

(3) Ethical, legal, safe, and effective family planning methods including fertility
awareness.

As an afterthought, Asst. Solicitor General Hilbay eventually replied that the compelling state interest
was "Fifteen maternal deaths per day, hundreds of thousands of unintended pregnancies, lives
changed, x x x."235 He, however, failed to substantiate this point by concrete facts and figures from
reputable sources.

The undisputed fact, however, is that the World Health Organization reported that the Filipino
maternal mortality rate dropped to 48 percent from 1990 to 2008, 236 although there was still no RH
Law at that time. Despite such revelation, the proponents still insist that such number of maternal
deaths constitute a compelling state interest.

Granting that there are still deficiencies and flaws in the delivery of social healthcare programs for
Filipino women, they could not be solved by a measure that puts an unwarrantable stranglehold on
religious beliefs in exchange for blind conformity.

Exception: Life Threatening Cases

All this notwithstanding, the Court properly recognizes a valid exception set forth in the law. While
generally healthcare service providers cannot be forced to render reproductive health care
procedures if doing it would contravene their religious beliefs, an exception must be made in life-
threatening cases that require the performance of emergency procedures. In these situations, the
right to life of the mother should be given preference, considering that a referral by a medical
practitioner would amount to a denial of service, resulting to unnecessarily placing the life of a
mother in grave danger. Thus, during the oral arguments, Atty. Liban, representing CFC, manifested:
"the forced referral clause that we are objecting on grounds of violation of freedom of religion does
not contemplate an emergency."237

In a conflict situation between the life of the mother and the life of a child, the doctor is morally
obliged always to try to save both lives. If, however, it is impossible, the resulting death to one
should not be deliberate. Atty. Noche explained:

Principle of Double-Effect. - May we please remind the principal author of the RH Bill in the House of
Representatives of the principle of double-effect wherein intentional harm on the life of either the
mother of the child is never justified to bring about a "good" effect. In a conflict situation between the
life of the child and the life of the mother, the doctor is morally obliged always to try to save both
lives. However, he can act in favor of one (not necessarily the mother) when it is medically
impossible to save both, provided that no direct harm is intended to the other. If the above principles
are observed, the loss of the child's life or the mother's life is not intentional and, therefore,
unavoidable. Hence, the doctor would not be guilty of abortion or murder. The mother is never pitted
against the child because both their lives are equally valuable.238

Accordingly, if it is necessary to save the life of a mother, procedures endangering the life of the
child may be resorted to even if is against the religious sentiments of the medical practitioner. As
quoted above, whatever burden imposed upon a medical practitioner in this case would have been
more than justified considering the life he would be able to save.

Family Planning Seminars

Anent the requirement imposed under Section 15239 as a condition for the issuance of a marriage
license, the Court finds the same to be a reasonable exercise of police power by the government. A
cursory reading of the assailed provision bares that the religious freedom of the petitioners is not at
all violated. All the law requires is for would-be spouses to attend a seminar on parenthood, family
planning breastfeeding and infant nutrition. It does not even mandate the type of family planning
methods to be included in the seminar, whether they be natural or artificial. As correctly noted by the
OSG, those who receive any information during their attendance in the required seminars are not
compelled to accept the information given to them, are completely free to reject the information they
find unacceptable, and retain the freedom to decide on matters of family life without the intervention
of the State.

4-The Family and the Right to Privacy

Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof violates the provisions of
the Constitution by intruding into marital privacy and autonomy. It argues that it cultivates disunity
and fosters animosity in the family rather than promote its solidarity and total development.240

The Court cannot but agree.

The 1987 Constitution is replete with provisions strengthening the family as it is the basic social
institution. In fact, one article, Article XV, is devoted entirely to the family.

ARTICLE XV
THE FAMILY

Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it
shall strengthen its solidarity and actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be
protected by the State.

Section 3. The State shall defend:

The right of spouses to found a family in accordance with their religious convictions and the
demands of responsible parenthood;

The right of children to assistance, including proper care and nutrition, and special protection from all
forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development;

The right of the family to a family living wage and income; and

The right of families or family assoc1at1ons to participate in the planning and implementation of
policies and programs that affect them.

In this case, the RH Law, in its not-so-hidden desire to control population growth, contains provisions
which tend to wreck the family as a solid social institution. It bars the husband and/or the father from
participating in the decision making process regarding their common future progeny. It likewise
deprives the parents of their authority over their minor daughter simply because she is already a
parent or had suffered a miscarriage.

The Family and Spousal Consent

Section 23(a) (2) (i) of the RH Law states:

The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall: ...

(2) refuse to perform legal and medically-safe reproductive health procedures on any person of legal
age on the ground of lack of consent or authorization of the following persons in the following
instances:

(i) Spousal consent in case of married persons: provided, That in case of disagreement, the decision
of the one undergoing the procedures shall prevail. [Emphasis supplied]

The above provision refers to reproductive health procedures like tubal litigation and vasectomy
which, by their very nature, should require mutual consent and decision between the husband and
the wife as they affect issues intimately related to the founding of a family. Section 3, Art. XV of the
Constitution espouses that the State shall defend the "right of the spouses to found a family." One
person cannot found a family. The right, therefore, is shared by both spouses. In the same Section
3, their right "to participate in the planning and implementation of policies and programs that affect
them " is equally recognized.

The RH Law cannot be allowed to infringe upon this mutual decision-making. By giving absolute
authority to the spouse who would undergo a procedure, and barring the other spouse from
participating in the decision would drive a wedge between the husband and wife, possibly result in
bitter animosity, and endanger the marriage and the family, all for the sake of reducing the
population. This would be a marked departure from the policy of the State to protect marriage as an
inviolable social institution.241

Decision-making involving a reproductive health procedure is a private matter which belongs to the
couple, not just one of them. Any decision they would reach would affect their future as a family
because the size of the family or the number of their children significantly matters. The decision
whether or not to undergo the procedure belongs exclusively to, and shared by, both spouses as
one cohesive unit as they chart their own destiny. It is a constitutionally guaranteed private right.
Unless it prejudices the State, which has not shown any compelling interest, the State should see to
it that they chart their destiny together as one family.

As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No. 9710, otherwise known as
the "Magna Carta for Women," provides that women shall have equal rights in all matters relating to
marriage and family relations, including the joint decision on the number and spacing of their
children. Indeed, responsible parenthood, as Section 3(v) of the RH Law states, is a shared
responsibility between parents. Section 23(a)(2)(i) of the RH Law should not be allowed to betray the
constitutional mandate to protect and strengthen the family by giving to only one spouse the
absolute authority to decide whether to undergo reproductive health procedure.242

The right to chart their own destiny together falls within the protected zone of marital privacy and
such state intervention would encroach into the zones of spousal privacy guaranteed by the
Constitution. In our jurisdiction, the right to privacy was first recognized in Marje v. Mutuc,243 where
the Court, speaking through Chief Justice Fernando, held that "the right to privacy as such is
accorded recognition independently of its identification with liberty; in itself, it is fully deserving of
constitutional protection."244 Marje adopted the ruling of the US Supreme Court in Griswold v.
Connecticut,245 where Justice William O. Douglas wrote:

We deal with a right of privacy older than the Bill of Rights -older than our political parties, older than
our school system. Marriage is a coming together for better or for worse, hopefully enduring, and
intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a
harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an
association for as noble a purpose as any involved in our prior decisions.

Ironically, Griswold invalidated a Connecticut statute which made the use of contraceptives a
criminal offense on the ground of its amounting to an unconstitutional invasion of the right to privacy
of married persons. Nevertheless, it recognized the zone of privacy rightfully enjoyed by couples.
Justice Douglas in Grisworld wrote that "specific guarantees in the Bill of Rights have penumbras,
formed by emanations from those guarantees that help give them life and substance. Various
guarantees create zones of privacy."246

At any rate, in case of conflict between the couple, the courts will decide.

The Family and Parental Consent

Equally deplorable is the debarment of parental consent in cases where the minor, who will be
undergoing a procedure, is already a parent or has had a miscarriage. Section 7 of the RH law
provides:

SEC. 7. Access to Family Planning. – x x x.

No person shall be denied information and access to family planning services, whether natural or
artificial: Provided, That minors will not be allowed access to modern methods of family planning
without written consent from their parents or guardian/s except when the minor is already a parent or
has had a miscarriage.

There can be no other interpretation of this provision except that when a minor is already a parent or
has had a miscarriage, the parents are excluded from the decision making process of the minor with
regard to family planning. Even if she is not yet emancipated, the parental authority is already cut off
just because there is a need to tame population growth.

It is precisely in such situations when a minor parent needs the comfort, care, advice, and guidance
of her own parents. The State cannot replace her natural mother and father when it comes to
providing her needs and comfort. To say that their consent is no longer relevant is clearly anti-family.
It does not promote unity in the family. It is an affront to the constitutional mandate to protect and
strengthen the family as an inviolable social institution.
More alarmingly, it disregards and disobeys the constitutional mandate that "the natural and primary
right and duty of parents in the rearing of the youth for civic efficiency and the development of moral
character shall receive the support of the Government."247 In this regard, Commissioner Bernas
wrote:

The 1987 provision has added the adjective "primary" to modify the right of parents. It imports the
assertion that the right of parents is superior to that of the State.248 [Emphases supplied]

To insist on a rule that interferes with the right of parents to exercise parental control over their
minor-child or the right of the spouses to mutually decide on matters which very well affect the very
purpose of marriage, that is, the establishment of conjugal and family life, would result in the
violation of one's privacy with respect to his family. It would be dismissive of the unique and strongly-
held Filipino tradition of maintaining close family ties and violative of the recognition that the State
affords couples entering into the special contract of marriage to as one unit in forming the foundation
of the family and society.

The State cannot, without a compelling state interest, take over the role of parents in the care and
custody of a minor child, whether or not the latter is already a parent or has had a miscarriage. Only
a compelling state interest can justify a state substitution of their parental authority.

First Exception: Access to Information

Whether with respect to the minor referred to under the exception provided in the second paragraph
of Section 7 or with respect to the consenting spouse under Section 23(a)(2)(i), a distinction must be
made. There must be a differentiation between access to information about family planning services,
on one hand, and access to the reproductive health procedures and modern family planning
methods themselves, on the other. Insofar as access to information is concerned, the Court finds no
constitutional objection to the acquisition of information by the minor referred to under the exception
in the second paragraph of Section 7 that would enable her to take proper care of her own body and
that of her unborn child. After all, Section 12, Article II of the Constitution mandates the State to
protect both the life of the mother as that of the unborn child. Considering that information to enable
a person to make informed decisions is essential in the protection and maintenance of ones' health,
access to such information with respect to reproductive health must be allowed. In this situation, the
fear that parents might be deprived of their parental control is unfounded because they are not
prohibited to exercise parental guidance and control over their minor child and assist her in deciding
whether to accept or reject the information received.

Second Exception: Life Threatening Cases

As in the case of the conscientious objector, an exception must be made in life-threatening cases
that require the performance of emergency procedures. In such cases, the life of the minor who has
already suffered a miscarriage and that of the spouse should not be put at grave risk simply for lack
of consent. It should be emphasized that no person should be denied the appropriate medical care
urgently needed to preserve the primordial right, that is, the right to life.

In this connection, the second sentence of Section 23(a)(2)(ii)249 should be struck down. By
effectively limiting the requirement of parental consent to "only in elective surgical procedures," it
denies the parents their right of parental authority in cases where what is involved are "non-surgical
procedures." Save for the two exceptions discussed above, and in the case of an abused child as
provided in the first sentence of Section 23(a)(2)(ii), the parents should not be deprived of their
constitutional right of parental authority. To deny them of this right would be an affront to the
constitutional mandate to protect and strengthen the family.

5 - Academic Freedom

It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof, mandating the
teaching of Age-and Development-Appropriate Reproductive Health Education under threat of fine
and/or imprisonment violates the principle of academic freedom . According to the petitioners, these
provisions effectively force educational institutions to teach reproductive health education even if
they believe that the same is not suitable to be taught to their students.250 Citing various studies
conducted in the United States and statistical data gathered in the country, the petitioners aver that
the prevalence of contraceptives has led to an increase of out-of-wedlock births; divorce and
breakdown of families; the acceptance of abortion and euthanasia; the "feminization of poverty"; the
aging of society; and promotion of promiscuity among the youth.251

At this point, suffice it to state that any attack on the validity of Section 14 of the RH Law is
premature because the Department of Education, Culture and Sports has yet to formulate a
curriculum on age-appropriate reproductive health education. One can only speculate on the
content, manner and medium of instruction that will be used to educate the adolescents and whether
they will contradict the religious beliefs of the petitioners and validate their apprehensions. Thus,
considering the premature nature of this particular issue, the Court declines to rule on its
constitutionality or validity.

At any rate, Section 12, Article II of the 1987 Constitution provides that the natural and primary right
and duty of parents in the rearing of the youth for civic efficiency and development of moral
character shall receive the support of the Government. Like the 1973 Constitution and the 1935
Constitution, the 1987 Constitution affirms the State recognition of the invaluable role of parents in
preparing the youth to become productive members of society. Notably, it places more importance
on the role of parents in the development of their children by recognizing that said role shall be
"primary," that is, that the right of parents in upbringing the youth is superior to that of the State.252

It is also the inherent right of the State to act as parens patriae to aid parents in the moral
development of the youth. Indeed, the Constitution makes mention of the importance of developing
the youth and their important role in nation building.253 Considering that Section 14 provides not only
for the age-appropriate-reproductive health education, but also for values formation; the
development of knowledge and skills in self-protection against discrimination; sexual abuse and
violence against women and children and other forms of gender based violence and teen pregnancy;
physical, social and emotional changes in adolescents; women's rights and children's rights;
responsible teenage behavior; gender and development; and responsible parenthood, and that Rule
10, Section 11.01 of the RH-IRR and Section 4(t) of the RH Law itself provides for the teaching of
responsible teenage behavior, gender sensitivity and physical and emotional changes among
adolescents - the Court finds that the legal mandate provided under the assailed provision
supplements, rather than supplants, the rights and duties of the parents in the moral development of
their children.

Furthermore, as Section 14 also mandates that the mandatory reproductive health education
program shall be developed in conjunction with parent-teacher-community associations, school
officials and other interest groups, it could very well be said that it will be in line with the religious
beliefs of the petitioners. By imposing such a condition, it becomes apparent that the petitioners'
contention that Section 14 violates Article XV, Section 3(1) of the Constitution is without merit.254

While the Court notes the possibility that educators might raise their objection to their participation in
the reproductive health education program provided under Section 14 of the RH Law on the ground
that the same violates their religious beliefs, the Court reserves its judgment should an actual case
be filed before it.

6 - Due Process

The petitioners contend that the RH Law suffers from vagueness and, thus violates the due process
clause of the Constitution. According to them, Section 23 (a)(l) mentions a "private health service
provider" among those who may be held punishable but does not define who is a "private health care
service provider." They argue that confusion further results since Section 7 only makes reference to
a "private health care institution."

The petitioners also point out that Section 7 of the assailed legislation exempts hospitals operated by
religious groups from rendering reproductive health service and modern family planning methods. It
is unclear, however, if these institutions are also exempt from giving reproductive health information
under Section 23(a)(l), or from rendering reproductive health procedures under Section 23(a)(2).
Finally, it is averred that the RH Law punishes the withholding, restricting and providing of incorrect
information, but at the same time fails to define "incorrect information."

The arguments fail to persuade.

A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that
men of common intelligence must necessarily guess its meaning and differ as to its application. It is
repugnant to the Constitution in two respects: (1) it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law
enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the
Government muscle.255 Moreover, in determining whether the words used in a statute are vague,
words must not only be taken in accordance with their plain meaning alone, but also in relation to
other parts of the statute. It is a rule that every part of the statute must be interpreted with reference
to the context, that is, every part of it must be construed together with the other parts and kept
subservient to the general intent of the whole enactment.256

As correctly noted by the OSG, in determining the definition of "private health care service provider,"
reference must be made to Section 4(n) of the RH Law which defines a "public health service
provider," viz:

(n) Public health care service provider refers to: (1) public health care institution, which is duly
licensed and accredited and devoted primarily to the maintenance and operation of facilities for
health promotion, disease prevention, diagnosis, treatment and care of individuals suffering from
illness, disease, injury, disability or deformity, or in need of obstetrical or other medical and nursing
care; (2) public health care professional, who is a doctor of medicine, a nurse or a midvvife; (3)
public health worker engaged in the delivery of health care services; or (4) barangay health worker
who has undergone training programs under any accredited government and NGO and who
voluntarily renders primarily health care services in the community after having been accredited to
function as such by the local health board in accordance with the guidelines promulgated by the
Department of Health (DOH) .

Further, the use of the term "private health care institution" in Section 7 of the law, instead of "private
health care service provider," should not be a cause of confusion for the obvious reason that they
are used synonymously.

The Court need not belabor the issue of whether the right to be exempt from being obligated to
render reproductive health service and modem family planning methods, includes exemption from
being obligated to give reproductive health information and to render reproductive health
procedures. Clearly, subject to the qualifications and exemptions earlier discussed, the right to be
exempt from being obligated to render reproductive health service and modem family planning
methods, necessarily includes exemption from being obligated to give reproductive health
information and to render reproductive health procedures. The terms "service" and "methods" are
broad enough to include the providing of information and the rendering of medical procedures.

The same can be said with respect to the contention that the RH Law punishes health care service
providers who intentionally withhold, restrict and provide incorrect information regarding reproductive
health programs and services. For ready reference, the assailed provision is hereby quoted as
follows:

SEC. 23. Prohibited Acts. - The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

(1) Knowingly withhold information or restrict the dissemination thereof, and/ or intentionally provide
incorrect information regarding programs and services on reproductive health including the right to
informed choice and access to a full range of legal, medically-safe, non-abortifacient and effective
family planning methods;
From its plain meaning, the word "incorrect" here denotes failing to agree with a copy or model or
with established rules; inaccurate, faulty; failing to agree with the requirements of duty, morality or
propriety; and failing to coincide with the truth. 257 On the other hand, the word "knowingly" means
with awareness or deliberateness that is intentional.258 Used together in relation to Section 23(a)(l),
they connote a sense of malice and ill motive to mislead or misrepresent the public as to the nature
and effect of programs and services on reproductive health. Public health and safety demand that
health care service providers give their honest and correct medical information in accordance with
what is acceptable in medical practice. While health care service providers are not barred from
expressing their own personal opinions regarding the programs and services on reproductive health,
their right must be tempered with the need to provide public health and safety. The public deserves
no less.

7-Egual Protection

The petitioners also claim that the RH Law violates the equal protection clause under the
Constitution as it discriminates against the poor because it makes them the primary target of the
government program that promotes contraceptive use . They argue that, rather than promoting
reproductive health among the poor, the RH Law introduces contraceptives that would effectively
reduce the number of the poor. Their bases are the various provisions in the RH Law dealing with
the poor, especially those mentioned in the guiding principles259 and definition of terms260 of the law.

They add that the exclusion of private educational institutions from the mandatory reproductive
health education program imposed by the RH Law renders it unconstitutional.

In Biraogo v. Philippine Truth Commission,261 the Court had the occasion to expound on the concept
of equal protection. Thus:

One of the basic principles on which this government was founded is that of the equality of right
which is embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the laws
is embraced in the concept of due process, as every unfair discrimination offends the requirements
of justice and fair play. It has been embodied in a separate clause, however, to provide for a more
specific guaranty against any form of undue favoritism or hostility from the government. Arbitrariness
in general may be challenged on the basis of the due process clause. But if the particular act
assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the
equal protection clause.

"According to a long line of decisions, equal protection simply requires that all persons or things
similarly situated should be treated alike, both as to rights conferred and responsibilities imposed." It
"requires public bodies and inst itutions to treat similarly situated individuals in a similar manner."
"The purpose of the equal protection clause is to secure every person within a state's jurisdiction
against intentional and arbitrary discrimination, whether occasioned by the express terms of a statue
or by its improper execution through the state's duly constituted authorities." "In other words, the
concept of equal justice under the law requires the state to govern impartially, and it may not draw
distinctions between individuals solely on differences that are irrelevant to a legitimate governmental
objective."

The equal protection clause is aimed at all official state actions, not just those of the legislature. Its
inhibitions cover all the departments of the government including the political and executive
departments, and extend to all actions of a state denying equal protection of the laws, through
whatever agency or whatever guise is taken.

It, however, does not require the universal application of the laws to all persons or things without
distinction. What it simply requires is equality among equals as determined according to a valid
classification. Indeed, the equal protection clause permits classification. Such classification,
however, to be valid must pass the test of reasonableness. The test has four requisites: (1) The
classification rests on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not
limited to existing conditions only; and (4) It applies equally to all members of the same class.
"Superficial differences do not make for a valid classification."
For a classification to meet the requirements of constitutionality, it must include or embrace all
persons who naturally belong to the class. "The classification will be regarded as invalid if all the
members of the class are not similarly treated, both as to rights conferred and obligations imposed. It
is not necessary that the classification be made with absolute symmetry, in the sense that the
members of the class should possess the same characteristics in equal degree. Substantial
similarity will suffice; and as long as this is achieved, all those covered by the classification are to be
treated equally. The mere fact that an individual belonging to a class differs from the other members,
as long as that class is substantially distinguishable from all others, does not justify the non-
application of the law to him."

The classification must not be based on existing circumstances only, or so constituted as to preclude
addition to the number included in the class. It must be of such a nature as to embrace all those who
may thereafter be in similar circumstances and conditions. It must not leave out or "underinclude"
those that should otherwise fall into a certain classification. [Emphases supplied; citations excluded]

To provide that the poor are to be given priority in the government's reproductive health care
program is not a violation of the equal protection clause. In fact, it is pursuant to Section 11, Article
XIII of the Constitution which recognizes the distinct necessity to address the needs of the
underprivileged by providing that they be given priority in addressing the health development of the
people. Thus:

Section 11. The State shall adopt an integrated and comprehensive approach to health development
which shall endeavor to make essential goods, health and other social services available to all the
people at affordable cost. There shall be priority for the needs of the underprivileged, sick, elderly,
disabled, women, and children. The State shall endeavor to provide free medical care to paupers.

It should be noted that Section 7 of the RH Law prioritizes poor and marginalized couples who are
suffering from fertility issues and desire to have children. There is, therefore, no merit to the
contention that the RH Law only seeks to target the poor to reduce their number. While the RH Law
admits the use of contraceptives, it does not, as elucidated above, sanction abortion. As Section 3(1)
explains, the "promotion and/or stabilization of the population growth rate is incidental to the
advancement of reproductive health."

Moreover, the RH Law does not prescribe the number of children a couple may have and does not
impose conditions upon couples who intend to have children. While the petitioners surmise that the
assailed law seeks to charge couples with the duty to have children only if they would raise them in a
truly humane way, a deeper look into its provisions shows that what the law seeks to do is to simply
provide priority to the poor in the implementation of government programs to promote basic
reproductive health care.

With respect to the exclusion of private educational institutions from the mandatory reproductive
health education program under Section 14, suffice it to state that the mere fact that the children of
those who are less fortunate attend public educational institutions does not amount to substantial
distinction sufficient to annul the assailed provision. On the other hand, substantial distinction rests
between public educational institutions and private educational institutions, particularly because
there is a need to recognize the academic freedom of private educational institutions especially with
respect to religious instruction and to consider their sensitivity towards the teaching of reproductive
health education.

8-Involuntary Servitude

The petitioners also aver that the RH Law is constitutionally infirm as it violates the constitutional
prohibition against involuntary servitude. They posit that Section 17 of the assailed legislation
requiring private and non-government health care service providers to render forty-eight (48) hours
of pro bono reproductive health services, actually amounts to involuntary servitude because it
requires medical practitioners to perform acts against their will.262

The OSG counters that the rendition of pro bono services envisioned in Section 17 can hardly be
considered as forced labor analogous to slavery, as reproductive health care service providers have
the discretion as to the manner and time of giving pro bono services. Moreover, the OSG points out
that the imposition is within the powers of the government, the accreditation of medical practitioners
with PhilHealth being a privilege and not a right.

The point of the OSG is well-taken.

It should first be mentioned that the practice of medicine is undeniably imbued with public interest
that it is both a power and a duty of the State to control and regulate it in order to protect and
promote the public welfare. Like the legal profession, the practice of medicine is not a right but a
privileged burdened with conditions as it directly involves the very lives of the people. A fortiori, this
power includes the power of Congress263 to prescribe the qualifications for the practice of professions
or trades which affect the public welfare, the public health, the public morals, and the public safety;
and to regulate or control such professions or trades, even to the point of revoking such right
altogether.264

Moreover, as some petitioners put it, the notion of involuntary servitude connotes the presence of
force, threats, intimidation or other similar means of coercion and compulsion.265 A reading of the
assailed provision, however, reveals that it only encourages private and non- government
reproductive healthcare service providers to render pro bono service. Other than non-accreditation
with PhilHealth, no penalty is imposed should they choose to do otherwise. Private and non-
government reproductive healthcare service providers also enjoy the liberty to choose which kind of
health service they wish to provide, when, where and how to provide it or whether to provide it all.
Clearly, therefore, no compulsion, force or threat is made upon them to render pro bono service
against their will. While the rendering of such service was made a prerequisite to accreditation with
PhilHealth, the Court does not consider the same to be an unreasonable burden, but rather, a
necessary incentive imposed by Congress in the furtherance of a perceived legitimate state interest.

Consistent with what the Court had earlier discussed, however, it should be emphasized that
conscientious objectors are exempt from this provision as long as their religious beliefs and
convictions do not allow them to render reproductive health service, pro bona or otherwise.

9-Delegation of Authority to the FDA

The petitioners likewise question the delegation by Congress to the FDA of the power to determine
whether or not a supply or product is to be included in the Essential Drugs List (EDL).266

The Court finds nothing wrong with the delegation. The FDA does not only have the power but also
the competency to evaluate, register and cover health services and methods. It is the only
government entity empowered to render such services and highly proficient to do so. It should be
understood that health services and methods fall under the gamut of terms that are associated with
what is ordinarily understood as "health products."

In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No. 9711 reads:

SEC. 4. To carry out the provisions of this Act, there is hereby created an office to be called the
Food and Drug Administration (FDA) in the Department of Health (DOH). Said Administration shall
be under the Office of the Secretary and shall have the following functions, powers and duties:

"(a) To administer the effective implementation of this Act and of the rules and regulations
issued pursuant to the same;

"(b) To assume primary jurisdiction in the collection of samples of health products;

"(c) To analyze and inspect health products in connection with the implementation of this Act;

"(d) To establish analytical data to serve as basis for the preparation of health products
standards, and to recommend standards of identity, purity, safety, efficacy, quality and fill of
container;
 "(e) To issue certificates of compliance with technical requirements to serve as basis for the
issuance of appropriate authorization and spot-check for compliance with regulations
regarding operation of manufacturers, importers, exporters, distributors, wholesalers, drug
outlets, and other establishments and facilities of health products, as determined by the FDA;

"x x x

"(h) To conduct appropriate tests on all applicable health products prior to the issuance of
appropriate authorizations to ensure safety, efficacy, purity, and quality;

"(i) To require all manufacturers, traders, distributors, importers, exporters, wholesalers,

retailers, consumers, and non-consumer users of health products to report to the FDA any
incident that reasonably indicates that said product has caused or contributed to the death,
serious illness or serious injury to a consumer, a patient, or any person;

"(j) To issue cease and desist orders motu propio or upon verified complaint for health
products, whether or not registered with the FDA Provided, That for registered health
products, the cease and desist order is valid for thirty (30) days and may be extended for
sixty ( 60) days only after due process has been observed;

"(k) After due process, to order the ban, recall, and/or withdrawal of any health product found
to have caused death, serious illness or serious injury to a consumer or patient, or is found to
be imminently injurious, unsafe, dangerous, or grossly deceptive, and to require all
concerned to implement the risk management plan which is a requirement for the issuance
of the appropriate authorization;

x x x.

As can be gleaned from the above, the functions, powers and duties of the FDA are specific to
enable the agency to carry out the mandates of the law. Being the country's premiere and sole
agency that ensures the safety of food and medicines available to the public, the FDA was equipped
with the necessary powers and functions to make it effective. Pursuant to the principle of necessary
implication, the mandate by Congress to the FDA to ensure public health and safety by permitting
only food and medicines that are safe includes "service" and "methods." From the declared policy of
the RH Law, it is clear that Congress intended that the public be given only those medicines that are
proven medically safe, legal, non-abortifacient, and effective in accordance with scientific and
evidence-based medical research standards. The philosophy behind the permitted delegation was
explained in Echagaray v. Secretary of Justice,267 as follows:

The reason is the increasing complexity of the task of the government and the growing inability of
the legislature to cope directly with the many problems demanding its attention. The growth of
society has ramified its activities and created peculiar and sophisticated problems that the legislature
cannot be expected reasonably to comprehend. Specialization even in legislation has become
necessary. To many of the problems attendant upon present day undertakings, the legislature may
not have the competence, let alone the interest and the time, to provide the required direct and
efficacious, not to say specific solutions.

10- Autonomy of Local Governments and the Autonomous Region

of Muslim Mindanao (ARMM)

As for the autonomy of local governments, the petitioners claim that the RH Law infringes upon the
powers devolved to local government units (LGUs) under Section 17 of the Local Government Code.
Said Section 17 vested upon the LGUs the duties and functions pertaining to the delivery of basic
services and facilities, as follows:

SECTION 17. Basic Services and Facilities. –

 (a) Local government units shall endeavor to be self-reliant and shall continue exercising the
powers and discharging the duties and functions currently vested upon them. They shall also
discharge the functions and responsibilities of national agencies and offices devolved to
them pursuant to this Code. Local government units shall likewise exercise such other
powers and discharge such other functions and responsibilities as are necessary,
appropriate, or incidental to efficient and effective provision of the basic services and
facilities enumerated herein.

(b) Such basic services and facilities include, but are not limited to, x x x.

While the aforementioned provision charges the LGUs to take on the functions and
responsibilities that have already been devolved upon them from the national agencies on
the aspect of providing for basic services and facilities in their respective jurisdictions,
paragraph (c) of the same provision provides a categorical exception of cases involving
nationally-funded projects, facilities, programs and services.268 Thus:

(c) Notwithstanding the provisions of subsection (b) hereof, public works and infrastructure
projects and other facilities, programs and services funded by the National Government
under the annual General Appropriations Act, other special laws, pertinent executive orders,
and those wholly or partially funded from foreign sources, are not covered under this Section,
except in those cases where the local government unit concerned is duly designated as the
implementing agency for such projects, facilities, programs and services. [Emphases
supplied]

The essence of this express reservation of power by the national government is that, unless an LGU
is particularly designated as the implementing agency, it has no power over a program for which
funding has been provided by the national government under the annual general appropriations act,
even if the program involves the delivery of basic services within the jurisdiction of the LGU.269 A
complete relinquishment of central government powers on the matter of providing basic facilities and
services cannot be implied as the Local Government Code itself weighs against it.270

In this case, a reading of the RH Law clearly shows that whether it pertains to the establishment of
health care facilities,271 the hiring of skilled health professionals,272 or the training of barangay health
workers,273 it will be the national government that will provide for the funding of its implementation.
Local autonomy is not absolute. The national government still has the say when it comes to national
priority programs which the local government is called upon to implement like the RH Law.

Moreover, from the use of the word "endeavor," the LG Us are merely encouraged to provide these
services. There is nothing in the wording of the law which can be construed as making the
availability of these services mandatory for the LGUs. For said reason, it cannot be said that the RH
Law amounts to an undue encroachment by the national government upon the autonomy enjoyed by
the local governments.

The ARMM

The fact that the RH Law does not intrude in the autonomy of local governments can be equally
applied to the ARMM. The RH Law does not infringe upon its autonomy. Moreover, Article III,
Sections 6, 10 and 11 of R.A. No. 9054, or the organic act of the ARMM, alluded to by petitioner
Tillah to justify the exemption of the operation of the RH Law in the autonomous region, refer to the
policy statements for the guidance of the regional government. These provisions relied upon by the
petitioners simply delineate the powers that may be exercised by the regional government, which
can, in no manner, be characterized as an abdication by the State of its power to enact legislation
that would benefit the general welfare. After all, despite the veritable autonomy granted the ARMM,
the Constitution and the supporting jurisprudence, as they now stand, reject the notion of imperium
et imperio in the relationship between the national and the regional governments.274 Except for the
express and implied limitations imposed on it by the Constitution, Congress cannot be restricted to
exercise its inherent and plenary power to legislate on all subjects which extends to all matters of
general concern or common interest.275
11 - Natural Law

With respect to the argument that the RH Law violates natural law,276 suffice it to say that the Court
does not duly recognize it as a legal basis for upholding or invalidating a law. Our only guidepost is
the Constitution. While every law enacted by man emanated from what is perceived as natural law,
the Court is not obliged to see if a statute, executive issuance or ordinance is in conformity to it. To
begin with, it is not enacted by an acceptable legitimate body. Moreover, natural laws are mere
thoughts and notions on inherent rights espoused by theorists, philosophers and theologists. The
jurists of the philosophical school are interested in the law as an abstraction, rather than in the actual
law of the past or present.277 Unless, a natural right has been transformed into a written law, it cannot
serve as a basis to strike down a law. In Republic v. Sandiganbayan,278 the very case cited by the
petitioners, it was explained that the Court is not duty-bound to examine every law or action and
whether it conforms with both the Constitution and natural law. Rather, natural law is to be used
sparingly only in the most peculiar of circumstances involving rights inherent to man where no law is
applicable.279

At any rate, as earlier expounded, the RH Law does not sanction the taking away of life. It does not
allow abortion in any shape or form. It only seeks to enhance the population control program of the
government by providing information and making non-abortifacient contraceptives more readily
available to the public, especially to the poor.

Facts and Fallacies

and the Wisdom of the Law

In general, the Court does not find the RH Law as unconstitutional insofar as it seeks to provide
access to medically-safe, non-abortifacient, effective, legal, affordable, and quality reproductive
healthcare services, methods, devices, and supplies. As earlier pointed out, however, the religious
freedom of some sectors of society cannot be trampled upon in pursuit of what the law hopes to
achieve. After all, the Constitutional safeguard to religious freedom is a recognition that man stands
accountable to an authority higher than the State.

In conformity with the principle of separation of Church and State, one religious group cannot be
allowed to impose its beliefs on the rest of the society. Philippine modem society leaves enough
room for diversity and pluralism. As such, everyone should be tolerant and open-minded so that
peace and harmony may continue to reign as we exist alongside each other.

As healthful as the intention of the RH Law may be, the idea does not escape the Court that what it
seeks to address is the problem of rising poverty and unemployment in the country. Let it be said
that the cause of these perennial issues is not the large population but the unequal distribution of
wealth. Even if population growth is controlled, poverty will remain as long as the country's wealth
remains in the hands of the very few.

At any rate, population control may not be beneficial for the country in the long run. The European
and Asian countries, which embarked on such a program generations ago , are now burdened with
ageing populations. The number of their young workers is dwindling with adverse effects on their
economy. These young workers represent a significant human capital which could have helped them
invigorate, innovate and fuel their economy. These countries are now trying to reverse their
programs, but they are still struggling. For one, Singapore, even with incentives, is failing.

And in this country, the economy is being propped up by remittances from our Overseas Filipino
Workers. This is because we have an ample supply of young able-bodied workers. What would
happen if the country would be weighed down by an ageing population and the fewer younger
generation would not be able to support them? This would be the situation when our total fertility rate
would go down below the replacement level of two (2) children per woman.280

Indeed, at the present, the country has a population problem, but the State should not use coercive
measures (like the penal provisions of the RH Law against conscientious objectors) to solve it.
Nonetheless, the policy of the Court is non-interference in the wisdom of a law.
x x x. But this Court cannot go beyond what the legislature has laid down. Its duty is to say what the
law is as enacted by the lawmaking body. That is not the same as saying what the law should be or
what is the correct rule in a given set of circumstances. It is not the province of the judiciary to look
into the wisdom of the law nor to question the policies adopted by the legislative branch. Nor is it the
business of this Tribunal to remedy every unjust situation that may arise from the application of a
particular law. It is for the legislature to enact remedial legislation if that would be necessary in the
premises. But as always, with apt judicial caution and cold neutrality, the Court must carry out the
delicate function of interpreting the law, guided by the Constitution and existing legislation and
mindful of settled jurisprudence. The Court's function is therefore limited, and accordingly, must
confine itself to the judicial task of saying what the law is, as enacted by the lawmaking body.281

Be that as it may, it bears reiterating that the RH Law is a mere compilation and enhancement of the
prior existing contraceptive and reproductive health laws, but with coercive measures. Even if the
Court decrees the RH Law as entirely unconstitutional, there will still be the Population Act (R.A. No.
6365), the Contraceptive Act (R.A. No. 4729) and the reproductive health for women or The Magna
Carta of Women (R.A. No. 9710), sans the coercive provisions of the assailed legislation. All the
same, the principle of "no-abortion" and "non-coercion" in the adoption of any family planning
method should be maintained.

WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the Court declares R.A. No.
10354 as NOT UNCONSTITUTIONAL except with respect to the following provisions which are
declared UNCONSTITUTIONAL:

1) Section 7 and the corresponding provision in the RH-IRR insofar as they: a) require
private health facilities and non-maternity specialty hospitals and hospitals owned and
operated by a religious group to refer patients, not in an emergency or life-threatening case,
as defined under Republic Act No. 8344, to another health facility which is conveniently
accessible; and b) allow minor-parents or minors who have suffered a miscarriage access to
modem methods of family planning without written consent from their parents or guardian/s;

2) Section 23(a)(l) and the corresponding provision in the RH-IRR, particularly Section 5 .24
thereof, insofar as they punish any healthcare service provider who fails and or refuses to
disseminate information regarding programs and services on reproductive health regardless
of his or her religious beliefs.

3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they allow a
married individual, not in an emergency or life-threatening case, as defined under Republic
Act No. 8344, to undergo reproductive health procedures without the consent of the spouse;

4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they limit the
requirement of parental consent only to elective surgical procedures.

5) Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly Section 5.24
thereof, insofar as they punish any healthcare service provider who fails and/or refuses to
refer a patient not in an emergency or life-threatening case, as defined under Republic Act
No. 8344, to another health care service provider within the same facility or one which is
conveniently accessible regardless of his or her religious beliefs;

6) Section 23(b) and the corresponding provision in the RH-IRR, particularly Section 5 .24
thereof, insofar as they punish any public officer who refuses to support reproductive health
programs or shall do any act that hinders the full implementation of a reproductive health
program, regardless of his or her religious beliefs;

7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the rendering of pro
bona reproductive health service in so far as they affect the conscientious objector in
securing PhilHealth accreditation; and

8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the qualifier "primarily" in
defining abortifacients and contraceptives, as they are ultra vires and, therefore, null and
 void for contravening Section 4(a) of the RH Law and violating Section 12, Article II of the
Constitution.

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

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

WE CONCUR:

Tingnan ang aking opinyong

Sumasang-ayon at Sumasalungat
MARIA LOURDES P. A. SERENO
Chief Justice

See Concurring Opinion

PRESBITERO J. VELASCO, JR.
ANTONIO T. CARPIO
Associate Justice
Associate Justice

With Separate concurring opinion See: Separate Concurring Opinion

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION
Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

See Concurring and dissenting See Concurring Opinion

MARIANO C. DEL CASTILLO ROBERTO A. ABAD
Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

See concurring and dissenting See Concurring and Dissenting Opinion

BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE
Associate Justice Associate Justice

See Separate dissent

MARVIC MARIO VICTOR F. LEONEN
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I hereby certify that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court.

MARIA LOURDES P. A. SERENO

Chief Justice
Footnotes

1
Islamic Da'wah Council of the Philippines, Inc. v. Office of the Executive Secretary, G.R.
No. 153888, July 9, 2003; 405 SCRA 497, 504.

2
See <http://wn.com/pro-rh_ bill_vs_anti-rh_ bi ll>, last visited on November 5, 20 13; See
also <http://www.abs-cbnnews.com/nation/04/ 19/ I O/h ontiveros-tatad-debate-rh-bill>, last
vi sited on November 5, 201 3.

3
See <http ://news info .inqu irer.net/inquirerheadlines/nation/view/ 20110321-
326743/Stickers-spread-anti-RH-bill-message>, last visited on November 5, 2 01 3; See also
<http ://www.gmanetwork.com/news/story/ 218169/news/nation/carlos-celdran-distributes-
pro-rh-stickers-in-quiapo>, last visited on November 5, 201 3.

4
See <http ://newsinfo. inquirer.net/241 737/massive-church-rally-set-against-rh-bill>, last
visited November 5, 201 3; See also <http://www.splendorofthechurch.eom.ph/201 3/04/29/fi
lipino-catholics-flex-muscles-in-poll-clout/>, last visited November 5, 2013.

5
With Prayer for the issuance of a Temporary Restraining Order/ Writ of Preliminary
Injunction; docketed as G.R. No. 2048 19; rollo (G.R. No. 204819), pp. 3-32.

6
With Prayer for the Urgent Issuance of a Temporary Restraining Order and/or Writ of
Preliminary Injunction; docketed as G.R. No. 204934; rollo (G.R. No. 204934), pp. 3-76.

7
Also proceeding in her personal capacity a citizen and as a member of the Bar.

8
Spouses Reynaldo S. Luistro & Rosie B. Luistro, Jose S. Sandejas & Elenita S.A.
Sandejas, Arturo M. Gorrez & Marietta C . Gorrez, Salvador S. Mante, Jr. & Hazeleen L.
Mante, Rolando M. Bautista & Maria Felisa S. Bautista, Desiderio Racho & Traquilina Racho,
Femand Antonio A. Tansingco & Carol Anne C. Tansingco for themselves and on behalf of
their minor children, Therese Antonette C. Tansingco, Lorenzo Jose C. Tansingco, Miguel
Fernando C . Tangsingco, Carlo Josemaria C. Tansingco & Juan Paolo C. Tansingco,
Spouses Mariano V. Araneta & Eileen Z. Araneta for themselves and on behalf of their minor
children, Ramon Carlos Z. Araneta & Maya Angelica Z. Araneta, Spouses Renato C. Castor
& Mildred C. Castor for themselves and on behalf of their minor children, Renz Jeffrey C.
Castor, Joseph Ramil C. Castor, John Paul C. Castor & Raphae l C. Castor, Spouses
Alexander R. Racho & Zara Z. Racho for themselves a nd on behalf of their minor chi ldren
Margarita Racho, Mikaela Racho, Martin Racho, Mari Racho & Manolo Racho, Spouses
Alfred R. Racho & Franc ine Y. Racho for themse lves and on behalf of their minor children
Michael Racho, Mariana Racho, Rafael Racho, Maxi Racho, C hessie Racho & Laura
Racho, Spouses David R. Racho & Armilyn A. Racho for themselves and on behalf of the ir
minor child Gabrie l Racho, Mindy M. Juatas and on behalf of her minor children Elijah
General Juatas and Elian Gabriel Juatas, Salvacion M. Monteiro, Emily R. Laws, Joseph R.
Laws & Katrina R. Laws

9
With Prayer for Injunction; docketed a s G.R. No. 204957.

10
With Prayer for the issuance of a Temporary Restraining Order/ Writ of Preliminary
Injunction; docketed as G.R. No. 204988; rollo (G.R. No. 204988), pp. 5-3 5.

11
Through and together with its president Nestor B. Lumicao, M.D.

Through and together with its representative/ member of the school board Dr. Rodrigo M.
12

Alenton, M.D.
 Rosemarie R. Alenton, Imelda G. Ibarra, Cpa, Lovenia P. Naces, Phd. , Anthony G. Nagac,
13

Earl Anthony C. Gambe And, Marlon I. Yap.

Docketed as G.R. No. 205003; Petition is entitled "Petition (To Declare As Unconstitutional
14

Republic Act No. 10354)." The petition fails to provide any description as to nature of the suit
under the Rules of Court; rollo (G.R. No. 205003), pp. 3-40.

With prayer for the issuance of a Temporary Restraining Order; docketed as G.R. No.
15

205043 ; rollo (G.R. No. 205043), pp. 3-16.

16
Through its vice president and co-founder, Eduardo B.Olaguer.

17
With Prayer for the issuance of a Temporary Restraining Order/ Writ of Prel iminary
Injunction; docketed as G.R. No. 205 138; rollo (G.R. No. 205138), pp. 3-50.

18
Through and together with its president Atty. Ricardo M. Ribo.

Atty. Lino E.A. Dumas, Romeo B. Almonte, Osmundo C. Orlanes, Arsenio Z. Menor,
19

Samuel J. Yap, Jaime F. Mateo, Rolly Siguan, Dante E. Magdangal, Michael Eugenio 0.
Plana, Bienvenido C. Miguel, Jr., Landrito M. Diokno And Baldomero Falcone.

20
With Prayer for the issuance of a Temporary Restraining Order/ Writ of Pre lim inary
Injunction; The petition fails to provide any description as to nature of the suit under the
Rules of Court; docketed as G.R. No. 205478; rollo (G.R. No. 205478), pp. 3-26.

Jacqueline H. King, M.D., Cynthia T. Domingo, M.D., Josephine Millado-Lumitao, M.D.,

21

Anthony Perez, Michael Anthony G. Mapa, Carlos Antonio Palad, Wilfredo Jose, Claire
Navarro, Anna Cosio, Gabrie l Dy Liacco

22
With Prayer for the issuance of a Temporary Restraining Order/ Writ of Prelim inary
Injunction; docketed as G.R. No. 20549 1; rollo (G.R. No. 20549 1), pp. 3-13.

23
With Prayer for the issuance of a Temporary Restraining Order/ Writ of Preliminary
Injunction; docketed as G.R. No. 205720; rollo (G.R. No. 205720), pp. 3-90.

24
Through and together with its executive director, Loma Melegrito.

Joselyn B. Basilio, Robert z. Cortes, Ariel A. Crisostomo, Jeremy I. Gatdula, Cri stina A.
25

Montes, Raul Antonio A. N idoy, Winston Conrad B. Padojinog, Rufino L. Policarpio III.

26
Docketed as G.R. No. 206355, rollo (G.R. No. 206355), pp. 3-32.

Through and together with its co-petitioners, Attys. Ramon Pedrosa, Cita Borromeo-Garcia,
27

Stella Acedera, and Berteni Cataluna Causing .

With prayer for a Writ of Preliminary Injunction; docketed as G.R. No. 207 111 ; rollo (G.R.
28

No. 207111 ), pp. 3-51.

Mary M. lmbong, Anthony Victorio B. Lumicao, Joseph Martin Q. Verdejo, Antonio Emma
29

R. Roxas and Lota Lat-Guerrero.

With prayer for a Writ of Pre liminary Injunction; docketed as G.R. No. 207 172; rollo (G.R.
30

No. 207 172), pp. 3-56.

Spouses Juan Carlos Artadi Sarmiento and Francesca Isabelle Besinga-Sarmiento, and
31

Spouses Luis Francis A. Rodrigo, Jr. and Deborah Marie Veronica N. Rodrigo.
32
Docketed as G.R. No. 2 07563; rollo (G.R. No. 2 07563), pp. 3-1 5.

33
Rollo (G.R. No. 204934), pp. 138-1 55.

34
Rollo (G.R. No. 204819), pp. 124 8-1 260.

35
Petition, lmbong v. Ochoa, rollo (G.R. No. 20481 9), pp. 8-1 O; Petit ion, Alliance for the
Family Foundation, Inc. (ALFI) v. Ochoa, rol!o (G.R. No. 20493 4), pp. 15-25; Petition, Serve
Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G.R. No. 204988), pp. 13-1 5; Petition,
Olaguer v. Ona, rollo (G.R. No. 205043), pp. 10-11 ; Petition, Philippine Alliance of
XSeminarians (PAX) v. Ochoa, rol!o (G.R. No. 205138), pp. 8-36; Petition, Echavez v.
Ochoa, rollo (G.R. N o. 205478), pp. 10-1 3; Petition, Millennium Saint Foundation, Inc. v.
Office of the President, rollo (G.R. No . 20635 5), pp . 11-15 ; Petition, Juat v. Ochoa, rollo
(G.R. No. 207111 ), pp. 17- 18; Petition, Buhay Party-list (BUHAY) v. Ochoa, rollo (G.R. No.
204819), pp. 1255- 1256.

36
Petition, Alliance for the Family Foundation, Inc. (ALFI) v. Ochoa, rollo (G.R. No. 204934),
pp. 26-28; Petition, Serve Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G. R. No. 204988),
pp. 15-1 6; Petition, Echavez v. Ochoa, rollo (G.R. N o. 205478), pp. 13- 14; Petition, Pro-
Life Philippines Foundation, Inc. v. Ochoa, rollo (G.R. No. 205720), pp. 30-35.

Petition, Task Force for the Family and Life Visayas, Inc. v. Ochoa, rollo (G.R. No.
37

204957), pp. 26-27; Petition, Philippine Alliance of XSeminarians (PAX) v. Ochoa, rollo (G.R.
No. 205138), pp. 39-44; Petition, Tatad v. Office of the President, rol/o (G. R. No. 205491),
pp. 8-9; Petition, Pro-Life Philippines Foundation, Inc. v. Ochoa, rollo (G.R. No. 205720), pp .
59-67; Petition, Millennium Saint Foundation, Inc. v. Office of the President, rollo (G.R. No. 2
06355), pp. 25-26.

38
Petition, lmbong v. Ochoa, rollo (G.R. No. 2048 I 9), pp. 20-22; Petition, Alliance for the
Family Foundation, inc. (ALFI) v. Ochoa, rollo (G.R. No. 204934), pp. 34-38; Petition, Task
Force for the Family and Life Visayas, Inc. v. Ochoa, rollo (G.R. No. 204957), pp. 26-27;
Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 6-7; Petition, Pro-Life Philippines
Foundation, Inc. v. Ochoa, rollo (G.R. No. 205720), pp. 56-75; Petition, Millennium Saint
Foundation, Inc. v. Office of the President, rollo (G.R. No. 206355), pp. 16-22; Petition, Juat
v. Ochoa, rollo (G.R. No. 207 111), pp.28-33 ; Petition, Couples for Christ Foundation, Inc. v.
Ochoa, ro/lo (G.R. No. 207 172), pp. 12- 16.

39
Section 5.23 Skilled Health Professional as a Conscientious Objector. ln order to be
considered a conscientious objector, a skilled health professional shall comply with the
following requirements:

a) Submission to the DOH of an affidavit stating the modem family planning methods
that he or she refuses to provide and his or her reasons for objection;

b) Posting of a notice at the entrance of the clinic or place of practice, in a prominent

location and using a clear/legible font, enumerating the reproductive health services
he or she refuses to provide; and c) Other requirements as determined by the DOH.
xxx.

Provided, That skilled health professionals who are pub lic officers such as, but not
limited to, Provincial, City, or Municipal Health Officers, medical officers, medical
specialists, rural health physicians, hospital staff nurses, public health nurses, or
rural health midwives, who are specifically charged with the duty to implement these
Rules cannot be considered as conscientious objectors. xx x (Emphases Ours)

40
Joint Memorandum, lmbong v. Ochoa, rollo (G.R. No. 204819), pp. 26 17-26 19.
41
Petition, Alliance for the Family Foundation, Inc. (ALFI) v. Ochoa, ro/lo (G.R. No. 204934),
p. 40; Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp.6-7; Petition, Pro-Life
Philippines Foundation, In c. v. Ochoa, rollo (G.R. No. 205720), p. 81.

Petition, Pro-l ife Philippines Foundation, Inc. v. Ochoa, rollo (G. R. No. 205720), pp. 63-
42

64; Petition, Couples for Christ Foundation, Inc. v. Ochoa, rollo (G.R. No. 207172), pp. 20-
23.

Petition, Serve Life Cagayan De Oro City, In c. v. Ochoa, rollo, (G.R. No . 204988), pp. 16-
43

48 ; Petition , Echavez v. Ochoa, rollo (G.R. No. 2 05478), pp. 7-9.

Petition, Serve Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G.R. No. 204988), pp. 16-
44

48; Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 7-9.

Petition, Task Force for the Family and Life Visayas, Inc. v. Ochoa, rollo (G.R. No.
45

204957), pp. 30-3 1; Memorandum, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 1247-
1250; Petition, Millennium Saint Foundation, Inc. v. Office of the President, rollo (G.R. No.
2063 55), pp. 25; Petition, Couples for Christ Foundation, Inc. v. Ochoa, rollo (G.R. No. 207
172 ), pp. 43-45.

Joint Memorandum, Im bong v. Ochoa, rollo (G.R. No. 2048 19), pp. 2626-2637; Petition,
46

Alcantara, pp. 9-1 3; rollo, (G.R. No. 204934), pp. 146- 150; Petition, Pro-l ife Philippines
Foundation, Inc. v. Ochoa, rollo (G.R. No. 205720), pp. 78-81.

47
Petition, Couples for Christ Foundation, Inc. v. Ochoa, ro//o (G.R. No. 207172), pp. 32-34.

48
Petition, l mbong v. Ochoa, rollo (G.R. No. 2048 19), pp. 2623-2626; Petition, Alcantara,
pp.5-9; rollo, (G.R. No. 204934), pp. 142- 148; Petition, Serve life Cagayan De Oro City, Inc.
v. Ochoa, rollo, (G.R. No. 204988), pp. 20-21; Petition, Bugarin v. Office of the President,
rollo (G. R. No. 205003), pp. 14- 16; Petit ion, Millennium Saint Foundation, Inc. v. Office of
the President, rollo (G. R. No. 206355), p. 16; Petition, Couples for Christ Foundation, In c. v.
Ochoa, ro//o (G. R. No. 207 172), pp. 16-20.

Petition, Imbong v. Ochoa, rollo (G. R. No. 2 0481 9), pp. 14- 19; Petition, Alliance for the
49

Family Foundation, Inc. (ALFI) v. Ochoa, rollo (G.R. No. 204934), pp. 42-44; Petition, Task
Force for the Family and Life Visayas, Inc. v. Ochoa, rollo (G.R. No. 204957), pp. 21-25;
Petition, Millennium Saint Foundation, Inc. v. Office of the President, rollo (G.R. No. 206355),
pp. 23-25; Petition, Couples for Christ Foundation, Inc. v. Ochoa, rollo (G.R. No. 207172),
pp. 23 -28.

Jo int Memorandum, Jmbong v. Ochoa, rollo (G.R. No . 204819), pp. 257 1-2574; Petition,
50

Olaguer v. Ona, rollo (G.R. No. 205043), pp. 11-1 2; Petition, Tatad v. Office of the
President, rollo (G. R. No. 205491), pp. 7-8; Petition, Couples for Christ Foundation, Inc. v.
Ochoa, rollo (G. R. No. 207172), pp. 28-32.

Petition, Alliance for the Family Foundation, Inc. (ALFI) v. Ochoa, rollo (G.R. No. 204934),
51

pp. 28-33; Petition, Philippine Alliance of XSeminarians (PAX) v. Ochoa, rollo (G. R. No.
205138), pp. 37-38.

52
Section 26. ( I) Every bill passed by the Congress shall embrace only one subject which
shall be expressed in the title thereof; Task Force for the Family and l ife Visayas, Inc. v.
Ochoa, rollo (G.R. No. 204957), pp. 6-1 O; Echavez v. Ochoa, rollo (G. R. No. 205478), pp.
9-10.

53
Petition, Pro-Life Philippines Foundation, Inc. v. Ochoa, rollo (G.R. No. 205720), pp. 14-30.
54
Memorandum, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 894-900; Petition, Couples
for Christ Foundation, Inc. v. Ochoa, rollo (G.R. No. 207172), pp. 45-48; Petition, Tillah v.
Executive Secretary, rollo (G.R. No. 207563) pp. 6-12.

55
Rollo (G .. R. No. 204819), pp. 362-480.

56
Rollo (G .. R. No. 204819), pp. 195-353.

57
Rollo (G .. R. No. 204819), pp. 487-528.

58
Rollo (G.R. No. 204934), pp. 871-1007.

59
Rollo (G.R. No. 204819), pp.1 306-1334; rollo, (G.R. No. 204934), pp. 98-132.

60
Rollo (G.R. No. 204819), pp. 736-780.

61
In her Motion for Leave to Intervene, Senator Pilar Ju liana S. Cayetano manifested that
she was adopting as her own the arguments raised by respondents Dr. Esperanza I. Cabral,
Jamie Galvez-Tan, and Dr. Alberto G. Romualdez in their Petition for Intervention; See rollo
(G..R. No. 20481 9), pp. 173 1-1 783. After being directed by the Court to file their respective
memoranda, intervenors Dr. Esperanza I. Cabral, Jamie Galvez-Tan, and Dr. Alberto G.
Romualdez manjfested on November 18, 201 3, that they were adopting the arguments
raised by Congressman Lagman in his Joint Memorandum; See rollo (G..R. No. 20481 9),
pp. 3061-3070. On November 26, 201 3, Senator Pilar Juliana S. Cayetano file d her
separate Memorandum ; see, rollo (G. .R. No. 204819), pp. 3032-3059.

62
Resolution dated March 15, 201 3.

63
Resolution, dated July 16, 201 3.

64
In its Resolution, dated August 27, 201 3, the Court required the parties to also include the
following in their respective memoranda:

1. What is the relation of the first portion of Section 7 on Access to Family Planning
to the theory that R.A. No. I 0354 is an anti-poor program that seeks to reduce the
population of the poor?

2. How is the second paragraph of the same section related to the proposition that
R.A. No. 10354 encourages sex among minors?

3. In relation to Section 23 on Prohibited Acts, where in the law can you find the
definition of the term ' health care service provider' ? Is the definition of a ' public
health care service provider ' found in Section 4, paragraph (n) of the law sufficient
for the Court to understand the meaning of a 'private health care service provider' or
should the Court refer to the Implementing Rules and Regulations which refer to
'health care providers'?

4. With respect to ' health care providers' under the Implementing Rules and
Regulations, does it make a difference that they are called ' health care providers'
and not ' health care service providers'? Does the fact that there is a missing word
indicate that there is a difference or that the tautology being proposed actually refers
to different objects? If in the affirmative, is there enough basis to say that the law is a
criminal statute that has sufficient definitions for purposes of punitive action?

5. In relation to Section 23(a)(l), how will the State be able to locate the programs
and services on which the health care service provider has the duty to give
information? If the terminology of ' health care service provider ' includes ' private
health care service provider', which includes private hospitals and private doctors, is
the State duty-bound to consequently provide these providers with information on the
programs and services that these providers should give information on?

6. As regards programs, is there a duty on the part of the State to provide a way by
which private health care service providers can have access to information on
reproductive health care programs as defined in Section 4, paragraph (r)? What is
the implication of the fact that the law requires even private parties with the duty to
provide information on government programs on the criminal liability of private health
care service providers?

7. As regards services, what is the distinction between 'information' and 'services'

considering that 'services' in different portions of the statute include providing of
information?

8. What are the specific elements of every sub-group of crime in Section 23 and what
are the legal bases for the determination of each element?

9. Are there existing provisions in other statutes relevant to the legal definitions found
in R.A. No. 10354?

10. Why is there an exemption for the religious or conscientious objector in

paragraph (3) of Section 23 and not in paragraphs ( 1) and (2)? What is the
distinction between paragraph (3) and paragraphs ( 1) and (2)?

11 . Section 23(a)(3) penalizes refusal to extend quality health care services and
information 'on account of the person's marital status, gender, age, religious
convictions, personal circumstances, or nature of work.' What if the refusal is not on
account of one's marital status, gender, age, religious convictions, personal
circumstances, or nature of work, or what if the refuser simply does not state the
reason for the refusal? Will there still be a criminal liability under Section 23(a)(3)?

12. Still on Section (23 )(a)(3) on referring a person to another facility or provider, is
this the same or analogous to referral of a person to seek second opinion? What is
the medical standard for the provision of a second opinion? In referring to another
professional or service provider for a second opinion, is it the patient who is not
comfortable with the opinion given by the first doctor that triggers the duty or option
to refer? How is it different with the situation in Section 23(a)(3) when it is the doctor
who is not comfortable about giving an opinion? Is the difference legally material?

13. How does Section 23, paragraph (c) relate to Article 134 the Labor Code which
requires employers to provide family planning services?

14. Section 24 provides that in case the offender is a juridical person, the penalties in
the statute shall be imposed on the president or any responsible officer. For each
offense in Section 23, how will the corporate officer be made responsible if there is
no actual participation by the hospital board directors or officers of such action? Does
Section 24 in relation to Section 23 require corporate action? What is the situation
being contemplated in the second paragraph of Section 24 before there can be
accountability for criminal violations?

15. Section 7 provides that access of minors to information and family planning
services must be with the written consent of parents or guardians. Is the re a penalty
in the law for those who will make these information and services (e.g. ,
contraceptives) available to minors without the parent's consent? How does this
relate to Section 14 which requires the Department of Education to formulate a
curriculum which 'shall be used by public schools' and ' may be adopted by private
schools'? Is there a penalty for teaching sex education without the parents' or
guardians' written consent? Correlatively, is there a penalty for private schools which
 do not teach sex education as formulated by the DepEd considering the use of the
word ' may'?

65
Section I , R.A. No. 4729

Entitled "An Act Regulating the Practice of Pharmacy and Setting Standards of
66

Pharmaceutical Education in the Philippines."

See http://www.pop.org/content/coercive-population-ploys-in-ph ilippines-1428, last visited

67

October 17, 2013.

68
Entitled "Revising the Population Act of Nineteen Hundred And Seventy-One."

<http://www.senate.gov.ph/publications/PB%202009-03%20-
69

%20Promoting%20Reproductive%20Health.pdf->, last visited October 17, 2013.

70
Held in Cairo, Egypt from September 5- 13, 1994.

71
Section 17, R.A. 97 10.

72
See <www. nscb.gov.ph/secstat/d)pop.asp>; last accessed February 2 0, 2014.

73
Alliance /or the Family Foundation, Inc. (A LFI) v. Ochoa, rollo (G.R. No. 204934), p. 1408.

74
Id.

75
Consolidated Comment, OSG, rollo (G. R. No. 204819), p. 376.

76
Consolidated Comment, OSG, rollo (G. R. No. 20481 9), p. 377.

77
Consolidated Comment, OSG, rollo (G. R. No. 20481 9), p. 378.

78
G.R. No. 178552, October 5, 20 10, 632 SCRA 146, 166.

79
Consolidated Comment, OSG, rollo (G. R. No. 20481 9), p. 385, 387-388.

80
Consolidated Comment, OSG, rollo (G.R. No. 2048 19), pp .3 81-384.

81
Angara v. Electoral Commission, 63 Phil. 139, 158 ( 1936).

82
Constitution, Art. VI, Sec. I.

83
Constitution, Art. Vll , Sec. I.

84
Constitution, Art. VIII, Sec. 1.

85
Supra note 81.

See Association of Small Landowners in the Phil., Inc., et al. v. Secretary of Agrarian
86

Reform, 256 Phil. 777, 799 (1989).

87
Francisco, Jr. v. Th e House of Representatives, G.R. No. 160261 , November I 0, 2003,
citing Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).

88
Garcia v. Executive Secretary, 602 Phil. 64, 77-78 (2009).
 Kida v. Senate of the Philippines, G. R. No. 19627 I, October 18, 20 I I, 659 SCRA 270,
89

326-327.

Biraogo v. The Philippine Truth Commission, G. R. No. I 92935 & G.R. No. 193036,
90

December 7, 2010, 637 SCRA 7 8, I 77.

91
Tañada v. Angara, 338 Phil. 546, 575 (I997).

92
453 Phil. 586 (2003).

93
G.R. No. 188078, 25 January 2010, 611 SCRA137.

94
G.R No. 187 167, July 16, 2011 , 655 SCRA 476.

Francisco v. House of Representatives, 460 Phil. 83 0, 882-883 (2003), citing Florentino P.

95

Feliciano, The Application of Law: Some Recurring Aspects Of The Process Of Judicial
Review And Decision Making, 37 A MJJUR 17, 24 (1 992).

96
Biraogo v. Philippine Truth Commission, G. R. No . 192935, December 7, 20 10, 637
SCRA 78, 148 ; Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council,
G.R. No. 178552, October 5, 20 10, 632 SCRA 146, 166-1 67; Senate of the Philippines v.
Ermita, 522 Phil. I, 27 (2006); Francisco v. House of Representatives, 460 Phil. 83 0, 892
(2003).

97
Consolidated Comment, OSG, rollo, (G.R. No. 2 04819), pp. 375-376.

Comment-In-Intervention, Hontiveros, et al., rollo, (G.R. No. 204934), pp. 106- 109;
98

Comment-In-Intervention, Cabral et al., rollo, (G.R. No. 204819), pp. 500-501.

99
Republic Telecommunications Holding, Inc. v. Santiago, 556 Phil. 83, 9 1-92 (2007).

Jriformation Technology Foundation of the Philipp ines v. Commission on Elections , 499

100

Phil. 281, 304-305 (2005).

Lawyers Against Monopoly And Poverty (LAMP) v. Th e Secretary of Budget and

101

Management, G. R. No. 164987, April 24, 201 2, 670 SCRA 373 , 383.

The Province Of North Cotabato v. The Government of the Republic of the Philippines,
102

589 Phil. 387, 481 (2008).

103
Id. at 483 .

104
Tañada v. Angara, 338 Phil. 546, 574 ( 1997).

105
Consolidated Comment, OSG, rollo (G. R. No. 204819), p. 381.

106
See United States v. Salerno, 481 U.S. 739 ( 1987).

107
The First Amendment of the US Constitution reads: Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people peaceably to assemble, and
to petition the government for a redress of grievances.

Romualdez v. Commission on Elections, 576 Phi l. 357 (2008); Romualdez v. Hon.

108

Sandiganbayan, 479 Phil. 265 (2004 ); Estrada v. Sandiganbayan, 421 Phi I. 290 (200 I).

109
Resolution, Romualdez v. Commission on Elect ions, 594 Phil. 305, 3 16 (2008).
110
Constitution, Article VIII , Section 1.

111
Consolidated Comment, OSG, rollo (G. R. No. 2048 19), pp. 375-376.

112
Consolidated Comment, OSG, rollo (G. R. No. 2048 19), p. 384.

113
Anak Mindanao Party-list Group v. Th e Executive Secretary, 558 Phil. 338, 350 (2007).

Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 633 (2000), citing Baker v. Carr,
114

369 U.S. 186 ( 1962).

Dissenting Opinion, J. Carpio; Romualdez v. Commission on Elections, 576 Phil. 357, 406
115

(2008).

Social Justice Society (SJS) v. Dangerous Drugs Board and Philippine Drug Enforcement
116

Agency, 591 Phil. 393, 404 (2008); Tatad v. Secretary of the Department of Energy, 346 Phil.
321 (1997); De Guia v. COMELEC, G .R . No. 104 71 2, May 6, I 992, 208 SCRA 420, 422.

117
503 Phil. 42, 53 (2005).

118
84 Phil. 368, 373 (1949).

119
464 Phil. 375, 385 (2004).

120
Consolidated Comment, OSG, rollo (G.R. No. 204819), pp. 388-389.

The Province Of North Cotabato v. The Government of the Republic of the Philippines,
121

supra note 102; Ortega v. Quezon City Government, 506 Phil. 373, 380 (2005); and
Gonzales v. Comelec, 137 Phil. 471 (1969).

Section 26. (I) Every bill passed by the Congress shall embrace only one subject which
122

shall be expressed in the title thereof.

Petition, Task Force for the Family and life Visayas, Inc. v. Ochoa, rollo (G.R. No. 204957),
123

pp. 6-10; Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 9-10.

124
Joint Memorandum, Lagman, rollo, (G.R. No. 204819) pp. 212-214.

125
Consolidated Comment, OSG, rollo (G.R. No. 204819, pp.389-393.

126
ALFI Memorandum, rollo (G. .R. N o. 204934), p. 1396.

127
ALFI Memorandum, rollo (G. .R. No. 204934), p. 1396.

128
ALFI Memorandum, rollo (G. .R. No. 204934), p. 1396.

129
Cruz, Philippine Political Law, 2002 Edition, pp. 15 7-1 58; citing 82 CJS 365.

130
Petition, lmbong v. Ochoa, rol/o (G. R. No. 2048 19), pp. 8-10; Petition, Alliance for the
Family Foundation, Inc. (ALFI) v. Ochoa, rollo (G.R. No. 204934), pp. 15-25; Petition, Serve
Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G.R. No. 204988), pp. 13-1 5; Petition,
Olaguer v. Ona, ro/lo (G. R. No. 205043), pp. 10-11 ; Petition, Philippine Alliance of
XSeminarians (PAX) v. Ochoa, ro/lo (G.R. No . 2051 38), pp. 8-36; Petition, Echavez v.
Ochoa, rollo (G.R. No. 2 05478), pp. 10-13; Petition, Millennium Saint Foundation, Inc. v.
Office of the President, rollo (G. R. No. 206355), pp. 11-15; Petition, Juat v. Ochoa, rollo
(G.R. No. 207111 ), pp. 17-18; Petition, Buhay Partylist (BU HAY) v. Ochoa, rollo (G. R. No.
2048 19), pp. 1255 -1256.
131
Petition, Alliance for the Family Foundation, inc. (ALFI) v. Ochoa, rollo (G. R. No. 204934),
pp. 15-25; Petition, Serve Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G.R. No. 204988),
pp. 13-1 5; Petition, Olaguer v. Ona, rollo (G.R. No. 205043), pp. 10-11; Petition, Philippine
Alliance of XSeminarians (PAX) v. Ochoa, rollo (G.R. No. 205138), pp. 8-36; Petition,
Echavez v. Ochoa, rollo (G. R. No . 205478), pp. 10-13; Petition, Millennium Saint
Foundation, Inc. v. Office of the President, rollo (G.R. No. 206355), pp. 11-1 5; Petition, Juat
v. Ochoa, rollo (G.R. No. 207111), pp. 17-18; Petition, Buhay Partylist (BUHAY) v. Ochoa,
rollo (G.R. No. 204819), pp. 1255-1256.

132
Petition, Pro-Life Philippines Foundation, inc. v. Ochoa, rollo (G.R. No. 205720), pp. 14-30.

Memorandum, Alcantara, rollo (G.R. No. 204819), p. 2133; Reply, Olaguer v. Ona, rollo
133

(G.R. No. 205043), pp. 339-340.

134
Consolidated Comment, OSG, rollo, (G.R. No. 204819), pp. 393-396; Comment-In-
Intervention, Lagman, rollo, (G.R. No. 204819), pp. 230-233; Comment-In-Intervention,
C4RH, rollo (G.R. No. 2048 19), pp. 1091-11 92; Hontiveros, rollo (G.R. No. 204934), pp.
111-1 16; Memorandum, Cayetano,, rollo (G.R. No. 204819), pp. 3038-3041.

135
Consolidated Comment, OSG, rollo, (G.R. No. 204819), pp. 396-410.

136
Comment-In-Intervention, Lagman, rollo, (G.R. No. 204819), pp. 225-342.

137
Article 3, Universal Declaration of Human Rights.

138
See Republic Act No. 4729, dated June 18, 1966.

139
See http://www.pop.org/content/coerci ve-population-ploys- in-philippines- 1428 , last
visited October 17, 2013.

<http://www.senate.gov.ph/publications/PB%202009-03%20-
140

%20Promoting%20Reproductive%20 Health.pdt>, last visited October 17, 2013.

141
<http://www.pop.org/content/ coercive-population-p loys-in-ph ii ippines-1428>

During the deliberation, it was agreed that the individual members of the Court ca n express
their own views on this matter.

142
Petition, Alliance/or the Family Foundation, Inc. (AL FI) v. Ochoa, rollo (G.R. No. 204934),
pp . 15-25; Petition, Serve Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G.R. No. 2
04988), pp. 13- 15; Petition, Olaguer v. Ona, rollo (G.R. No. 205043), pp. 10-11 ; Petition,
Philippine Alliance of XSeminarians (PAX) v. Ochoa, rollo (G.R. No. 205 138), pp. 8-36 ;
Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 10-13 ; Petition, Millennium Saint
Foundation, Inc. v. Office of the President, rollo (G.R. No. 206355), pp. 11-15; Petition, Juat
v. Ochoa, rollo (G.R. No. 207 111), pp. 17-18; Petition, Buhay Party/isl (BUHAY) v. Ochoa,
rollo (G.R. No. 2048 19), pp. 1255-1256.

143
Comment-ln-lntervention, Lag man, rollo, (G. R. No. 204819), pp. 225-342.

144
G.R. No. 202242, July 17, 201 2, 676 SCRA 579.

145
Webster's Third International Dictionary, 1993 Edition, p. 469.

146
Black's Law Dictionary, Fifth Edition, p. 262.

147
G.R. No. 182836, October 13, 2009, 618 Phil. 634 (2009).
 Gonzales v. Carhart (Nos. 05-380 and 05-1382), No. 05- 380, 413 F. 3d 791 ; 05- 1382,
148

435 F. 3d 1163,

149
http: //www.law.comell.edu/supct/html/05-380.ZO.html, last visited February 15, 2014.

150
Record of the Constitutional Commission, Volume 4, September 16, 1986, p. 668.

151
Record of the Constitutional Commission, Volume 4, September 12, 1986, p. 596.

152
Record of the Constitutional Commission, Volume 4, September 12, 1986, p. 669.

153
Record of the Constitutional Commission, Volume 4, September 19, 1986, p. 800.

154
Record of the Constitutional Commission, Volume 4, September 17, 1986, p. 711 .

155
Record of the Constitutional Commission, Volume 4, September 17, 1986, p. 711.

156
Record of the Constitutional Commission, Volume 4 , September 17, 1986, p. 745 .

157
TSN, July 9, 2013 , pp. 23-24.

158
Id.

159
4th Edition, p. 375

160
Id, p. 609

Sumpaico, Gutierrez, Luna, Pareja, Ramos and Baja-Panlilio, 2"d Edition, (2002), pp. 76-
161

77.

162
Moore, Persaud, Torchia, The Developing Human: Clinically Oriented Embryo logy,
International Edition, 9th Edition (2013), pp. 1-5, 13.

O'Rahilly, Ronan and Muller, Fabiola, Huma n Embryo logy & Teratology. 2nd edition. New
163

York: Wiley-Liss, 1996, pp. 8, 29, cited at: http://www.princeton.edu/-

prolife/articles/embryoguotes2.html, last visited February 15, 2014.

From https://www.philippinemedicalassociation .org/downloads/circular-forms/ Position-

164

Paper-on-the-Republic-Health-Bill-%28Responsible-Parenthood-Bill%29.pdf. last visited

March 26, 2014.

165
Comment-In-Intervention, Lagman, rol/o, (G.R. No. 204819), pp. 225-342.

166
Id.

167
Id.

See <http://americanpregnancy.org/duringpregnancy/ fetaldevelopment I .htm>, last visited

168

April 7, 2014.

Joint Memorandum of the House of Representatives and Respondent- Intervenor Rep.

169

Edee I C. Lagman), Section 40, Rollo, G.R. No. 2048 19, p. 2343.

170
Concurring Opinion (Justice Carpio), p. 3.

171
See TSN, July 9, 2013, p. 100.
172
Separate Opinion (Justice Del Castillo), pp. 17-19; Separate Opinion (Justice Brion), p. 25.

173
Section 3.01 For purposes ofthese Rules, the terms shall be defin ed as fo llows:

a) Abortifacient refers to any drug or device that primarily induces abortion or the
destruction of a fetus inside the mother's womb or the prevention of the fertil ized
ovum to reach and be implanted in the mother's womb upon determination of the
Food and Drug Admini stration (F DA) .

xxxx

j) Contraceptive refers to any safe, legal, effective and scientifically proven modern
fam ily planning method, device, or health product, whether natural or artificial, that
prevents pregnancy but does not primarily destroy a fertilized ovum or prevent a
fertilized ovum from being implanted in the mother's womb in doses of its approved
indication as determined by the Food and Drug Administration (FDA) .

174
Separate Opinion (Justice Del Castillo), pp. 17-19; Separate Opinion (Justice Brion), p. 25
.

175
Separate Opinion (Justice Del Castillo), p. 19 .

176
Petition, Alliance for the Family Foundation, Inc. (A LFI} v. Ochoa, rollo (G. R. No.
204934), pp. 26-28; Petition, Serve l ife Cagayan De Oro City, Inc. v. Ochoa, rolfo, (G. R. No
. 204988), pp. 15-16; Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 13- 14;
Petition, Pro-life Philippines Foundation, Inc. v. Ochoa, rolfo (G.R. No. 205 720), pp. 30-35.

Memorandum, Alliance for the Family Foundation, rollo, (G.R. No . 204934), pp. 1419-
177

1445.

Section 4. Definition of Terms. - For the purpose of this Act, the following terms shall be
178

defined as follows:

xxxx

(p) Reproductive Health (RH) refers to the state of complete physical, mental and
social well-being and not merely the absence of disease or infirmity, in all matters
relating to the reproductive system and to its functions and processes. This implies
that people are able to have a responsible, safe, consensual and satisfying sex life,
that they have the capability to reproduce and the freedom to decide if, when , and
how often to do so. This further implies that women and men attain equal
relationships in matters related to sexual relations and reproduction.

Section 4. Definition of Terms . - For the purpose of this Act, the following terms shall be
179

defined as follows:

xxxx

(w) Sexual health refers to a state of physical, mental and social well-being in relation
to sexuality. It requires a positive and respectful approach to sexuality and sexual
relationships, as well as the possibility of having pleasurable and safe sexual
experiences, free from coercion, discrimination and violence.

Me morandum, Alcantara, rollo, (G.R. No. 204934)p. 2136; Memorandum , PAX, rollo
180

(G.R. No. 205 138), pp. 2154-2155.

181
Consolidated Comment, OSG, rollo (G.R. No. 204819), pp. 415-416.
 Gamboa v. Finance Secretary, G.R. No. 176579, June 28, 2011 , 6 52 SCRA 690, 738-
182

739.

183
335 Phil. 82 ( 1997).

Memorandum , Alliance for the Family Foundation, In c. (ALFI) v. Ochoa, rol/o (G.R. No.
184

204934), p. 1408.

185
Id.

186
Memorandum, Lagman, rollo (G.R. No. 204819), pp. 2359-2361.

187
Separate Opinion (Justice Leonardo-De Castro) p. 54.

Petition, Philippine Alliance of XSeminarians (PAX) v. Ochoa, rollo (G. R. No. 205138), pp.
188

40-41.

Petition, Task Force/or the Family and Life Visayas, Inc. v. Ochoa, rollo (G.R. No.
189

204957), pp. 26-27; Petition, Philippine Alliance of XSem inarians (PAX) v. Ochoa, rollo
(G.R. No. 205138), pp. 39-44; Petition, Tatadv. Office of the President, rollo (G.R. No.
205491), pp. 8-9; Petition, Pro-Life Philippines Foundation, Inc. v. Ochoa, rollo (G.R. No.
205720), pp . 59-67; Petition, Millennium Saint Foundation, Inc. v. Office of the President,
rollo (G.R. No. 2063 55), pp. 25-26.

190
Joint Memorandum, lmbong/Luat, rollo (G.R. No. 204819), p. 2615.

191
Joint Memorandum, Imbong/Luat, rollo (G.R. No. 204819), pp . 2616-2621.

192
Petition, Echavez v. Ochoa, rollo (GR. No. 205478), pp. 6-7.

193
Petition, Couples for Christ Foundation, Inc. v. Ochoa, rollo (G.R. No. 207172), pp. 20-23.

194
Petition, Coup les for Christ Foundation, Inc. v. Ochoa, rollo (G.R. No. 207 I 72), pp. 20-23.

Petition, Alliance for the Family Foundation, Inc. (A LFI) v. Ochoa, rollo (G.R. No. 204934),
195

pp. 35-37.; Petition, Millennium Saint Foundation, In c. v. Office of the President, rollo (G.R.
No. 206355), pp. 17- 18.

Memorandum, Cayetano, rollo (G.R. No. 204819), p. 3050; Comment-in-Lntervention,

196

Cabral, rollo (G.R. No. 2 04819), p. 5 11.

197
Memorandum, OSG, rollo (G. R. No. 204819), p. 2677.

198
Memorandum, Cayetano, rollo (G.R. No. 2048 19), p. 3050.

199
Joint Memorandum Lagman, rol!o (G.R. No. 2048 19), p. 2361.

Memorandum . C4RH, rollo (G.R. No. 204819), p. 2189; Memorandum, Cayetano, rollo
200

(G.R. No. 204819), p. 3050-305 1.

201
Memorandum, Cayetano, rollo (G.R. No. 204 819), p. 3050 .

202
Memorandum, OSG, rollo (G.R. No. 204819), p. 2677.

203
Memorandum, OSG, rollo (G.R. No. 204819), p . 2679.

204
Memorandum, OSG, rollo (G.R. No. 204819), p. 2679.
 Cruz, Philippine Political Law, 2000 ed ., p. 179, citing Justice Laurel in Engel v. Vitale,
205

370 US 421.

206
Gorospe, Constitutional Law, Vol. I, p. I 007

207
Bernas, The 1987 Constitution, 2009 Ed. , p. 330

208
Gorospe, Constitutional Law, Vol. I, p. I 066

209
59 SC RA 54 (1974).

210
Escritor v. Estrada, A.M. No. P-02-1651 , June 22, 2006, 525 Phil. 110, 140- 141 (2006).

211
106 Phil. 2 (1959).

212
Gerona v. Secretary of Education, 106 Phil. 2, 9- 10 ( 1959).

213
Ebralinag v. Division Superintendent of Schools, 219 SCRA 25 6 ( 1993 ), March 1, 1993.

214
525 Phil. 110 (2006).

215
Id. at 137.

216
Id. at 148.

217
Id . at 149.

218
Id. at 175.

219
Id. at 168- 169.

220
Estrada v. Escritor, 455 Phil. 4 11 , 560 (2003).

221
Cruz, Constitutional Law, 2000 edition, pp. 178-1 79.

222
Bernas, The 1987 Constitution, 2009 Ed. , p. 330.

223
Separate Opinion, Cruz, Ebralinag v. Division Superintendent of Schools, 219 SCRA 25 6
( 1993 ), March 1, 1993.

224
Estrada v. Escritor, supra note 220, at 537.

225
20 130 CSIH 36.

http://www. skepticink.com/tippling/201 3/05/0 5/conscientious-objection-to-abortion -

226

cathoIic-midwives-win-appeal/; last visited February 22, 2014

http://ukhumanrightsblog.com/20 13/05/03/conscientious-objection-to-abortion-catholic-
227

midwives-win-appeal; last visited February 22 , 2014

228
453 Phil. 440 (2003).

Fernando on the Philippine Constitution, 1974 ed. , p. 565; See Dissenting Opinion
229

Makasiar, Garcia v. The Faculty Admission Committee G. R. No. L-40779, November 28,
1975.
230
TSN , August 13, 201 3, pp. 52-54.

231
TSN, August27, 201 3, pp. 71-72

232
Islamic Da'wah Council of the Philippines v. Office of the Executive Secretary of the Office
of the President of the Philippines, supra note 228 at 450.

http://fatherbemasblogs. blogspot.com/2011 _02_0 !_archive.html ; last vi sited February

233

15, 2014.

234
Estrada v. Escritor, supra note 210.

235
TSN , Aug ust 27 , 201 3, p. 130.

236
http ://www. lifenews.com/2011 /09/01 /philippines-sees-matemal-mortalitv-decline-
without-abortion; last visited March 9, 2014 [Researchers from the Institute for Health Metrics
and Evaluation of the University of Washington in Seattle examined maternal mortality rates
in 181 countries and found the rate (the number of women's deaths per 100,000) dropped by
81 percent in the Philippines between .1980 and 2008. The decrease comes as the largely
Catholic nation has resister efforts to legalize abortions, even though the United Nations and
pro-abortion groups claim women will supposedly die in illegal abortions and increase the
maternal mortality rate if abortion is prohibited.

The 2010 study, published in Lancet, shows the Philippines outpaced first-world
nations like Germany, Russia and Israel - where abortions are legal - in cutting
maternal mortality rates.

Meanwhile, the National Statistical Coordination Board in the Philippines, according

to Spero Forum, has shown the same results. From 1990-2010, the daily maternal
mortality rate dropped 21 percent, its figures indicated. The World Health
Organization also found that the Filipino maternal mortality rate dropped 48 percent
from 1990 to 2008.

237
TSN, July 23, 2013 , p. 23.

Memorandum, Alliance for the Family Foundation, Inc. {ALFI) v. Ochoa, rollo (G.R. No.
238

204934), p. 1407.

SEC. 15. Certificate of Compliance. - No marriage license shall be issued by the Local
239

Civil Registrar unless the applicants present a Certificate of Compliance issued for free by
the local Family Planning Office certifying that they had duly received adequate instructions
and information on responsible parenthood, family planning, breastfeeding and infant
nutrition.

240
Petition, Couples for Christ Foundation, In c. v. Ochoa, rollo (G.R. No. 207 172), p. 29.

241
80 CONST. Art XV, §2 .

242
Separate Opinion (Justice Leonardo-De Castro), p. 42-43.

243
130 Phil. 415 (1968).

244
Id . at 436.

245
81 Griswold v. Connecticut,3 81U.S. 479, June7, 1965.

246
Id.
247
Section 12, Article II , 1987 Constitution.

248
Bernas, The 1987 Constitution, 2009 Ed., p . 85.

249
(ii) Parental consent or that of the person exercising parental authority in the case of
abused minors, where the parent or the person exercising parental authority is the
respondent, accused or convicted perpetrator as certified by the proper prosecutorial office
of the court. In the case of minors, the written consent of parents or legal guardian or, in their
absence, persons exercising parental authority or next-of-kin shall be required only in
elective surgical procedures and in no case shall consent be required in emergency or
serious cases as defined in Republic Act No. 8344.

250
Petition, Echavez v. Ochoa, rollo (G.R. No. 205478), pp. 15- 16.

Memorandum, Alliance for the Family Foundation, Inc. (ALFI) v. Ochoa, rollo (G. R. No.
251

204934), pp. 1453- 1496.

252
Records, 1986 Constitutional Convention, Volume IV, pp. 401-402 .

253
Article II , Section 13, 1987 Constitution.

Petition, Task Force for the Family and life Visayas, Inc. v. Ochoa, rollo (G. R. No.
254

204957), pp. 24-25.

Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No.

255

178552, October 5, 2010; People v. Nazario, No. L-44 143, August 3 1, 1988, 165 SCRA
186, 195.

Philippine International Trading Corporation v. COA, G.R. No. 1835 17, June 22, 2010,
256

621 SC RA 461, 469.

257
Webster's Third New International Dictionary, 1993 Edition, p. 1145 .

258
Webster's Third New International Dictionary, 1993 Edition, p. 1252.

SEC. 3. Guiding Principles for Implementation. - Th is Act declares the following as guiding
259

principles:

xxxx

(d) The provision of ethical and medically safe, legal, accessible, affordable, non-
abortifacient, effective and quality reproductive health care services and supplies is
essential in the promotion of people's right to health, especially those of women, the
poor, and the marginalized, and shall be incorporated as a component of basic
health care;

(e) The State shall promote and provide information and access, without bias, to all
methods of family planning, including effective natural and modem methods which
have been proven medically safe, legal, non-abortifacient, and effective in
accordance with scientific and evidence-based medical research standards such as
those registered and approved by the FDA for the poor and marginalized as
identified through the NHTS-PR and other government measures of identifying
marginalization: Provided, That the State shall also provide fun ding support to
promote modern natural methods of family planning, especially the Billings Ovulation
Method, consistent with the needs of acceptors and the irreligious convictions;

(f) The State shall promote programs that: (I) enable individuals and couples to have
the number of children they desire with due consideration to the health, particularly of
 women, and the resources available and affordable to them and in accordance with
existing laws, public morals and their religious convictions: Provided, That no one
shall be deprived, for economic reasons, of the rights to have children; (2) achieve
equitable allocation and utilization of resources; (3) ensure effective partnership
among national government, local government units (LGUs) and the private sector in
the design, implementation, coordination, integration, monitoring and evaluation of
people-centered programs to enhance the quality of life and environmental
protection; (4) conduct studies to analyze demographic trends including demographic
dividends from sound population policies towards sustainable human development in
keeping with the principles of gender equality, protection of mothers and children,
born and unborn and the promotion and protection of women's reproductive rights
and health ; and (5) conduct scientific studies to determine the safety and efficacy of
alternative medicines and methods for reproductive health care development;

xxxx

(g) The provision of reproductive health care, information and supplies giving priority
to poor beneficiaries as identified through the NHTS-PR and other government
measures of identifying marginalization must be the primary responsibility of the
national government consistent with its obligation to respect, protect and promote the
right to health and the right to life;

xxxx

(i) Active participation by nongovernment organizations (NGOs), women's and

people's organizations, civil society, faith-based organizations, the religious sector
and communities is crucial to ensure that reproductive health and population and
development policies, plans, and programs will address the priority needs of women,
the poor, and the marginalized;

xxxx

(l) There shall be no demographic or population targets and the mitigation, promotion
and/or stabilization of the population growth rate is incidental to the advancement of
reproductive health ;

xxxx

(n) The resources of the country must be made to serve the entire population, espec
ially the poor, and allocations thereof must be adequate and effective: Provided, That
the life of the unborn is protected;

(o) Development is a multi-faceted process that calls for the harmonization and
integration of policies, plans, programs and projects that seek to uplift the quality of
life of the people, more particularly the poor, the needy and the marginalized;

SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be
260

defined as follows:

xxxx

(r) Reproductive health care program refers to the systematic and integrated
provision of reproductive health care to all citizens prioritizing women, the poor,
marginalized and those invulnerable or crisis situations.

xxxx
 (aa) Sustainable human development refers to bringing people, particularly the poor
and vulnerable, to the center of development process, the central purpose of which is
the creation of an enabling environment in which all can enjoy long, healthy and
productive lives, done in the manner that promotes their rights and protects the life
opportunities of future generation s and the natural ecosystem on which all life
depends.

261
Biraogo v. Th e Philippine Truth Commission, supra note 90.

Petition, Serve Life Cagayan De Oro City, Inc. v. Ochoa, rollo, (G. R. No. 204988), pp. 16-
262

48; Petition, Echavez v. Ochoa, rollo (G. R. No. 205478), pp. 7-9.

263
Except the practice of law which is under the supervision of the Supreme Court.

264
United States v. Jesus, 3 1 Phil. 218, 230 (1915).

265
Petition , Echavez v. Ochoa, rollo (G. R. N o. 205478), p. 8.

With reference to Section 2 , 3(E), 4(L), 9 and I 9(C) of the RH La w; Petition, ALFI, rollo
266

(G.R. No. 204934), pp. 28-33; Petition, Philippine Alliance of XSeminarians (PAX) v. Ochoa,
rollo (G.R. No. 205138), pp. 37-38.

267
358 Phil. 410 (1998) .

Pimentel, Jr. v. Executive Secretary, G.R. No. 195770, July 17, 201 2, 676 SCRA 551,
268

559.

269
Id . at 559-560.

270
Id. at 561.

271
See Section 6, R.A. No. 10354.

272
See Section 5, R.A . No. 10354.

273
See Section 16, R.A . No. 1354.

Kida v. Senate of the Philippines, G.R. No. 196271, October 18, 2011, 659 SCRA 270,
274

306.

275
Id. at 305.

276
Petition, Pro-life Philippines Foundation, Inc. v. Ochoa, rollo (GR. N o. 205 720), pp. 14-30.

277
Gettel , Political Science, Revised Edition, p. 180.

278
454 Phil. 504 (2003).

Separate Opinion, Chief Justice Reynato S. Puno, Republic v. Sandiganbayan, 454 Phi l.
279

504 (2003).

280
https://www.cia.gov/ library/ publications/the-world-factbook/rankorder/2127rank.html ; last
visited March 21, 2014

St. Josephs College v. St. Josephs College Workers' Association (Samahan), 489 Phil.
281

559, 572-573 (2005) ; and Cebu Institute of Technology v. Opie, G.R. No. L-58870, 18
December 1987, 156 SCRA 629.
 Republic of the Philippines
SUPREME COURT
Baguio City

EN BANC

G.R. No. 180771 April 21, 2015

RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPE TAÑON STRAIT, e.g.,

TOOTHED WHALES, DOLPHINS, PORPOISES, AND OTHER CETACEAN SPECIES, Joined in
and Represented herein by Human Beings Gloria Estenzo Ramos and Rose-Liza Eisma-
Osorio, In Their Capacity as Legal Guardians of the Lesser Life-Forms and as Responsible
Stewards of God's Creations, Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy
(DOE), SECRETARY JOSE L. ATIENZA, in his capacity as Secretary of the Department of
Environment and Natural Resources (DENR), LEONARDO R. SIBBALUCA, DENR Regional
Director-Region VII and in his capacity as Chairperson of the Tañon Strait Protected
Seascape Management Board, Bureau of Fisheries and Aquatic Resources (BFAR),
DIRECTOR MALCOLM J. SARMIENTO, JR., BFAR Regional Director for Region VII ANDRES
M. BOJOS, JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), as represented by its
Philippine Agent, SUPPLY OILFIELD SERVICES, INC. Respondents.

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

G.R. No. 181527

CENTRAL VISAYAS FISHERFOLK DEVELOPMENT CENTER (FIDEC), CERILO D. ENGARCIAL,

RAMON YANONG, FRANCISCO LABID, in their personal capacity and as representatives of
the SUBSISTENCE FISHERFOLKS OF THE MUNICIPALITIES OF ALOGUINSAN AND
PINAMUNGAJAN, CEBU, AND THEIR FAMILIES, AND THE PRESENT AND FUTURE
GENERATIONS OF FILIPINOS WHOSE RIGHTS ARE SIMILARLY AFFECTED, Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy
(DOE), JOSE L. ATIENZA, in his capacity as Secretary of the Department of Environment and
Natural Resources (DENR), LEONARDO R. SIBBALUCA, in his capacity as DENR Regional
Director-Region VII and as Chairperson of the Tañon Strait Protected Seascape Management
Board, ALAN ARRANGUEZ, in his capacity as Director - Environmental Management Bureau-
Region VII, DOE Regional Director for Region VIII1 ANTONIO LABIOS, JAPAN PETROLEUM
EXPLORATION CO., LTD. (JAPEX), as represented by its Philippine Agent, SUPPLY OILFIELD
SERVICES, INC., Respondents.

CONCURRING OPINION

"Until one has loved an animal,

a part of one 's soul remains unawakened."

Anatole France

LEONEN, J.:

I concur in the result, with the following additional reasons.

In G.R. No. 180771, petitioners Resident Marine Mammals allegedly bring their case in their
personal capacity, alleging that they stand to benefit or be injured from the judgment on the issues.
The human petitioners implead themselves in a representative capacity "as legal guardians of the
lesser life-forms and as responsible stewards of God's Creations."1 They use Oposa v. Factoran,
Jr.2 as basis for their claim, asserting their right to enforce international and domestic environmental
laws enacted for their benefit under the concept of stipulation pour autrui.3As the representatives of
Resident Marine Mammals, the human petitioners assert that they have the obligation to build
awareness among the affected residents of Tañon Strait as well as to protect the environment,
especially in light of the government's failure, as primary steward, to do its duty under the doctrine of
public trust.4

Resident Marine Mammals and the human petitioners also assert that through this case, this court
will have the opportunity to lower the threshold for locus standi as an exercise of "epistolary
jurisdiction."5

The zeal of the human petitioners to pursue their desire to protect the environment and to continue
to define environmental rights in the context of actual cases is commendable. However, the space
for legal creativity usually required for advocacy of issues of the public interest is not so unlimited
that it should be allowed to undermine the other values protected by current substantive and
procedural laws. Even rules of procedure as currently formulated set the balance between
competing interests. We cannot abandon these rules when the necessity is not clearly and
convincingly presented.

The human petitioners, in G.R. No. 180771, want us to create substantive and procedural rights for
animals through their allegation that they can speak for them. Obviously, we are asked to accept the
premises that (a) they were chosen by the Resident Marine Mammals of Tañon Strait; (b) they were
chosen by a representative group of all the species of the Resident Marine Mammals; (c) they were
able to communicate with them; and (d) they received clear consent from their animal principals that
they would wish to use human legal institutions to pursue their interests. Alternatively, they ask us to
acknowledge through judicial notice that the interests that they, the human petitioners, assert are
identical to what the Resident Marine Mammals would assert had they been humans and the legal
strategies that they invoked are the strategies that they agree with.

In the alternative, they want us to accept through judicial notice that there is a relationship of
guardianship between them and all the resident mammals in the affected ecology.

Fundamental judicial doctrines that may significantly change substantive and procedural law cannot
be founded on feigned representation.

Instead, I agree that the human petitioners should only speak for themselves and already have legal
standing to sue with respect to the issue raised in their pleading. The rules on standing have already
been liberalized to take into consideration the difficulties in the assertion of environmental rights.
When standing becomes too liberal, this can be the occasion for abuse.

II

Rule 3, Section 1 of the 1997 Rules of Civil Procedure, in part, provides:

SECTION 1. Who may be parties; plaintiff and defendant. - Only natural or juridical persons, or
entities authorized by law may be parties in a civil action.

The Rules provide that parties may only be natural or juridical persons or entities that may be
authorized by statute to be parties in a civil action.

Basic is the concept of natural and juridical persons in our Civil Code:

ARTICLE 37. Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in
every natural person and is lost only through death. Capacity to act, which is the power to do acts
with legal effect, is acquired and may be lost.

Article 40 further defines natural persons in the following manner:

ARTICLE 40. Birth determines personality; but the conceived child shall be considered born for all
purposes that are favorable to it, provided it be born later with the conditions specified 'in the
following article.

Article 44, on the other hand, enumerates the concept of a juridical person:

ARTICLE 44. The following are juridical persons:

(1) The State and its political subdivisions;

(2) Other corporations, institutions and entities for public interest or purpose, created by law;
their personality begins as soon as they have been constituted according to law;

(3) Corporations, partnerships and associations for private interest or purpose to which the
law grants a juridical personality, separate and distinct from that of each shareholder, partner
or member.

Petitioners in G.R. No. 180771 implicitly suggest that we amend, rather than simply construe, the
provisions of the Rules of Court as well as substantive law to accommodate Resident Marine
Mammals or animals. This we cannot do.

Rule 3, Section 2 of the 1997 Rules of Civil Procedure further defines real party in interest:

SEC. 2. Parties in interest.-A real party in interest is the party who stands to be benefited or injured
by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized
by law or these Rules, every action must be prosecuted or defended in the name of the real party in
interest. (2a)6

A litigant who stands to benefit or sustain an injury from the judgment of a case is a real party in
interest.7 When a case is brought to the courts, the real party in interest must show that another
party's act or omission has caused a direct injury, making his or her interest both material and based
on an enforceable legal right.8

Representatives as parties, on the other hand, are parties acting in representation of the real party in
interest, as defined in Rule 3, Section 3 of the 1997 Rules of Civil Procedure:

SEC. 3. Representatives as parties. - Where the action is allowed to be prosecuted or defended by a

representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title
of the case and shall be deemed to be the real party in interest. A representative may be a trustee of
an express rust, a guardian, an executor or administrator, or a party authorized by law or these
Rules. An agent acting in his own name and for the benefit of an undisclosed principal may sue or
be sued without joining the principal except when the contract involves things belonging to the
principal.(3a)9

The rule is two-pronged. First, it defines .a representative as a party who is not bound to directly or
actually benefit or suffer from the judgment, but instead brings a case in favor of an identified real
party in interest.10 The representative is an outsider to the cause of action. Second, the rule provides
a list of who may be considered as "representatives." It is not an exhaustive list, but the rule limits
the coverage only to those authorized by law or the Rules of Court.11

These requirements should apply even in cases involving the environment, which means that for the
Petition of the human petitioners to prosper, they must show that (a) the Resident Marine Mammals
are real parties in interest; and (b) that the human petitioners are authorized by law or the Rules to
act in a representative capacity.

The Resident Marine Mammals are comprised of "toothed whales, dolphins, porpoises, and other
cetacean species inhabiting Tañon Strait."12 While relatively new in Philippine jurisdiction, the issue
of whether animals have legal standing before courts has been the subject of academic discourse in
light of the emergence of animal and environmental rights.

In the United States, anim4l rights advocates have managed to establish a system which Hogan
explains as the "guardianship model for nonhuman animals":13

Despite Animal Lovers, there exists a well-established system by which nonhuman animals may
obtain judicial review to enforce their statutory rights and protections: guardianships. With court
approval, animal advocacy organizations may bring suit on behalf of nonhuman animals in the same
way court-appointed guardians bring suit on behalf of mentally-challenged humans who possess an
enforceable right but lack the ability to enforce it themselves.

In the controversial but pivotal Should Trees Have Standing?-Toward Legal Rights for Natural
Objects, Christopher D. Stone asserts that the environment should possess the right to seek judicial
redress even though it is incapable of representing itself. While asserting the rights of

speechless entities such as the environment or nonhuman animals certainly poses legitimate
challenges - such as identifying the proper spokesman -the American legal system is already well-
equipped with a reliable mechanism by which nonhumans may obtain standing via a judicially
established guardianship. Stone notes that other speechless - and nonhuman - entities such as
corporations, states, estates, and municipalities have standing to bring suit on their own behalf.
There is little reason to fear abuses under this regime as procedures for removal and substitution,
avoiding conflicts of interest, and termination of a guardianship are well established.

In fact, the opinion in Animal Lovers suggests that such an arrangement is indeed possible. The
court indicated that AL VA might have obtained standing in its own right if it had an established
history of dedication to the cause of the humane treatment of animals. It noted that the Fund for
Animals had standing and indicated that another more well-known advocacy organization might
have had standing as well. The court further concluded that an organization's standing is more than
a derivative of its history, but history is a relevant consideration where organizations are not well-
established prior to commencing legal action. ALVA was not the proper plaintiff because it could not
identify previous activities demonstrating its recognized activism for and commitment to the dispute
independent of its desire to pursue legal action. The court's analysis suggests that a qualified
organization with a demonstrated commitment to a cause could indeed bring suit on behalf of the
speechless in the form of a court-sanctioned guardianship.

This Comment advocates a shift in contemporary standing doctrine to empower non-profit

organizations with an established history of dedication to the cause and relevant expertise to serve
as official guardians ad !item on behalf of nonhuman animals interests. The American legal system
has numerous mechanisms for representing the rights and interests of nonhumans; any challenges
inherent in extending these pre-existing mechanisms to nonhuman animals are minimal compared to
an interest in the proper administration of justice. To adequately protect the statutory rights of
nonhuman animals, the legal system must recognize those statutory rights independent of humans
and provide a viable means of enforcement. Moreover, the idea of a guardianship for speechless
plaintiffs is not new and has been urged on behalf of the natural environment. 'Such a model is even
more compelling as applied to nonhuman animals, because they are sentient beings with the ability
to feel pain and exercise rational thought. Thus, animals are qualitatively different from other legally
protected nonhumans and therefore have interests deserving direct legal protection.

Furthermore, the difficulty of enforcing the statutory rights of nonhuman animals threatens the
integrity of the federal statutes designed to protect them, essentially rendering them meaningless.
Sensing that laws protecting nonhuman animals would be difficult to enforce, Congress provided for
citizen suit provisions: the most well-known example is found in the Endangered Species Act (ESA).
Such provisions are evidence of legislative intent to encourage civic participation on behalf of
nonhuman animals. Our law of standing should reflect this intent and its implication that humans are
suitable representatives of the natural environment, which includes nonhuman animals.14 (Emphasis
supplied, citation omitted)
When a court allows guardianship as a basis of representation, animals are considered as similarly
situated as individuals who have enforceable rights but, for a legitimate reason (e.g., cognitive
disability), are unable to bring suit for themselves. They are also similar to entities that by their very
nature are incapable of speaking for themselves (e.g., corporations, states, and others).

In our jurisdiction, persons and entities are recognized both in law and the Rules of Court as having
standing to sue and, therefore, may be properly represented as real parties in interest. The same
cannot be said about animals.

Animals play an important role in households, communities, and the environment. While we, as
humans, may feel the need to nurture and protect them, we cannot go as far as saying we represent
their best interests and can, therefore, speak for them before the courts. As humans, we cannot be
so arrogant as to argue that we know the suffering of animals and that we know what remedy they
need in the face of an injury.

Even in Hogan's discussion, she points out that in a case before the United States District Court for
the Central District of California, Animal Lovers Volunteer Ass'n v. Weinberger,15 the court held that
an emotional response to what humans perceive to be an injury inflicted on an animal is not within
the "zone-of-interest" protected by law.16Such sympathy cannot stand independent of or as a
substitute for an actual injury suffered by the claimant.17 The ability to represent animals was further
limited in that case by the need to prove "genuine dedication" to asserting and protecting animal
rights:

What ultimately proved fatal to ALVA 's claim, however, was the court's assertion that standing
doctrine further required ALVA to differentiate its genuine dedication to the humane treatment of
animals from the general disdain for animal cruelty shared by the public at large. In doing so, the
court found ALVA 's asserted organizational injury to be abstract and thus relegated ALVA to the
ranks of the "concerned bystander. "

....

In fact, the opinion in Animal Lovers suggests that such an arrangement is indeed possible. The
court indicated that ALVA might have obtained standing in its own right if it had an established
history of dedication to the cause of the humane treatment of animals. It noted that the Fund for
Animals had standing and indicated that another more well-known advocacy organization might
have had standing as well. The court further concluded that an organization's standing is more than
a derivative of its history, but history is a relevant consideration where organizations are not well-
established prior to commencing legal action. ALVA was not the proper plaintiff because it could not
identify previous activities demonstrating its recognized activism for and commitment to the dispute
independent of its desire to pursue legal action. The court's analysis suggests that a qualified
organization with a demonstrated commitment to a cause could indeed bring suit on behalf of the
speechless in the form of a court-sanctioned guardianship.18(Emphasis supplied, citation omitted)

What may be argued as being parallel to this concept of guardianship is the principle of human
stewardship over the environment in a citizen suit under the Rules of Procedure for Environmental
Cases. A citizen suit allows any Filipino to act as a representative of a party who has enforceable
rights under environmental laws before Philippine courts, and is defined in Section 5: .

SEC. 5. Citizen suit. - Any Filipino citizen in representation of others, including minors or generations
yet unborn, may file an action to enforce rights or obligations under environmental laws. Upon the
filing of a citizen suit, the court shall issue an order which shall contain a brief description of the
cause of action and the reliefs prayed for, requiring all interested parties to manifest their interest to
intervene in the case within fifteen (15) days from notice thereof. The plaintiff may publish the order
once in a newspaper of a general circulation in the Philippines or furnish all affected barangays
copies of said order.

There is no valid reason in law or the practical requirements of this case to implead and feign
representation on behalf of animals. To have done so betrays a very anthropocentric view of
environmental advocacy. There is no way that we, humans, can claim to speak for animals let alone
present that they would wish to use our court system, which is designed to ensure that humans
seriously carry their responsibility including ensuring a viable ecology for themselves, which of
course includes compassion for all living things.

Our rules on standing are sufficient and need not be further relaxed.

In Arigo v. Swift,19 I posed the possibility of further reviewing the broad interpretation we have given
to the rule on standing. While representatives are not required to establish direct injury on their part,
they should only be allowed to represent after complying with the following: [I]t is imperative for them
to indicate with certainty the injured parties on whose behalf they bring the suit. Furthermore, the
interest of those they represent must be based upon concrete legal rights. It is not sufficient to draw
out a perceived interest from a general, nebulous idea of a potential "injury."20

I reiterate my position in Arigo v. Swift and in Paje v. Casiño21 regarding this rule alongside the
appreciation of legal standing in Oposa v. Factoran22 for environmental cases. In Arigo, I opined that
procedural liberality, especially in cases brought by representatives, should be used with great
caution:

Perhaps it is time to revisit the ruling in Oposa v. Factoran.

That case was significant in that, at that time, there was need to call attention to environmental
concerns in light of emerging international legal principles. While "intergenerational responsibility" is
a noble principle, it should not be used to obtain judgments that would preclude future generations
from making their own assessment based on their actual concerns. The present generation must
restrain itself from assuming that it can speak best for those who will exist at a different time, under a
different set of circumstances. In essence, the unbridled resort to representative suit will inevitably
result in preventing future generations from protecting their own rights and pursuing their own
interests and decisions. It reduces the autonomy of our children and our children 's children. Even
before they are born, we again restricted their ability to make their own arguments.

It is my opinion that, at best, the use of the Oposa doctrine in environmental cases should be
allowed only when a) there is a clear legal basis for the representative suit; b) there are actual
concerns based squarely upon an existing legal right; c) there is no possibility of any countervailing
interests existing within the population represented or those that are yet to be born; and d) there is
an absolute necessity for such standing because there is a threat of catastrophe so imminent that an
immediate protective measure is necessary. Better still, in the light of its costs and risks, we
abandon the precedent all together.23 (Emphasis in the original)

Similarly, in Paje:

A person cannot invoke the court's jurisdiction if he or she has no right or interest to protect. He or
she who invokes the court's jurisdiction must be the "owner of the right sought to be enforced." In
other words, he or she must have a cause of action. An action may be dismissed on the ground of
lack of cause of action if the person who instituted it is not the real party in interest.24 The term
"interest" under the Rules of Court must refer to a material interest that is not merely a curiosity
about or an "interest in the question involved." The interest must be present and substantial. It is not
a mere expectancy or a future, contingent interest.

A person who is not a real party in interest may institute an action if he or she is suing as
representative of a .real party in interest. When an action is prosecuted or defended by a
representative, that representative is not and does not become the real party in interest. The person
represented is deemed the real party in interest. The representative remains to be a third party to the
action instituted on behalf of another.

....

To sue under this rule, two elements must be present: "(a) the suit is brought on behalf of an
identified party whose right has been violated, resulting in some form of damage, and (b) the
representative authorized by law or the Rules of Court to represent the victim."
The Rules of Procedure for Environmental Cases allows filing of a citizen's suit. A citizen's suit under
this rule allows any Filipino citizen to file an action for the enforcement of environmental law on
behalf of minors or generations yet unborn. It is essentially a representative suit that allows persons
who are not real parties in interest to institute actions on behalf of the real party in interest.

The expansion of what constitutes "real party in interest" to include minors and generations yet
unborn is a recognition of this court's ruling in Oposa v. Factoran. This court recognized the capacity
of minors (represented by their parents) to file a class suit on behalf of succeeding generations
based on the concept of intergenerational responsibility to ensure the future generation's access to
and enjoyment of [the] country's natural resources.

To allow citizen's suits to enforce environmental rights of others, including future generations, is
dangerous for three reasons:

First, they run the risk of foreclosing arguments of others who are unable to take part in the suit,
putting into. question its representativeness. Second, varying interests may potentially result in
arguments that are bordering on political issues, the resolutions of which do not fall upon this court.
Third, automatically allowing a class or citizen's suit on behalf of minors and generations yet unborn
may result in the oversimplification of what may be a complex issue, especially in light of the
impossibility of determining future generation's true interests on the matter.

In citizen's suits, persons who may have no interest in the case may file suits for others.
Uninterested persons will argue for the persons they represent, and the court will decide based on
their evidence and arguments. Any decision by the court will be binding upon the beneficiaries,
which in this case are the minors and the future generations. The court's decision will be res judicata
upon them and conclusive upon the issues presented.25

The danger in invoking Oposa v. Factoran to justify all kinds of environmental claims lies in its
potential to diminish the value of legitimate environmental rights. Extending the application of "real
party in interest" to the Resident Marine Mammals, or animals in general, through a judicial
pronouncement will potentially result in allowing petitions based on mere concern rather than an
actual enforcement of a right. It is impossible for animals to tell humans what their concerns are. At
best, humans can only surmise the extent of injury inflicted, if there be any. Petitions invoking a right
and seeking legal redress before this court cannot be a product of guesswork, and representatives
have the responsibility to ensure that they bring "reasonably cogent, rational, scientific, well-founded
arguments"26 on behalf of those they represent.

Creative approaches to fundamental problems should be welcome. However, they should be

considered carefully so that no unintended or unwarranted consequences should follow. I concur
with the approach of Madame Justice Teresita J. Leonardo-De Castro in her brilliant ponencia as it
carefully narrows down the doctrine in terms of standing. Resident Marine Mammals and the human
petitioners have no legal standing to file any kind of petition.

However, I agree that petitioners in G.R. No. 181527, namely, Central Visayas Fisherfolk
Development Center,. Engarcial, Yanong, and Labid, have standing both as real parties in interest
and as representatives of subsistence fisherfolks of the Municipalities of Aloguinsan and
Pinamungahan, Cebu, and their families, and the present and future generations of Filipinos whose
rights are similarly affected. The activities undertaken under Service Contract 46 (SC-46) directly
affected their source of livelihood, primarily felt through the significant reduction of their fish
harvest.27 The actual, direct, and material damage they suffered, which has potential long-term
effects transcending generations, is a proper subject of a legal suit.

III

In our jurisdiction, there is neither reason nor any legal basis for the concept of implied petitioners,
most especially when the implied petitioner was a sitting President of the Republic of the Philippines.
In G.R. No. 180771, apart from adjudicating unto themselves the status of "legal guardians" of
whales, dolphins, porpoises, and other cetacean species, human petitioners also impleaded Former
President Gloria Macapagal-Arroyo as "unwilling co-petitioner" for "her express declaration and
undertaking in the ASEAN Charter to protect Tañon Strait."28

No person may implead any other person as a co-plaintiff or co-petitioner without his or her consent.
In our jurisdiction, only when there is a party that should have been a necessary party but was
unwilling to join would there be an allegation as to why that party has been omitted. In Rule 3,
Section 9 of the 1997 Rules of Civil Procedure:

SEC. 9. Non-joinder of necessary parties to be pleaded. -Whenever in any pleading in which a claim
is asserted a necessary party is not joined, the pleader shall set forth his name, if known, and shall
state why he is omitted. Should the court find the reason for the omission unmeritorious, it may order
the inclusion of the omitted necessary party if jurisdiction over his person may be obtained.

The failure to comply with the order for his inclusion, without justifiable cause, shall be deemed a
waiver of the claim against such party.

The non-inclusion of a necessary party does not prevent the court from proceeding in the action, and
the judgment rendered therein shall be without prejudice to the rights of such necessary party.29

A party who should have been a plaintiff or petitioner but whose consent cannot be obtained should
be impleaded as a defendant in the nature of an unwilling co-plaintiff under Rule 3, Section 10 of the
1997 Rules of Civil Procedure:

SEC. 10. Unwilling co-plaintiff. - If the consent of any party who should be joined as plaintiff can not
be obtained, he may be made a defendant and the reason therefor shall be stated in the complaint.30

The reason for this rule is plain: Indispensable party plaintiffs who should be part of the action but
who do not consent should be put within the jurisdiction of the court through summons or other court
processes. Petitioners. should not take it upon themselves to simply imp lead any party who does
not consent as a petitioner. This places the unwilling co-petitioner at the risk of being denied due
process.

Besides, Former President Gloria Macapagal-Arroyo cannot be a party to this suit. As a co-equal
constitutional department, we cannot assume that the President needs to enforce policy directions
by suing his or her alter-egos. The procedural situation caused by petitioners may have gained
public attention, but its legal absurdity borders on the contemptuous. The Former President's name
should be stricken out of the title of this case.

IV

I also concur with the conclusion that SC-46 is both. illegal and unconstitutional.

SC-46 is illegal because it violates Republic Act No. ·7586 or the National Integrated Protected
Areas System Act of 1992, and Presidential Decree No. 1234,31 which declared Tañon Strait as a
protected seascape. It is unconstitutional because it violates the fourth paragraph of Article XII,
Section 2 of the Constitution.

Petitioner Central Visayas Fisherfolk Development Center asserts that SC-46 violated Article XII,
Section 2, paragraph 1 of the .1987 Constitution because Japan Petroleum Exploration Co., Ltd.
(JAPEX) is 100% Japanese-owned.32 It further asserts that SC-46 cannot be validly classified as a
technical and financial assistance agreement executed under Article XII, Section 2, paragraph 4 of
the 1987 Constitution.33 Public respondents counter that SC-46 does not fall under the coverage of
paragraph 1, but is a validly executed contract under paragraph 4.34· Public respondents further aver
that SC-46 neither granted exclusive fishing rights to JAPEX nor violated Central Visayas Fisherfolk
Development Center's right to preferential use of communal marine and fishing resources.35
 VI

Article XII, Section 2 of the 1987 Constitution states:

Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils,
all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception. of agricultural lands, all other natural
resources shall not be alienated. The exploration, development, and utilization of natural resources
shall be under the full control and supervision of the State. The State may directly undertake such
activities, or it may enter into co-production, joint venture, or production-sharing agreements with
Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned
by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable
for not more than twenty-five years, and under such terms and conditions as may be provided by
law. In cases of water rights for irrigation, water supply fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and limit of the grant.

The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and
exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.

The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as
well as cooperative fish farming, with priority to subsistence fishermen and fish-workers in rivers,
lakes, bays, and lagoons.

The President may enter into agreements with foreign-owned corporations involving either technical
or financial assistance for large-scale exploration, development, and utilization of minerals,
petroleum, and other mineral oils according to the general terms and conditions provided by law,
based on real contributions to the economic growth and general welfare of the country. In such
agreements, the State shall promote the development and use of local scientific and technical
resources.

The President shall notify the Congress of every contract entered into in accordance with this
provision, within thirty days from its execution. (Emphasis supplied)

I agree that fully foreign-owned corporations may participate in the exploration, development, and
use of natural resources, but only through either financial agreements or technical ones. This is the
clear import of the words "either financial or technical assistance agreements." This is also

the clear result if we compare the 1987 constitutional provision with the versions in the 1973 and
1935 Constitution:

1973 CONSTITUTION

ARTICLE XIV
THE NATIONAL ECONOMY AND THE PATRIMONY OF THE NATION

SEC. 9. The disposition, exploration, development, of exploitation, or utilization of any of the natural
resources of the Philippines shall be limited to citizens of the Philippines, or to corporations or
association at least sixty per centum of the capital of which is owned by such citizens. The Batasang
Pambansa, in the national interest, may allow such citizens, corporations, or associations to enter
into service contracts for financial, technical, management, or other forms of assistance with any
foreign person or entity for the exploitation, development, exploitation, or utilization of any of the
natural resources. Existing valid and binding service contracts for financial, the technical,
management, or other forms of assistance are hereby recognized as such. (Emphasis supplied)

1935 CONSTITUTION

ARTICLE XIII
CONSERVATION AND UTILIZATION OF NATURAL RESOURCES
SECTION 1. All agricultural timber, and mineral. lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy, and other natural resources of the
Philippines belong to the State, and their disposition, exploitation, development, or utilization shall be
limited to citizens of the Philippines, or to corporations or associations at least sixty per centum of
the capital of which is owned by such citizens, subject to any existing right, grant, lease, or
concession at the time of the inauguration of the Government established under this Constitution.
Natural resources, with the exception of public agricultural land, shall not be alienated, and no
license, concession, or lease for the exploitation, development, or utilization of any of the natural
resources shall be granted for a period exceeding twenty-five years, renewable for another twenty-
five years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other
than the development of water power, in which cases beneficial use may be the measure and the
limit of the grant.

The clear text of the Constitution in light of its history prevails over any attempt to infer interpretation
from the Constitutional Commission deliberations. The constitutional texts are the product of a full
sovereign act: deliberations in a constituent assembly and ratification. Reliance on recorded
discussion of Constitutional Commissions, on the other hand, may result in dependence on
incomplete authorship; Besides, it opens judicial review to further subjectivity from those who spoke
during the Constitutional Commission deliberations who may not have predicted how their words will
be used. It is safer that we use the words already in the Constitution. The Constitution was their
product. Its words were read by those who ratified it. The Constitution is what society relies upon
even at present.

SC-46 is neither a financial assistance nor a technical assistance agreement.

Even supposing for the sake of argument that it is, it could not be declared valid in light of the
standards set forth in La Bugal-B'laan Tribal Association, Inc. v. Ramos:36

Such service contracts may be entered into only with respect to minerals, petroleum and other
mineral oils. The grant thereof is subject to several safeguards, among which are these
requirements:

(1) The service contract shall be crafted m accordance with a general law that will set
standard or uniform terms, conditions and requirements, presumably to attain a certain
uniformity in provisions and avoid the possible insertion of terms disadvantageous to the
country.

(2) The President shall be the signatory for the government because, supposedly before an
agreement is presented to the President for signature, it will have been vetted several times
over at different levels to ensure that it conforms to law and can withstand public scrutiny.

(3) Within thirty days of the executed agreement, the President shall report it to Congress to
give that branch of government an opportunity to look over the agreement and interpose
timely objections, if any.37 (Emphasis in the original, citation omitted)

Based on the standards pronounced in La Bugal, SC-46' S validity must be tested against three
important points: (a) whether SC-46 was crafted in accordance with a general law that provides
standards, terms, and conditions; (b) whether SC-46 was signed by the President for and on behalf
of the government; and (c) whether it was reported by the President to Congress within 30 days of
execution.

VII

The general law referred to as a possible basis for SC-46's validity is Presidential Decree No. 87 or
the Oil Exploration and Development Act of 1972. It is my opinion that this law is unconstitutional in
1âwphi1

that it allows service contracts, contrary to Article XII, Section 2 of the 1987 Constitution:

The President may enter into agreements with foreign-owned corporations involving either technical
or financial assistance for large-scale exploration, development, and utilization of minerals,
petroleum, and other mineral oils according to the general terms and conditions provided by law,
based on real contributions to the economic growth and general welfare of the country. In such
agreements, the State shall promote the development and use of local scientific and technical
resources. (Emphasis supplied)

The deletion of service contracts from the enumeration of the kind of agreements the President may
enter into with foreign-owned corporations for exploration and utilization of resources means that
service contracts are no longer allowed by the Constitution. Pursuant to Article XVIII, Section 3 of
the 1987 Constitution,38 this inconsistency renders the law invalid and ineffective.

SC-46 suffers from the lack of a special law allowing its activities. The Main Opinion emphasizes an
important point, which is that SC-46 did not merely involve exploratory activities, but also provided
the rights and obligations of the parties should it be discovered that there is oil in commercial
quantities in the area. The Tañon Strait being a protected seascape under Presidential Decree No.
123439 requires that the exploitation and utilization of energy resources from that area are explicitly
covered by a law passed by Congress specifically for that purpose, pursuant to Section 14 of
Republic Act No. 7586 or the National Integrated Protected Areas System Act of 1992:

SEC. 14. Survey for Energy R6'sources. - Consistent with the policies declared in Section 2, hereof,
protected areas, except strict nature reserves and natural parks, may be subjected to exploration
only for the purpose of gathering information on energy resources and only if such activity is carried
out with the least damage to surrounding areas. Surveys shall be conducted only in accordance with
a program approved by the DENR, and the result of such surveys shall be made available to the
public and submitted to the President for recommendation to Congress. Any exploitation and
utilization of energy resources found within NIP AS areas shall be allowed only through a law passed
by Congress.40 (Emphasis supplied)

No law was passed by Congress specifically providing the standards, terms, and conditions of an oil
exploration, extraction, and/or utilization for Tañon Strait and, therefore, no such activities could
have been validly undertaken under SC-46. The National Integrated Protected Areas System Act of
1992 is clear that exploitation and utilization of energy resources in a protected seascape such as
Tañon Strait shall only be allowed through a specific law.

VIII

Former President Gloria Macapagal-Arroyo was not the signatory to SC-46, contrary to the
requirement set by paragraph 4 of Article XII, Section 2 for service contracts involving the
exploration of petroleum. SC-46 was entered into by then Department of Energy Secretary Vicente
S. Perez, Jr., on behalf of the government. I agree with the Main Opinion that in cases where the
Constitution or law requires the President to act personally on the matter, the duty cannot be
delegated to another public official.41 La Bugal highlights the importance of the President's
involvement, being one of the constitutional safeguards against abuse and corruption, as not mere
formality:

At this point, we sum up the matters established, based on a careful reading of the ConCom
deliberations, as follows:

• In their deliberations on what was to become paragraph 4, the framers used the term
service contracts in referring to agreements x x x involving either technical or financial
assistance. • They spoke of service contracts as the concept was understood in the 1973
Constitution.

• It was obvious from their discussions that they were not about to ban or eradicate service
contracts.

• Instead, they were plainly crafting provisions to. put in place safeguards that would
eliminate or m minimize the abuses prevalent during the marital law regime.42 (Emphasis in
the original)
Public respondents failed to show that. Former President Gloria Macapagal-Arroyo was involved in
the signing or execution of SC-46. The failure to comply with this constitutional requirement renders
SC-46 null and void.

IX

Public respondents also failed to show that Congress was subsequently informed of the execution
and existence of SC-46. The reporting requirement is an equally important requisite to the validity of
any service contract involving the exploration, development, and utilization of Philippine petroleum.
Public respondents' failure to report to Congress about SC-46 effectively took away any opportunity
for the legislative branch to scrutinize its terms and conditions.

In sum, SC-46 was executed and implemented absent all the requirements provided under
paragraph 4 of Article XII, Section 2. It is, therefore, null and void.

I am of the view that SC-46, aside from not having complied with the 1987 Constitution, is also null
and void for being violative of environmental laws protecting Tañon Strait. In particular, SC-46 was
implemented despite falling short of the requirements of the National Integrated Protected Areas
System Act of 1992.

As a protected seascape under Presidential Decree No. 1234,43 Tañon Strait is covered by the
National Integrated Protected Areas System Act of 1992. This law declares as a matter of policy:

SEC. 2. Declaration of Policy. Cognizant of the profound impact of man's activities on all
components of the natural environment particularly the effect of increasing population, resource
exploitation and industrial advancement and recognizing the critical importance of protecting and
maintaining the natural biological and physical diversities of the environment notably on areas with
biologically unique features to sustain human life and development, as well as plant and animal life,
it is hereby declared the policy of the State to secure for the Filipino people of present and future
generations the perpetual existence of all native plants and animals through the establishment of a
comprehensive system of integrated protected areas within the classification of national park as
provided for in the Constitution.

It is hereby recognized that these areas, although distinct in features, possess common ecological
values that may be incorporated into a holistic plan representative of our natural heritage; that
effective administration of these areas is possible only through cooperation among national
government, local and concerned private organizations; that the use and enjoyment of these
protected areas must be consistent with the principles of biological diversity and sustainable
development.

To this end, there is hereby established a National Integrated Protected Areas System (NIPAS),
which shall encompass outstanding remarkable areas and biologically important public lands that
are habitats of rare and endangered species of plants and animals, biogeographic zones and related
ecosystems, whether terrestrial, wetland or marine, all of which shall be designated as "protected
areas."44 (Emphasis supplied)

Pursuant to this law, any proposed activity in Tañon Strait must undergo an Environmental Impact
Assessment:

SEC. 12. Environmental Impact Assessment. - Proposals for activities which are outside the scope
of the management plan for protected areas shall be subject to an environmental impact assessment
as required by law before they are adopted, and the results thereof shall be taken into consideration
in the decision-making process.45(Emphasis supplied)

The same provision further requires that an Environmental Compliance Certificate be secured under
the Philippine Environmental Impact Assessment System before arty project is implemented:
No actual implementation of such activities shall be allowed without the required Environmental
Compliance Certificate (ECC) under the Philippine Environment Impact Assessment (EIA) system. In
instances where such activities are allowed to be undertaken, the proponent shall plan and carry
them out in such manner as will minimize any adverse effects and take preventive and remedial
action when appropriate. The proponent shall be liable for any damage due to lack of caution or
indiscretion.46 (Emphasis supplied)

In projects involving the exploration or utilization of energy resources, the National Integrated
Protected Areas System Act of 1992 additionally requires that a program be approved by the
Department of Environment and Natural Resources, which shall be publicly accessible. The program
shall also be submitted to the President, who in turn will recommend the program to Congress.
Furthermore, Congress must enact a law specifically allowing the exploitation of energy resources
found within a protected area such as Tañon Strait:

SEC. 14. Survey for Energy Resources. - Consistent with the policies declared in Section 2, hereof,
protected areas, except strict nature reserves and natural parks, may be subjected to exploration
only for the purpose of gathering information on energy resources and only if such activity is carried
out with the least damage to surrounding areas. Surveys shall be conducted only in accordance with
a program approved by the DENR, and the result of such surveys shall be made available to the
public and submitted to the President for recommendation to Congress. Any exploitation and
utilization of energy resources found within NIPAS areas shall be allowed only through a taw passed
by Congress.47 (Emphasis supplied)

Public respondents argue that SC-46 complied with the procedural requirements of obtaining an
Environmental Compliance Certificate.48 At any rate, they assert that the activities covered by SC-46
fell under Section 14 of the National Integrated Protected Areas System Act of 1992, which they
interpret to be an exception to Section 12. They argue that the Environmental Compliance Certificate
is not a strict requirement for the validity of SC-46 since (a) the Tañon Strait is not a nature' reserve
or natural park; (b) the exploration was merely for gathering information; and ( c) measures were in
place to ensure that the exploration caused the least possible damage to the area.49

Section 14 is not an exception to Section 12, but instead provides additional requirements for cases
involving Philippine energy resources. The National Integrated Protected Areas System Act of 1992
was enacted to recognize the importance of protecting the environment in light of resource
exploitation, among others.50 Systems are put in place to secure for Filipinos local resources under
the most favorable conditions. With the status of Tañon Strait as a protected seascape, the
institution of additional legal safeguards is even more significant.

Public respondents did not validly obtain an Environmental Compliance Certificate for SC-46. Based
on the records, JAPEX commissioned an environmental impact evaluation only in the second
subphase of its project, with the Environmental Management .Bureau of Region

VII granting the project an Environmental Compliance Certificate on March 6, 2007.51

Despite its scale, the seismic surveys from May 9 to 18, 2005 were conducted without any
environmental assessment contrary to Section 12 of the National Integrated Protected Areas System
Act of 1992.

XI

Finally, we honor every living creature when we take care of our environment. As sentient species,
we do not lack in the wisdom or sensitivity to realize that we only borrow the resources that we use
to survive and to thrive. We are not incapable of mitigating the greed that is slowly causing the
demise of our planet. Thus, there is no need for us to feign representation of any other species or
some imagined unborn generation in filing any action in our courts of law to claim any of our
fundamental rights to a healthful ecology. In this way and with candor and courage, we fully shoulder
the responsibility deserving of the grace and power endowed on our species.

ACCORDINGLY, I vote:
 (a) to DISMISS G.R. No. 180771 for lack of standing and STRIKE OUT the name of Former
President Gloria Macapagal-Arroyo from the title of this case;

(b) to GRANT G.R. No. 181527; and

(c) to DECLARE SERVICE CONTRACT 46 NULL AND VOID for violating the 1987
Constitution, Republic Act No. 7586, and Presidential Decree No. 1234.

MARVIC M.V.F. LEONEN

Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 203335 February 11, 2014

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL
and ERNESTO SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR
AND LOCAL GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL
POLICE and THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.

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

G.R. No. 203299

LOUIS "BAROK" C. BIRAOGO, Petitioner,

vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL POLICE, Respondents.

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

G.R. No. 203306

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY

S. YAP, BERTENI "TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA,
RONALDO E. RENTA, CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino III, SENATE
OF THE PHILIPPINES, and HOUSE OF REPRESENTATIVES, Respondents.

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

G.R. No. 203359

SENATOR TEOFISTO DL GUINGONA III, Petitioner,

vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE, and DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents.

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

G.R. No. 203378

ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY

L. ROQUE, JR., ROMEL R. BAGARES, and GILBERT T. ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE
DEPARTMENT OF JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE NATIONAL BUREAU OF INVESTIGATION, THE PHILIPPINE NATIONAL
POLICE, AND THE INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE-
DEPARTMENT OF SCIENCE AND TECHNOLOGY, Respondents.
x-----------------------x

G.R. No. 203391

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF

ANAKBAYAN, MA. KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE
THERESE BAGUISI OF THE NATIONAL UNION OF STUDENTS OF THE PHILIPPINES, ET
AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of President
Benigno Simeon Aquino III, LEILA DE LIMA in her capacity as Secretary of
Justice, Respondents.

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

G.R. No. 203407

BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR.,

National Artist BIENVENIDO L. LUMBERA, Chairperson of Concerned Artists of the
Philippines, ELMER C. LABOG, Chairperson of Kilusang Mayo Uno, CRISTINA E. PALABAY,
Secretary General of Karapatan, FERDINAND R. GAITE, Chairperson of COURAGE, JOEL B.
MAGLUNSOD, Vice President of Anakpawis Party-List, LANA R. LINABAN, Secretary General
Gabriela Women's Party, ADOLFO ARES P. GUTIERREZ, and JULIUS GARCIA
MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines, PAQUITO N.
OCHOA, JR., Executive Secretary, SENATE OF THE PHILIPPINES, represented by SENATE
PRESIDENT JUAN PONCE ENRILE, HOUSE OF REPRESENTATIVES, represented by
SPEAKER FELICIANO BELMONTE, JR., LEILA DE LIMA, Secretary of the Department of
Justice, LOUIS NAPOLEON C. CASAMBRE, Executive Director of the Information and
Communications Technology Office, NONNATUS CAESAR R. ROJAS, Director of the National
Bureau of Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the Philippine National
Police, MANUEL A. ROXAS II, Secretary of the Department of the Interior and Local
Government, Respondents.

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

G.R. No. 203440

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY

PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN (all of the
Ateneo Human Rights Center),Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary, HONORABLE LEILA
DE LIMA in her capacity as Secretary of Justice, HONORABLE MANUEL ROXAS in his
capacity as Secretary of the Department of Interior and Local Government, The CHIEF of the
Philippine National Police, The DIRECTOR of the National Bureau of Investigation (all of the
Executive Department of Government), Respondents.

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

G.R. No. 203453

NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS

INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA
CARRANZA PARAAN, MELINDA QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL
SEBELLINO AND THE PETITIONERS IN THE e-PETITION http://www.nujp.org/no-to-
ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND MANAGEMENT,
THE DIRECTOR GENERAL OF THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, THE CYBERCRIME INVESTIGATION AND
COORDINATING CENTER, AND ALL AGENCIES AND INSTRUMENTALITIES OF
GOVERNMENT AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS, ORDERS,
DIRECTION IN RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO.
10175, Respondents.

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

G.R. No. 203454

PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,

vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT,Respondents.

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

G.R. No. 203469

ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK

RONALD C. RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A.
LOZADA; GERARD ADRIAN P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T.
JUAN; BRENDALYN P. RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY S.
REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON; BENRALPH S. YU; CEBU
BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR; and PINOY EXPAT/OFW
BLOG AWARDS, INC. COORDINATOR PEDRO E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the Republic of the
Philippines; SENATE OF THE PHILIPPINES, represented by HON. JUAN PONCE ENRILE, in
his capacity as Senate President; HOUSE OF REPRESENTATIVES, represented by
FELICIANO R. BELMONTE, JR., in his capacity as Speaker of the House of Representatives;
HON. PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary; HON. LEILA M. DE
LIMA, in her capacity as Secretary of Justice; HON. LOUIS NAPOLEON C. CASAMBRE, in his
capacity as Executive Director, Information and Communications Technology Office; HON.
NONNATUS CAESAR R. ROJAS, in his capacity as Director, National Bureau of Investigation;
and P/DGEN. NICANOR A. BARTOLOME, in his capacity as Chief, Philippine National
Police, Respondents.

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

G.R. No. 203501

PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President of the
Republic of the Philippines; HON. PAQUITO N. OCHOA, JR., in his official capacity as
Executive Secretary; HON. LEILA M. DE LIMA, in her official capacity as Secretary of Justice;
LOUIS NAPOLEON C. CASAMBRE, in his official capacity as Executive Director, Information
and Communications Technology Office; NONNATUS CAESAR R. ROJAS, in his official
capacity as Director of the National Bureau of Investigation; and DIRECTOR GENERAL
NICANOR A. BARTOLOME, in his official capacity as Chief of the Philippine National
Police,Respondents.

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

G.R. No. 203509

BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,
vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.

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

G.R. No. 203515

NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D. ANTIPORDA

in his capacity as President and in his personal capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF
JUSTICE, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL
POLICE, NATIONAL BUREAU OF INVESTIGATION, DEPARTMENT OF BUDGET AND
MANAGEMENT AND ALL OTHER GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS
IN THE PASSAGE AND/OR IMPLEMENTATION OF REPUBLIC ACT 10175, Respondents.

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

G.R. No. 203518

PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE

COLLECTIVE FOR MODERN HEROISM, represented by Leni Velasco, PARTIDO LAKAS NG
MASA, represented by Cesar S. Melencio, FRANCIS EUSTON R. ACERO, MARLON ANTHONY
ROMASANTA TONSON, TEODORO A. CASIÑO, NOEMI LARDIZABAL-DADO, IMELDA
ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M. RAGRAGIO, MARIA FATIMA A.
VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA TOBIAS
SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO, ROMEO
FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG, ANA ALEXANDRA C.
CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF
INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF SCIENCE AND TECHNOLOGY,
THE EXECUTIVE DIRECTOR OF THE INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR
OF THE NATIONAL BUREAU OF INVESTIGATION, THE CHIEF, PHILIPPINE NATIONAL
POLICE, THE HEAD OF THE DOJ OFFICE OF CYBERCRIME, and THE OTHER MEMBERS OF
THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, Respondents.

DECISION

ABAD, J.:

These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175, the
Cybercrime Prevention Act of 2012, unconstitutional and void.

The Facts and the Case

The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or
computer, a person can connect to the internet, a system that links him to other computers and
enable him, among other things, to:

1. Access virtual libraries and encyclopedias for all kinds of information that he needs for
research, study, amusement, upliftment, or pure curiosity;

2. Post billboard-like notices or messages, including pictures and videos, for the general
public or for special audiences like associates, classmates, or friends and read postings from
them;
 3. Advertise and promote goods or services and make purchases and payments;

4. Inquire and do business with institutional entities like government agencies, banks, stock
exchanges, trade houses, credit card companies, public utilities, hospitals, and schools; and

5. Communicate in writing or by voice with any person through his e-mail address or
telephone.

This is cyberspace, a system that accommodates millions and billions of simultaneous and ongoing
individual accesses to and uses of the internet. The cyberspace is a boon to the need of the current
generation for greater information and facility of communication. But all is not well with the system
since it could not filter out a number of persons of ill will who would want to use cyberspace
technology for mischiefs and crimes. One of them can, for instance, avail himself of the system to
unjustly ruin the reputation of another or bully the latter by posting defamatory statements against
him that people can read.

And because linking with the internet opens up a user to communications from others, the ill-
motivated can use the cyberspace for committing theft by hacking into or surreptitiously accessing
his bank account or credit card or defrauding him through false representations. The wicked can use
the cyberspace, too, for illicit trafficking in sex or for exposing to pornography guileless children who
have access to the internet. For this reason, the government has a legitimate right to regulate the
use of cyberspace and contain and punish wrongdoings.

Notably, there are also those who would want, like vandals, to wreak or cause havoc to the
computer systems and networks of indispensable or highly useful institutions as well as to the laptop
or computer programs and memories of innocent individuals. They accomplish this by sending
electronic viruses or virtual dynamites that destroy those computer systems, networks, programs,
and memories. The government certainly has the duty and the right to prevent these tomfooleries
from happening and punish their perpetrators, hence the Cybercrime Prevention Act.

But petitioners claim that the means adopted by the cybercrime law for regulating undesirable
cyberspace activities violate certain of their constitutional rights. The government of course asserts
that the law merely seeks to reasonably put order into cyberspace activities, punish wrongdoings,
and prevent hurtful attacks on the system.

Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013 the
Court extended the original 120-day temporary restraining order (TRO) that it earlier issued on
October 9, 2012, enjoining respondent government agencies from implementing the cybercrime law
until further orders.

The Issues Presented

Petitioners challenge the constitutionality of the following provisions of the cybercrime law that
regard certain acts as crimes and impose penalties for their commission as well as provisions that
would enable the government to track down and penalize violators. These provisions are:

a. Section 4(a)(1) on Illegal Access;

b. Section 4(a)(3) on Data Interference;

c. Section 4(a)(6) on Cyber-squatting;

d. Section 4(b)(3) on Identity Theft;

e. Section 4(c)(1) on Cybersex;

f. Section 4(c)(2) on Child Pornography;

 g. Section 4(c)(3) on Unsolicited Commercial Communications;

h. Section 4(c)(4) on Libel;

i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;

j. Section 6 on the Penalty of One Degree Higher;

k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;

l. Section 8 on Penalties;

m. Section 12 on Real-Time Collection of Traffic Data;

n. Section 13 on Preservation of Computer Data;

o. Section 14 on Disclosure of Computer Data;

p. Section 15 on Search, Seizure and Examination of Computer Data;

q. Section 17 on Destruction of Computer Data;

r. Section 19 on Restricting or Blocking Access to Computer Data;

s. Section 20 on Obstruction of Justice;

t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and

u. Section 26(a) on CICC’s Powers and Functions.

Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362 of the
RPC on the crime of libel.

The Rulings of the Court

Section 4(a)(1)

Section 4(a)(1) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime
punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

(1) Illegal Access. – The access to the whole or any part of a computer system without right.

Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of laws that
interfere with the fundamental rights of the people and should thus be struck down.

The Court has in a way found the strict scrutiny standard, an American constitutional
construct,1 useful in determining the constitutionality of laws that tend to target a class of things or
persons. According to this standard, a legislative classification that impermissibly interferes with the
exercise of fundamental right or operates to the peculiar class disadvantage of a suspect class is
presumed unconstitutional. The burden is on the government to prove that the classification is
necessary to achieve a compelling state interest and that it is the least restrictive means to protect
such interest.2 Later, the strict scrutiny standard was used to assess the validity of laws dealing with
the regulation of speech, gender, or race as well as other fundamental rights, as expansion from its
earlier applications to equal protection.3

In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the application of the
strict scrutiny standard since no fundamental freedom, like speech, is involved in punishing what is
essentially a condemnable act – accessing the computer system of another without right. It is a
universally condemned conduct.4

Petitioners of course fear that this section will jeopardize the work of ethical hackers, professionals
who employ tools and techniques used by criminal hackers but would neither damage the target
systems nor steal information. Ethical hackers evaluate the target system’s security and report back
to the owners the vulnerabilities they found in it and give instructions for how these can be remedied.
Ethical hackers are the equivalent of independent auditors who come into an organization to verify
its bookkeeping records.5

Besides, a client’s engagement of an ethical hacker requires an agreement between them as to the
extent of the search, the methods to be used, and the systems to be tested. This is referred to as the
"get out of jail free card."6Since the ethical hacker does his job with prior permission from the client,
such permission would insulate him from the coverage of Section 4(a)(1).

Section 4(a)(3) of the Cybercrime Law

Section 4(a)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime
punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

xxxx

(3) Data Interference. – The intentional or reckless alteration, damaging, deletion or deterioration of
computer data, electronic document, or electronic data message, without right, including the
introduction or transmission of viruses.

Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to discourage
data interference, it intrudes into the area of protected speech and expression, creating a chilling
and deterrent effect on these guaranteed freedoms.

Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state
regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby
invading the area of protected freedoms.7 But Section 4(a)(3) does not encroach on these freedoms
at all. It simply punishes what essentially is a form of vandalism,8 the act of willfully destroying
without right the things that belong to others, in this case their computer data, electronic document,
or electronic data message. Such act has no connection to guaranteed freedoms. There is no
freedom to destroy other people’s computer systems and private documents.

All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem
effect9 or the fear of possible prosecution that hangs on the heads of citizens who are minded to step
beyond the boundaries of what is proper. But to prevent the State from legislating criminal laws
because they instill such kind of fear is to render the state powerless in addressing and penalizing
socially harmful conduct.10 Here, the chilling effect that results in paralysis is an illusion since Section
4(a)(3) clearly describes the evil that it seeks to punish and creates no tendency to intimidate the
free exercise of one’s constitutional rights.

Besides, the overbreadth challenge places on petitioners the heavy burden of proving that under no
set of circumstances will Section 4(a)(3) be valid.11 Petitioner has failed to discharge this burden.
Section 4(a)(6) of the Cybercrime Law

Section 4(a)(6) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime
punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

xxxx

(6) Cyber-squatting. – The acquisition of domain name over the internet in bad faith to profit,
mislead, destroy the reputation, and deprive others from registering the same, if such a domain
name is:

(i) Similar, identical, or confusingly similar to an existing trademark registered with the
appropriate government agency at the time of the domain name registration;

(ii) Identical or in any way similar with the name of a person other than the registrant, in case
of a personal name; and

(iii) Acquired without right or with intellectual property interests in it.

Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clause12 in that,
not being narrowly tailored, it will cause a user using his real name to suffer the same fate as those
who use aliases or take the name of another in satire, parody, or any other literary device. For
example, supposing there exists a well known billionaire-philanthropist named "Julio Gandolfo," the
law would punish for cyber-squatting both the person who registers such name because he claims it
to be his pseudo-name and another who registers the name because it happens to be his real name.
Petitioners claim that, considering the substantial distinction between the two, the law should
recognize the difference.

But there is no real difference whether he uses "Julio Gandolfo" which happens to be his real name
or use it as a pseudo-name for it is the evil purpose for which he uses the name that the law
condemns. The law is reasonable in penalizing him for acquiring the domain name in bad faith to
profit, mislead, destroy reputation, or deprive others who are not ill-motivated of the rightful
opportunity of registering the same. The challenge to the constitutionality of Section 4(a)(6) on
ground of denial of equal protection is baseless.

Section 4(b)(3) of the Cybercrime Law

Section 4(b)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime
punishable under this Act:

xxxx

b) Computer-related Offenses:

xxxx

(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer, possession,
alteration, or deletion of identifying information belonging to another, whether natural or juridical,
without right: Provided: that if no damage has yet been caused, the penalty imposable shall be one
(1) degree lower.
Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy
and correspondence, and transgresses the freedom of the press.

The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a
facet of the right protected by the guarantee against unreasonable searches and seizures.13 But the
Court acknowledged its existence as early as 1968 in Morfe v. Mutuc,14 it ruled that the right to
privacy exists independently of its identification with liberty; it is in itself fully deserving of
constitutional protection.

Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy."
The Court explained in "In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio
v. Senator Gordon"15 the relevance of these zones to the right to privacy:

Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion
is impermissible unless excused by law and in accordance with customary legal process. The
meticulous regard we accord to these zones arises not only from our conviction that the right to
privacy is a "constitutional right" and "the right most valued by civilized men," but also from our
adherence to the Universal Declaration of Human Rights which mandates that, "no one shall be
subjected to arbitrary interference with his privacy" and "everyone has the right to the protection of
the law against such interference or attacks."

Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable
searches16 and seizures, which is the basis of the right to be let alone, and (b) the right to privacy of
communication and correspondence.17 In assessing the challenge that the State has impermissibly
intruded into these zones of privacy, a court must determine whether a person has exhibited a
reasonable expectation of privacy and, if so, whether that expectation has been violated by
unreasonable government intrusion.18

The usual identifying information regarding a person includes his name, his citizenship, his
residence address, his contact number, his place and date of birth, the name of his spouse if any,
his occupation, and similar data.19 The law punishes those who acquire or use such identifying
information without right, implicitly to cause damage. Petitioners simply fail to show how government
effort to curb computer-related identity theft violates the right to privacy and correspondence as well
as the right to due process of law.

Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold water
since the specific conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly,
what this section regulates are specific actions: the acquisition, use, misuse or deletion of personal
identifying data of another. There is no fundamental right to acquire another’s personal data.

Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists
would be hindered from accessing the unrestricted user account of a person in the news to secure
information about him that could be published. But this is not the essence of identity theft that the
law seeks to prohibit and punish. Evidently, the theft of identity information must be intended for an
illegitimate purpose. Moreover, acquiring and disseminating information made public by the user
himself cannot be regarded as a form of theft.

The Court has defined intent to gain as an internal act which can be established through the overt
acts of the offender, and it may be presumed from the furtive taking of useful property pertaining to
another, unless special circumstances reveal a different intent on the part of the perpetrator.20 As
such, the press, whether in quest of news reporting or social investigation, has nothing to fear since
a special circumstance is present to negate intent to gain which is required by this Section.

Section 4(c)(1) of the Cybercrime Law

Section 4(c)(1) provides:

Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of cybercrime punishable
under this Act:
 xxxx

(c) Content-related Offenses:

(1) Cybersex.– The willful engagement, maintenance, control, or operation, directly or indirectly, of
any lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for
favor or consideration.

Petitioners claim that the above violates the freedom of expression clause of the Constitution.21 They
express fear that private communications of sexual character between husband and wife or
consenting adults, which are not regarded as crimes under the penal code, would now be regarded
as crimes when done "for favor" in cyberspace. In common usage, the term "favor" includes
"gracious kindness," "a special privilege or right granted or conceded," or "a token of love (as a
ribbon) usually worn conspicuously."22 This meaning given to the term "favor" embraces socially
tolerated trysts. The law as written would invite law enforcement agencies into the bedrooms of
married couples or consenting individuals.

But the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime
Prevention Act give a proper perspective on the issue. These deliberations show a lack of intent to
penalize a "private showing x x x between and among two private persons x x x although that may
be a form of obscenity to some."23 The understanding of those who drew up the cybercrime law is
that the element of "engaging in a business" is necessary to constitute the illegal cybersex.24 The Act
actually seeks to punish cyber prostitution, white slave trade, and pornography for favor and
consideration. This includes interactive prostitution and pornography, i.e., by webcam.25

The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or sexual activity—is not
novel. Article 201 of the RPC punishes "obscene publications and exhibitions and indecent shows."
The Anti-Trafficking in Persons Act of 2003 penalizes those who "maintain or hire a person to
engage in prostitution or pornography."26 The law defines prostitution as any act, transaction,
scheme, or design involving the use of a person by another, for sexual intercourse or lascivious
conduct in exchange for money, profit, or any other consideration.27

The case of Nogales v. People28 shows the extent to which the State can regulate materials that
serve no other purpose than satisfy the market for violence, lust, or pornography.29 The Court
weighed the property rights of individuals against the public welfare. Private property, if containing
pornographic materials, may be forfeited and destroyed. Likewise, engaging in sexual acts privately
through internet connection, perceived by some as a right, has to be balanced with the mandate of
the State to eradicate white slavery and the exploitation of women.

In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds
of obscenity.30The Court will not declare Section 4(c)(1) unconstitutional where it stands a
construction that makes it apply only to persons engaged in the business of maintaining, controlling,
or operating, directly or indirectly, the lascivious exhibition of sexual organs or sexual activity with the
aid of a computer system as Congress has intended.

Section 4(c)(2) of the Cybercrime Law

Section 4(c)(2) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:

xxxx

(c) Content-related Offenses:

xxxx
(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act
No. 9775 or the Anti-Child Pornography Act of 2009, committed through a computer system:
Provided, That the penalty to be imposed shall be (1) one degree higher than that provided for in
Republic Act No. 9775.

It seems that the above merely expands the scope of the Anti-Child Pornography Act of
200931 (ACPA) to cover identical activities in cyberspace. In theory, nothing prevents the government
from invoking the ACPA when prosecuting persons who commit child pornography using a computer
system. Actually, ACPA’s definition of child pornography already embraces the use of "electronic,
mechanical, digital, optical, magnetic or any other means." Notably, no one has questioned this
ACPA provision.

Of course, the law makes the penalty higher by one degree when the crime is committed in
cyberspace. But no one can complain since the intensity or duration of penalty is a legislative
prerogative and there is rational basis for such higher penalty.32 The potential for uncontrolled
proliferation of a particular piece of child pornography when uploaded in the cyberspace is
incalculable.

Petitioners point out that the provision of ACPA that makes it unlawful for any person to "produce,
direct, manufacture or create any form of child pornography"33 clearly relates to the prosecution of
persons who aid and abet the core offenses that ACPA seeks to punish.34 Petitioners are wary that a
person who merely doodles on paper and imagines a sexual abuse of a 16-year-old is not criminally
liable for producing child pornography but one who formulates the idea on his laptop would be.
Further, if the author bounces off his ideas on Twitter, anyone who replies to the tweet could be
considered aiding and abetting a cybercrime.

The question of aiding and abetting the offense by simply commenting on it will be discussed
elsewhere below. For now the Court must hold that the constitutionality of Section 4(c)(2) is not
successfully challenged.

Section 4(c)(3) of the Cybercrime Law

Section 4(c)(3) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(3) Unsolicited Commercial Communications. – The transmission of commercial electronic

communication with the use of computer system which seeks to advertise, sell, or offer for sale
products and services are prohibited unless:

(i) There is prior affirmative consent from the recipient; or

(ii) The primary intent of the communication is for service and/or administrative
announcements from the sender to its existing users, subscribers or customers; or

(iii) The following conditions are present:

(aa) The commercial electronic communication contains a simple, valid, and reliable
way for the recipient to reject receipt of further commercial electronic messages (opt-
out) from the same source;
 (bb) The commercial electronic communication does not purposely disguise the
source of the electronic message; and

(cc) The commercial electronic communication does not purposely include

misleading information in any part of the message in order to induce the recipients to
read the message.

The above penalizes the transmission of unsolicited commercial communications, also known as
"spam." The term "spam" surfaced in early internet chat rooms and interactive fantasy games. One
who repeats the same sentence or comment was said to be making a "spam." The term referred to a
Monty Python’s Flying Circus scene in which actors would keep saying "Spam, Spam, Spam, and
Spam" when reading options from a menu.35

The Government, represented by the Solicitor General, points out that unsolicited commercial
communications or spams are a nuisance that wastes the storage and network capacities of internet
service providers, reduces the efficiency of commerce and technology, and interferes with the
owner’s peaceful enjoyment of his property. Transmitting spams amounts to trespass to one’s
privacy since the person sending out spams enters the recipient’s domain without prior permission.
The OSG contends that commercial speech enjoys less protection in law.

But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the
"efficiency of computers." Secondly, people, before the arrival of the age of computers, have already
been receiving such unsolicited ads by mail. These have never been outlawed as nuisance since
people might have interest in such ads. What matters is that the recipient has the option of not
opening or reading these mail ads. That is true with spams. Their recipients always have the option
to delete or not to read them.

To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even
unsolicited commercial ads addressed to him. Commercial speech is a separate category of speech
which is not accorded the same level of protection as that given to other constitutionally guaranteed
forms of expression but is nonetheless entitled to protection.36 The State cannot rob him of this right
without violating the constitutionally guaranteed freedom of expression. Unsolicited advertisements
are legitimate forms of expression.

Articles 353, 354, and 355 of the Penal Code

Section 4(c)(4) of the Cyber Crime Law

Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section
4(c)(4) of the Cybercrime Prevention Act on cyberlibel.

The RPC provisions on libel read:

Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or
defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause
the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one
who is dead.

Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious,
even if it be true, if no good intention and justifiable motive for making it is shown, except in the
following cases:

1. A private communication made by any person to another in the performance of any legal,
moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative or other official proceedings which are not of confidential nature, or of any
 statement, report or speech delivered in said proceedings, or of any other act performed by
public officers in the exercise of their functions.

Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing,
lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition,
or any similar means, shall be punished by prision correccional in its minimum and medium periods
or a fine ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be
brought by the offended party.

The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of it the
provisions of the RPC on libel. Thus Section 4(c)(4) reads:

Sec. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable
under this Act:

xxxx

(c) Content-related Offenses:

xxxx

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal
Code, as amended, committed through a computer system or any other similar means which may be
devised in the future.

Petitioners lament that libel provisions of the penal code37 and, in effect, the libel provisions of the
cybercrime law carry with them the requirement of "presumed malice" even when the latest
jurisprudence already replaces it with the higher standard of "actual malice" as a basis for
conviction.38 Petitioners argue that inferring "presumed malice" from the accused’s defamatory
statement by virtue of Article 354 of the penal code infringes on his constitutionally guaranteed
freedom of expression.

Petitioners would go further. They contend that the laws on libel should be stricken down as
unconstitutional for otherwise good jurisprudence requiring "actual malice" could easily be
overturned as the Court has done in Fermin v. People39 even where the offended parties happened
to be public figures.

The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b)
publication of the charge; (c) identity of the person defamed; and (d) existence of malice.40

There is "actual malice" or malice in fact41 when the offender makes the defamatory statement with
the knowledge that it is false or with reckless disregard of whether it was false or not.42 The reckless
disregard standard used here requires a high degree of awareness of probable falsity. There must
be sufficient evidence to permit the conclusion that the accused in fact entertained serious doubts as
to the truth of the statement he published. Gross or even extreme negligence is not sufficient to
establish actual malice.43

The prosecution bears the burden of proving the presence of actual malice in instances where such
element is required to establish guilt. The defense of absence of actual malice, even when the
statement turns out to be false, is available where the offended party is a public official or a public
figure, as in the cases of Vasquez (a barangay official) and Borjal (the Executive Director, First
National Conference on Land Transportation). Since the penal code and implicitly, the cybercrime
law, mainly target libel against private persons, the Court recognizes that these laws imply a stricter
standard of "malice" to convict the author of a defamatory statement where the offended party is a
public figure. Society’s interest and the maintenance of good government demand a full discussion
of public affairs.44
Parenthetically, the Court cannot accept the proposition that its ruling in Fermin disregarded the
higher standard of actual malice or malice in fact when it found Cristinelli Fermin guilty of committing
libel against complainants who were public figures. Actually, the Court found the presence of malice
in fact in that case. Thus:

It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations
against complainants. Thus, petitioner cannot, by simply making a general denial, convince us that
there was no malice on her part. Verily, not only was there malice in law, the article being malicious
in itself, but there was also malice in fact, as there was motive to talk ill against complainants during
the electoral campaign. (Emphasis ours)

Indeed, the Court took into account the relatively wide leeway given to utterances against public
figures in the above case, cinema and television personalities, when it modified the penalty of
imprisonment to just a fine of P6,000.00.

But, where the offended party is a private individual, the prosecution need not prove the presence of
malice. The law explicitly presumes its existence (malice in law) from the defamatory character of
the assailed statement.45 For his defense, the accused must show that he has a justifiable reason for
the defamatory statement even if it was in fact true.46

Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the
country’s obligations under the International Covenant of Civil and Political Rights (ICCPR). They
point out that in Adonis v. Republic of the Philippines,47 the United Nations Human Rights Committee
(UNHRC) cited its General Comment 34 to the effect that penal defamation laws should include the
defense of truth.

But General Comment 34 does not say that the truth of the defamatory statement should constitute
an all-encompassing defense. As it happens, Article 361 recognizes truth as a defense but under the
condition that the accused has been prompted in making the statement by good motives and for
justifiable ends. Thus:

Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be given in
evidence to the court and if it appears that the matter charged as libelous is true, and, moreover, that
it was published with good motives and for justifiable ends, the defendants shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be
admitted, unless the imputation shall have been made against Government employees with respect
to facts related to the discharge of their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.

Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize
libel. It simply suggested that defamation laws be crafted with care to ensure that they do not stifle
freedom of expression.48Indeed, the ICCPR states that although everyone should enjoy freedom of
expression, its exercise carries with it special duties and responsibilities. Free speech is not
absolute. It is subject to certain restrictions, as may be necessary and as may be provided by law.49

The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and
that the government has an obligation to protect private individuals from defamation. Indeed,
cyberlibel is actually not a new crime since Article 353, in relation to Article 355 of the penal code,
already punishes it. In effect, Section 4(c)(4) above merely affirms that online defamation constitutes
"similar means" for committing libel.

But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the author of the
libelous statement or article. Cyberlibel brings with it certain intricacies, unheard of when the penal
code provisions on libel were enacted. The culture associated with internet media is distinct from
that of print.
The internet is characterized as encouraging a freewheeling, anything-goes writing style.50 In a
sense, they are a world apart in terms of quickness of the reader’s reaction to defamatory
statements posted in cyberspace, facilitated by one-click reply options offered by the networking site
as well as by the speed with which such reactions are disseminated down the line to other internet
users. Whether these reactions to defamatory statement posted on the internet constitute aiding and
abetting libel, acts that Section 5 of the cybercrime law punishes, is another matter that the Court will
deal with next in relation to Section 5 of the law.

Section 5 of the Cybercrime Law

Section 5 provides:

Sec. 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or
aids in the commission of any of the offenses enumerated in this Act shall be held liable.

(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit
any of the offenses enumerated in this Act shall be held liable.

Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who
willfully abets or aids in the commission or attempts to commit any of the offenses enumerated as
cybercrimes. It suffers from overbreadth, creating a chilling and deterrent effect on protected
expression.

The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding
and abetting sufficiently protects the freedom of expression of "netizens," the multitude that avail
themselves of the services of the internet. He points out that existing laws and jurisprudence
sufficiently delineate the meaning of "aiding or abetting" a crime as to protect the innocent. The
Solicitor General argues that plain, ordinary, and common usage is at times sufficient to guide law
enforcement agencies in enforcing the law.51 The legislature is not required to define every single
word contained in the laws they craft.

Aiding or abetting has of course well-defined meaning and application in existing laws. When a
person aids or abets another in destroying a forest,52 smuggling merchandise into the country,53 or
interfering in the peaceful picketing of laborers,54 his action is essentially physical and so is
susceptible to easy assessment as criminal in character. These forms of aiding or abetting lend
themselves to the tests of common sense and human experience.

But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat
blurred. The idea of "aiding or abetting" wrongdoings online threatens the heretofore popular and
unchallenged dogmas of cyberspace use.

According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have accessed the
internet within a year, translating to about 31 million users.55 Based on a recent survey, the
Philippines ranks 6th in the top 10 most engaged countries for social networking.56 Social networking
sites build social relations among people who, for example, share interests, activities, backgrounds,
or real-life connections.57

Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people
with shared interests use Facebook to get in touch.58 Users register at this site, create a personal
profile or an open book of who they are, add other users as friends, and exchange messages,
including automatic notifications when they update their profile.59 A user can post a statement, a
photo, or a video on Facebook, which can be made visible to anyone, depending on the user’s
privacy settings.

If the post is made available to the public, meaning to everyone and not only to his friends, anyone
on Facebook can react to the posting, clicking any of several buttons of preferences on the
program’s screen such as "Like," "Comment," or "Share." "Like" signifies that the reader likes the
posting while "Comment" enables him to post online his feelings or views about the same, such as
"This is great!" When a Facebook user "Shares" a posting, the original "posting" will appear on his
own Facebook profile, consequently making it visible to his down-line Facebook Friends.

Twitter, on the other hand, is an internet social networking and microblogging service that enables its
users to send and read short text-based messages of up to 140 characters. These are known as
"Tweets." Microblogging is the practice of posting small pieces of digital content—which could be in
the form of text, pictures, links, short videos, or other media—on the internet. Instead of friends, a
Twitter user has "Followers," those who subscribe to this particular user’s posts, enabling them to
read the same, and "Following," those whom this particular user is subscribed to, enabling him to
read their posts. Like Facebook, a Twitter user can make his tweets available only to his Followers,
or to the general public. If a post is available to the public, any Twitter user can "Retweet" a given
posting. Retweeting is just reposting or republishing another person’s tweet without the need of
copying and pasting it.

In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b)
the blog service provider like Yahoo; c) the internet service provider like PLDT, Smart, Globe, or
Sun; d) the internet café that may have provided the computer used for posting the blog; e) the
person who makes a favorable comment on the blog; and f) the person who posts a link to the blog
site.60 Now, suppose Maria (a blogger) maintains a blog on WordPress.com (blog service provider).
She needs the internet to access her blog so she subscribes to Sun Broadband (Internet Service
Provider).

One day, Maria posts on her internet account the statement that a certain married public official has
an illicit affair with a movie star. Linda, one of Maria’s friends who sees this post, comments online,
"Yes, this is so true! They are so immoral." Maria’s original post is then multiplied by her friends and
the latter’s friends, and down the line to friends of friends almost ad infinitum. Nena, who is a
stranger to both Maria and Linda, comes across this blog, finds it interesting and so shares the link
to this apparently defamatory blog on her Twitter account. Nena’s "Followers" then "Retweet" the link
to that blog site.

Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of Nena’s original tweet and
posts this on her Facebook account. Immediately, Pamela’s Facebook Friends start Liking and
making Comments on the assailed posting. A lot of them even press the Share button, resulting in
the further spread of the original posting into tens, hundreds, thousands, and greater postings.

The question is: are online postings such as "Liking" an openly defamatory statement, "Commenting"
on it, or "Sharing" it with others, to be regarded as "aiding or abetting?" In libel in the physical world,
if Nestor places on the office bulletin board a small poster that says, "Armand is a thief!," he could
certainly be charged with libel. If Roger, seeing the poster, writes on it, "I like this!," that could not be
libel since he did not author the poster. If Arthur, passing by and noticing the poster, writes on it,
"Correct!," would that be libel? No, for he merely expresses agreement with the statement on the
poster. He still is not its author. Besides, it is not clear if aiding or abetting libel in the physical world
is a crime.

But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site. Would a reader
and his Friends or Followers, availing themselves of any of the "Like," "Comment," and "Share"
reactions, be guilty of aiding or abetting libel? And, in the complex world of cyberspace expressions
of thoughts, when will one be liable for aiding or abetting cybercrimes? Where is the venue of the
crime?

Except for the original author of the assailed statement, the rest (those who pressed Like, Comment
and Share) are essentially knee-jerk sentiments of readers who may think little or haphazardly of
their response to the original posting. Will they be liable for aiding or abetting? And, considering the
inherent impossibility of joining hundreds or thousands of responding "Friends" or "Followers" in the
criminal charge to be filed in court, who will make a choice as to who should go to jail for the
outbreak of the challenged posting?
The old parameters for enforcing the traditional form of libel would be a square peg in a round hole
when applied to cyberspace libel. Unless the legislature crafts a cyber libel law that takes into
account its unique circumstances and culture, such law will tend to create a chilling effect on the
millions that use this new medium of communication in violation of their constitutionally-guaranteed
right to freedom of expression.

The United States Supreme Court faced the same issue in Reno v. American Civil Liberties
Union,61 a case involving the constitutionality of the Communications Decency Act of 1996. The law
prohibited (1) the knowing transmission, by means of a telecommunications device, of

"obscene or indecent" communications to any recipient under 18 years of age; and (2) the knowing
use of an interactive computer service to send to a specific person or persons under 18 years of age
or to display in a manner available to a person under 18 years of age communications that, in
context, depict or describe, in terms "patently offensive" as measured by contemporary community
standards, sexual or excretory activities or organs.

Those who challenged the Act claim that the law violated the First Amendment’s guarantee of
freedom of speech for being overbroad. The U.S. Supreme Court agreed and ruled:

The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. §223, is a matter
of special concern for two reasons. First, the CDA is a content-based regulation of speech. The
vagueness of such a regulation raises special U.S. Const. amend. I concerns because of its obvious
chilling effect on free speech. Second, the CDA is a criminal statute. In addition to the opprobrium
and stigma of a criminal conviction, the CDA threatens violators with penalties including up to two
years in prison for each act of violation. The severity of criminal sanctions may well cause speakers
to remain silent rather than communicate even arguably unlawful words, ideas, and images. As a
practical matter, this increased deterrent effect, coupled with the risk of discriminatory enforcement
of vague regulations, poses greater U.S. Const. amend. I concerns than those implicated by certain
civil regulations.

xxxx

The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223, presents a great threat of
censoring speech that, in fact, falls outside the statute's scope. Given the vague contours of the
coverage of the statute, it unquestionably silences some speakers whose messages would be
entitled to constitutional protection. That danger provides further reason for insisting that the statute
not be overly broad. The CDA’s burden on protected speech cannot be justified if it could be avoided
by a more carefully drafted statute. (Emphasis ours)

Libel in the cyberspace can of course stain a person’s image with just one click of the mouse.
Scurrilous statements can spread and travel fast across the globe like bad news. Moreover,
cyberlibel often goes hand in hand with cyberbullying that oppresses the victim, his relatives, and
friends, evoking from mild to disastrous reactions. Still, a governmental purpose, which seeks to
regulate the use of this cyberspace communication technology to protect a person’s reputation and
peace of mind, cannot adopt means that will unnecessarily and broadly sweep, invading the area of
protected freedoms.62

If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet
users will suppress otherwise robust discussion of public issues. Democracy will be threatened and
with it, all liberties. Penal laws should provide reasonably clear guidelines for law enforcement
officials and triers of facts to prevent arbitrary and discriminatory enforcement.63 The terms "aiding or
abetting" constitute broad sweep that generates chilling effect on those who express themselves
through cyberspace posts, comments, and other messages.64 Hence, Section 5 of the cybercrime
law that punishes "aiding or abetting" libel on the cyberspace is a nullity.

When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the
void-for-vagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully
delineated. As Justice Antonio T. Carpio explained in his dissent in Romualdez v. Commission on
Elections,65 "we must view these statements of the Court on the inapplicability of the overbreadth and
vagueness doctrines to penal statutes as appropriate only insofar as these doctrines are used to
mount ‘facial’ challenges to penal statutes not involving free speech."

In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise
any constitutional ground – absence of due process, lack of fair notice, lack of ascertainable
standards, overbreadth, or vagueness. Here, one can challenge the constitutionality of a statute only
if he asserts a violation of his own rights. It prohibits one from assailing the constitutionality of the
statute based solely on the violation of the rights of third persons not before the court. This rule is
also known as the prohibition against third-party standing.66

But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the
constitutionality of a statute even if he claims no violation of his own rights under the assailed statute
where it involves free speech on grounds of overbreadth or vagueness of the statute.

The rationale for this exception is to counter the "chilling effect" on protected speech that comes
from statutes violating free speech. A person who does not know whether his speech constitutes a
crime under an overbroad or vague law may simply restrain himself from speaking in order to avoid
being charged of a crime. The overbroad or vague law thus chills him into silence.67

As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is

inevitable that any government threat of punishment regarding certain uses of the medium creates a
chilling effect on the constitutionally-protected freedom of expression of the great masses that use it.
In this case, the particularly complex web of interaction on social media websites would give law
enforcers such latitude that they could arbitrarily or selectively enforce the law.

Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by
liking it? Netizens are not given "fair notice" or warning as to what is criminal conduct and what is
lawful conduct. When a case is filed, how will the court ascertain whether or not one netizen’s
comment aided and abetted a cybercrime while another comment did not?

Of course, if the "Comment" does not merely react to the original posting but creates an altogether
new defamatory story against Armand like "He beats his wife and children," then that should be
considered an original posting published on the internet. Both the penal code and the cybercrime law
clearly punish authors of defamatory publications. Make no mistake, libel destroys reputations that
society values. Allowed to cascade in the internet, it will destroy relationships and, under certain
circumstances, will generate enmity and tension between social or economic groups, races, or
religions, exacerbating existing tension in their relationships.

In regard to the crime that targets child pornography, when "Google procures, stores, and indexes
child pornography and facilitates the completion of transactions involving the dissemination of child
pornography," does this make Google and its users aiders and abettors in the commission of child
pornography crimes?68 Byars highlights a feature in the American law on child pornography that the
Cybercrimes law lacks—the exemption of a provider or notably a plain user of interactive computer
service from civil liability for child pornography as follows:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of
any information provided by another information content provider and cannot be held civilly liable for
any action voluntarily taken in good faith to restrict access to or availability of material that the
provider or user considers to be obscene...whether or not such material is constitutionally
protected.69

When a person replies to a Tweet containing child pornography, he effectively republishes it whether
wittingly or unwittingly. Does this make him a willing accomplice to the distribution of child
pornography? When a user downloads the Facebook mobile application, the user may give consent
to Facebook to access his contact details. In this way, certain information is forwarded to third
parties and unsolicited commercial communication could be disseminated on the basis of this
information.70 As the source of this information, is the user aiding the distribution of this
communication? The legislature needs to address this clearly to relieve users of annoying fear of
possible criminal prosecution.
Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on
the part of internet users because of its obvious chilling effect on the freedom of expression,
especially since the crime of aiding or abetting ensnares all the actors in the cyberspace front in a
fuzzy way. What is more, as the petitioners point out, formal crimes such as libel are not punishable
unless consummated.71 In the absence of legislation tracing the interaction of netizens and their level
of responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section
4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography,
cannot stand scrutiny.

But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be
permitted to apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception,
Section 4(a)(3) on Data Interference, Section 4(a)(4) on System Interference, Section 4(a)(5) on
Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related
Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity
Theft, and Section 4(c)(1) on Cybersex. None of these offenses borders on the exercise of the
freedom of expression.

The crime of willfully attempting to commit any of these offenses is for the same reason not
objectionable. A hacker may for instance have done all that is necessary to illegally access another
party’s computer system but the security employed by the system’s lawful owner could frustrate his
effort. Another hacker may have gained access to usernames and passwords of others but fail to
use these because the system supervisor is alerted.72 If Section 5 that punishes any person who
willfully attempts to commit this specific offense is not upheld, the owner of the username and
password could not file a complaint against him for attempted hacking. But this is not right. The
hacker should not be freed from liability simply because of the vigilance of a lawful owner or his
supervisor.

Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent.73 While
this may be true with respect to cybercrimes that tend to sneak past the area of free expression, any
attempt to commit the other acts specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3),
Section 4(a)(4), Section 4(a)(5), Section 4(a)(6), Section 4(b)(1), Section 4(b)(2), Section 4(b)(3),
and Section 4(c)(1) as well as the actors aiding and abetting the commission of such acts can be
identified with some reasonable certainty through adroit tracking of their works. Absent concrete
proof of the same, the innocent will of course be spared.

Section 6 of the Cybercrime Law

Section 6 provides:

Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws,
if committed by, through and with the use of information and communications technologies shall be
covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one
(1) degree higher than that provided for by the Revised Penal Code, as amended, and special laws,
as the case may be.

Section 6 merely makes commission of existing crimes through the internet a qualifying
circumstance. As the Solicitor General points out, there exists a substantial distinction between
crimes committed through the use of information and communications technology and similar crimes
committed using other means. In using the technology in question, the offender often evades
identification and is able to reach far more victims or cause greater harm. The distinction, therefore,
creates a basis for higher penalties for cybercrimes.

Section 7 of the Cybercrime Law

Section 7 provides:

Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any
liability for violation of any provision of the Revised Penal Code, as amended, or special laws.
The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set
of acts may be prosecuted and penalized simultaneously under two laws, a special law and the
Revised Penal Code. When two different laws define two crimes, prior jeopardy as to one does not
bar prosecution of the other although both offenses arise from the same fact, if each crime involves
some important act which is not an essential element of the other.74 With the exception of the crimes
of online libel and online child pornography, the Court would rather leave the determination of the
correct application of Section 7 to actual cases.

Online libel is different. There should be no question that if the published material on print, said to be
libelous, is again posted online or vice versa, that identical material cannot be the subject of two
separate libels. The two offenses, one a violation of Article 353 of the Revised Penal Code and the
other a violation of Section 4(c)(4) of R.A. 10175 involve essentially the same elements and are in
fact one and the same offense. Indeed, the OSG itself claims that online libel under Section 4(c)(4)
is not a new crime but is one already punished under Article 353. Section 4(c)(4) merely establishes
the computer system as another means of publication.75 Charging the offender under both laws
would be a blatant violation of the proscription against double jeopardy.76

The same is true with child pornography committed online. Section 4(c)(2) merely expands the
ACPA’s scope so as to include identical activities in cyberspace. As previously discussed, ACPA’s
definition of child pornography in fact already covers the use of "electronic, mechanical, digital,
optical, magnetic or any other means." Thus, charging the offender under both Section 4(c)(2) and
ACPA would likewise be tantamount to a violation of the constitutional prohibition against double
jeopardy.

Section 8 of the Cybercrime Law

Section 8 provides:

Sec. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated in Sections
4(a) and 4(b) of this Act shall be punished with imprisonment of prision mayor or a fine of at least
Two hundred thousand pesos (PhP200,000.00) up to a maximum amount commensurate to the
damage incurred or both.

Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with
imprisonment of prision mayor or a fine of not more than Five hundred thousand pesos
(PhP500,000.00) or both.

If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of
reclusion temporal or a fine of at least Five hundred thousand pesos (PhP500,000.00) up to
maximum amount commensurate to the damage incurred or both, shall be imposed.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall
be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(PhP200,000.00) but not exceeding One million pesos (PhP1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall
be punished with the penalties as enumerated in Republic Act No. 9775 or the "Anti-Child
Pornography Act of 2009:" Provided, That the penalty to be imposed shall be one (1) degree higher
than that provided for in Republic Act No. 9775, if committed through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be
punished with imprisonment of arresto mayor or a fine of at least Fifty thousand pesos
(PhP50,000.00) but not exceeding Two hundred fifty thousand pesos (PhP250,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished
with imprisonment one (1) degree lower than that of the prescribed penalty for the offense or a fine
of at least One hundred thousand pesos (PhP100,000.00) but not exceeding Five hundred thousand
pesos (PhP500,000.00) or both.
Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses Against the
Confidentiality, Integrity and Availability of Computer Data and Systems; 4(b) on Computer-related
Offenses; 4(a)(5) on Misuse of Devices; when the crime punishable under 4(a) is committed against
critical infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited
Commercial Communications; and Section 5 on Aiding or Abetting, and Attempt in the Commission
of Cybercrime.

The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here
the legislature prescribed a measure of severe penalties for what it regards as deleterious
cybercrimes. They appear proportionate to the evil sought to be punished. The power to determine
penalties for offenses is not diluted or improperly wielded simply because at some prior time the act
or omission was but an element of another offense or might just have been connected with another
crime.77 Judges and magistrates can only interpret and apply them and have no authority to modify or
revise their range as determined by the legislative department.

The courts should not encroach on this prerogative of the lawmaking body.78

Section 12 of the Cybercrime Law

Section 12 provides:

Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall
be authorized to collect or record by technical or electronic means traffic data in real-time associated
with specified communications transmitted by means of a computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or
type of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection
or recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon written application
and the examination under oath or affirmation of the applicant and the witnesses he may produce
and the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated
hereinabove has been committed, or is being committed, or is about to be committed; (2) that there
are reasonable grounds to believe that evidence that will be obtained is essential to the conviction of
any person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are
no other means readily available for obtaining such evidence.

Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data
in real time as tending to curtail civil liberties or provide opportunities for official abuse. They claim
that data showing where digital messages come from, what kind they are, and where they are
destined need not be incriminating to their senders or recipients before they are to be protected.
Petitioners invoke the right of every individual to privacy and to be protected from government
snooping into the messages or information that they send to one another.

The first question is whether or not Section 12 has a proper governmental purpose since a law may
require the disclosure of matters normally considered private but then only upon showing that such
requirement has a rational relation to the purpose of the law,79 that there is a compelling State
interest behind the law, and that the provision itself is narrowly drawn.80 In assessing regulations
affecting privacy rights, courts should balance the legitimate concerns of the State against
constitutional guarantees.81

Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need
to put order to the tremendous activities in cyberspace for public good.82 To do this, it is within the
realm of reason that the government should be able to monitor traffic data to enhance its ability to
combat all sorts of cybercrimes.

Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to
provide law enforcement authorities with the power they need for spotting, preventing, and
investigating crimes committed in cyberspace. Crime-fighting is a state business. Indeed, as Chief
Justice Sereno points out, the Budapest Convention on Cybercrimes requires signatory countries to
adopt legislative measures to empower state authorities to collect or record "traffic data, in real time,
associated with specified communications."83 And this is precisely what Section 12 does. It
empowers law enforcement agencies in this country to collect or record such data.

But is not evidence of yesterday’s traffic data, like the scene of the crime after it has been
committed, adequate for fighting cybercrimes and, therefore, real-time data is superfluous for that
purpose? Evidently, it is not. Those who commit the crimes of accessing a computer system without
right,84 transmitting viruses,85 lasciviously exhibiting sexual organs or sexual activity for favor or
consideration;86 and producing child pornography87 could easily evade detection and prosecution by
simply moving the physical location of their computers or laptops from day to day. In this digital age,
the wicked can commit cybercrimes from virtually anywhere: from internet cafés, from kindred places
that provide free internet services, and from unregistered mobile internet connectors. Criminals using
cellphones under pre-paid arrangements and with unregistered SIM cards do not have listed
addresses and can neither be located nor identified. There are many ways the cyber criminals can
quickly erase their tracks. Those who peddle child pornography could use relays of computers to
mislead law enforcement authorities regarding their places of operations. Evidently, it is only real-
time traffic data collection or recording and a subsequent recourse to court-issued search and
seizure warrant that can succeed in ferreting them out.

Petitioners of course point out that the provisions of Section 12 are too broad and do not provide
ample safeguards against crossing legal boundaries and invading the people’s right to privacy. The
concern is understandable. Indeed, the Court recognizes in Morfe v. Mutuc88 that certain
constitutional guarantees work together to create zones of privacy wherein governmental powers
may not intrude, and that there exists an independent constitutional right of privacy. Such right to be
left alone has been regarded as the beginning of all freedoms.89

But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme Court classified
privacy into two categories: decisional privacy and informational privacy. Decisional privacy involves
the right to independence in making certain important decisions, while informational privacy refers to
the interest in avoiding disclosure of personal matters. It is the latter right—the right to informational
privacy—that those who oppose government collection or recording of traffic data in real-time seek
to protect.

Informational privacy has two aspects: the right not to have private information disclosed, and the
right to live freely without surveillance and intrusion.91 In determining whether or not a matter is
entitled to the right to privacy, this Court has laid down a two-fold test. The first is a subjective test,
where one claiming the right must have an actual or legitimate expectation of privacy over a certain
matter. The second is an objective test, where his or her expectation of privacy must be one society
is prepared to accept as objectively reasonable.92

Since the validity of the cybercrime law is being challenged, not in relation to its application to a
particular person or group, petitioners’ challenge to Section 12 applies to all information and
communications technology (ICT) users, meaning the large segment of the population who use all
sorts of electronic devices to communicate with one another. Consequently, the expectation of
privacy is to be measured from the general public’s point of view. Without reasonable expectation of
privacy, the right to it would have no basis in fact.

As the Solicitor General points out, an ordinary ICT user who courses his communication through a
service provider, must of necessity disclose to the latter, a third person, the traffic data needed for
connecting him to the recipient ICT user. For example, an ICT user who writes a text message
intended for another ICT user must furnish his service provider with his cellphone number and the
cellphone number of his recipient, accompanying the message sent. It is this information that creates
the traffic data. Transmitting communications is akin to putting a letter in an envelope properly
addressed, sealing it closed, and sending it through the postal service. Those who post letters have
no expectations that no one will read the information appearing outside the envelope.

Computer data—messages of all kinds—travel across the internet in packets and in a way that may
be likened to parcels of letters or things that are sent through the posts. When data is sent from any
one source, the content is broken up into packets and around each of these packets is a wrapper or
header. This header contains the traffic data: information that tells computers where the packet
originated, what kind of data is in the packet (SMS, voice call, video, internet chat messages, email,
online browsing data, etc.), where the packet is going, and how the packet fits together with other
packets.93 The difference is that traffic data sent through the internet at times across the ocean do
not disclose the actual names and addresses (residential or office) of the sender and the recipient,
only their coded internet protocol (IP) addresses. The packets travel from one computer system to
another where their contents are pieced back together.

Section 12 does not permit law enforcement authorities to look into the contents of the messages
and uncover the identities of the sender and the recipient.

For example, when one calls to speak to another through his cellphone, the service provider’s
communication’s system will put his voice message into packets and send them to the other
person’s cellphone where they are refitted together and heard. The latter’s spoken reply is sent to
the caller in the same way. To be connected by the service provider, the sender reveals his
cellphone number to the service provider when he puts his call through. He also reveals the
cellphone number to the person he calls. The other ways of communicating electronically follow the
same basic pattern.

In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court reasoned
that telephone users in the ‘70s must realize that they necessarily convey phone numbers to the
telephone company in order to complete a call. That Court ruled that even if there is an expectation
that phone numbers one dials should remain private, such expectation is not one that society is
prepared to recognize as reasonable.

In much the same way, ICT users must know that they cannot communicate or exchange data with
one another over cyberspace except through some service providers to whom they must submit
certain traffic data that are needed for a successful cyberspace communication. The conveyance of
this data takes them out of the private sphere, making the expectation to privacy in regard to them
an expectation that society is not prepared to recognize as reasonable.

The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of
traffic data are gathered in bulk, pooled together, and analyzed, they reveal patterns of activities
which can then be used to create profiles of the persons under surveillance. With enough traffic
data, analysts may be able to determine a person’s close associations, religious views, political
affiliations, even sexual preferences. Such information is likely beyond what the public may expect to
be disclosed, and clearly falls within matters protected by the right to privacy. But has the procedure
that Section 12 of the law provides been drawn narrowly enough to protect individual rights?

Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical
or electronic means traffic data in real-time. Petitioners point out that the phrase "due cause" has no
precedent in law or jurisprudence and that whether there is due cause or not is left to the discretion
of the police. Replying to this, the Solicitor General asserts that Congress is not required to define
the meaning of every word it uses in drafting the law.

Indeed, courts are able to save vague provisions of law through statutory construction. But the
cybercrime law, dealing with a novel situation, fails to hint at the meaning it intends for the phrase
"due cause." The Solicitor General suggests that "due cause" should mean "just reason or motive"
and "adherence to a lawful procedure." But the Court cannot draw this meaning since Section 12
does not even bother to relate the collection of data to the probable commission of a particular
crime. It just says, "with due cause," thus justifying a general gathering of data. It is akin to the use of
a general search warrant that the Constitution prohibits.
Due cause is also not descriptive of the purpose for which data collection will be used. Will the law
enforcement agencies use the traffic data to identify the perpetrator of a cyber attack? Or will it be
used to build up a case against an identified suspect? Can the data be used to prevent cybercrimes
from happening?

The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint.
While it says that traffic data collection should not disclose identities or content data, such restraint is
but an illusion. Admittedly, nothing can prevent law enforcement agencies holding these data in their
hands from looking into the identity of their sender or receiver and what the data contains. This will
unnecessarily expose the citizenry to leaked information or, worse, to extortion from certain bad
elements in these agencies.

Section 12, of course, limits the collection of traffic data to those "associated with specified
communications." But this supposed limitation is no limitation at all since, evidently, it is the law
enforcement agencies that would specify the target communications. The power is virtually limitless,
enabling law enforcement authorities to engage in "fishing expedition," choosing whatever specified
communication they want. This evidently threatens the right of individuals to privacy.

The Solicitor General points out that Section 12 needs to authorize collection of traffic data "in real
time" because it is not possible to get a court warrant that would authorize the search of what is akin
to a "moving vehicle." But warrantless search is associated with a police officer’s determination of
probable cause that a crime has been committed, that there is no opportunity for getting a warrant,
and that unless the search is immediately carried out, the thing to be searched stands to be
removed. These preconditions are not provided in Section 12.

The Solicitor General is honest enough to admit that Section 12 provides minimal protection to
internet users and that the procedure envisioned by the law could be better served by providing for
more robust safeguards. His bare assurance that law enforcement authorities will not abuse the
provisions of Section 12 is of course not enough. The grant of the power to track cyberspace
communications in real time and determine their sources and destinations must be narrowly drawn
to preclude abuses.95

Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-
vagueness doctrine and the overbreadth doctrine. These doctrines however, have been consistently
held by this Court to apply only to free speech cases. But Section 12 on its own neither regulates nor
punishes any type of speech. Therefore, such analysis is unnecessary.

This Court is mindful that advances in technology allow the government and kindred institutions to
monitor individuals and place them under surveillance in ways that have previously been impractical
or even impossible. "All the forces of a technological age x x x operate to narrow the area of privacy
and facilitate intrusions into it. In modern terms, the capacity to maintain and support this enclave of
private life marks the difference between a democratic and a totalitarian society."96 The Court must
ensure that laws seeking to take advantage of these technologies be written with specificity and
definiteness as to ensure respect for the rights that the Constitution guarantees.

Section 13 of the Cybercrime Law

Section 13 provides:

Sec. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber information
relating to communication services provided by a service provider shall be preserved for a minimum
period of six (6) months from the date of the transaction. Content data shall be similarly preserved
for six (6) months from the date of receipt of the order from law enforcement authorities requiring its
preservation.

Law enforcement authorities may order a one-time extension for another six (6) months: Provided,
That once computer data preserved, transmitted or stored by a service provider is used as evidence
in a case, the mere furnishing to such service provider of the transmittal document to the Office of
the Prosecutor shall be deemed a notification to preserve the computer data until the termination of
the case.

The service provider ordered to preserve computer data shall keep confidential the order and its
compliance.

Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of the right to
property. They liken the data preservation order that law enforcement authorities are to issue as a
form of garnishment of personal property in civil forfeiture proceedings. Such order prevents internet
users from accessing and disposing of traffic data that essentially belong to them.

No doubt, the contents of materials sent or received through the internet belong to their authors or
recipients and are to be considered private communications. But it is not clear that a service provider
has an obligation to indefinitely keep a copy of the same as they pass its system for the benefit of
users. By virtue of Section 13, however, the law now requires service providers to keep traffic data
and subscriber information relating to communication services for at least six months from the date
of the transaction and those relating to content data for at least six months from receipt of the order
for their preservation.

Actually, the user ought to have kept a copy of that data when it crossed his computer if he was so
minded. The service provider has never assumed responsibility for their loss or deletion while in its
keep.

At any rate, as the Solicitor General correctly points out, the data that service providers preserve on
orders of law enforcement authorities are not made inaccessible to users by reason of the issuance
of such orders. The process of preserving data will not unduly hamper the normal transmission or
use of the same.

Section 14 of the Cybercrime Law

Section 14 provides:

Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a court
warrant, shall issue an order requiring any person or service provider to disclose or submit
subscriber’s information, traffic data or relevant data in his/its possession or control within seventy-
two (72) hours from receipt of the order in relation to a valid complaint officially docketed and
assigned for investigation and the disclosure is necessary and relevant for the purpose of
investigation.

The process envisioned in Section 14 is being likened to the issuance of a subpoena. Petitioners’
objection is that the issuance of subpoenas is a judicial function. But it is well-settled that the power
to issue subpoenas is not exclusively a judicial function. Executive agencies have the power to issue
subpoena as an adjunct of their investigatory powers.98

Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a
function usually lodged in the hands of law enforcers to enable them to carry out their executive
functions. The prescribed procedure for disclosure would not constitute an unlawful search or
seizure nor would it violate the privacy of communications and correspondence. Disclosure can be
made only after judicial intervention.

Section 15 of the Cybercrime Law

Section 15 provides:

Sec. 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure
warrant is properly issued, the law enforcement authorities shall likewise have the following powers
and duties.
Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:

(a) To secure a computer system or a computer data storage medium;

(b) To make and retain a copy of those computer data secured;

(c) To maintain the integrity of the relevant stored computer data;

(d) To conduct forensic analysis or examination of the computer data storage medium; and

(e) To render inaccessible or remove those computer data in the accessed computer or
computer and communications network.

Pursuant thereof, the law enforcement authorities may order any person who has knowledge about
the functioning of the computer system and the measures to protect and preserve the computer data
therein to provide, as is reasonable, the necessary information, to enable the undertaking of the
search, seizure and examination.

Law enforcement authorities may request for an extension of time to complete the examination of
the computer data storage medium and to make a return thereon but in no case for a period longer
than thirty (30) days from date of approval by the court.

Petitioners challenge Section 15 on the assumption that it will supplant established search and
seizure procedures. On its face, however, Section 15 merely enumerates the duties of law
enforcement authorities that would ensure the proper collection, preservation, and use of computer
system or data that have been seized by virtue of a court warrant. The exercise of these duties do
not pose any threat on the rights of the person from whom they were taken. Section 15 does not
appear to supersede existing search and seizure rules but merely supplements them.

Section 17 of the Cybercrime Law

Section 17 provides:

Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in Sections 13
and 15, service providers and law enforcement authorities, as the case may be, shall immediately
and completely destroy the computer data subject of a preservation and examination.

Section 17 would have the computer data, previous subject of preservation or examination,
destroyed or deleted upon the lapse of the prescribed period. The Solicitor General justifies this as
necessary to clear up the service provider’s storage systems and prevent overload. It would also
ensure that investigations are quickly concluded.

Petitioners claim that such destruction of computer data subject of previous preservation or
examination violates the user’s right against deprivation of property without due process of law. But,
as already stated, it is unclear that the user has a demandable right to require the service provider to
have that copy of the data saved indefinitely for him in its storage system. If he wanted them
preserved, he should have saved them in his computer when he generated the data or received it.
He could also request the service provider for a copy before it is deleted.

Section 19 of the Cybercrime Law

Section 19 empowers the Department of Justice to restrict or block access to computer data:

Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer data is prima facie
found to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block
access to such computer data.
Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against
unreasonable searches and seizures. The Solicitor General concedes that this provision may be
unconstitutional. But since laws enjoy a presumption of constitutionality, the Court must satisfy itself
that Section 19 indeed violates the freedom and right mentioned.

Computer data99 may refer to entire programs or lines of code, including malware, as well as files that
contain texts, images, audio, or video recordings. Without having to go into a lengthy discussion of
property rights in the digital space, it is indisputable that computer data, produced or created by their
writers or authors may constitute personal property. Consequently, they are protected from
unreasonable searches and seizures, whether while stored in their personal computers or in the
service provider’s systems.

Section 2, Article III of the 1987 Constitution provides that the right to be secure in one’s papers and
effects against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable. Further, it states that no search warrant shall issue except upon probable cause to be
determined personally by the judge. Here, the Government, in effect, seizes and places the
computer data under its control and disposition without a warrant. The Department of Justice order
cannot substitute for judicial search warrant.

The content of the computer data can also constitute speech. In such a case, Section 19 operates
as a restriction on the freedom of expression over cyberspace. Certainly not all forms of speech are
protected. Legislature may, within constitutional bounds, declare certain kinds of expression as
illegal. But for an executive officer to seize content alleged to be unprotected without any judicial
warrant, it is not enough for him to be of the opinion that such content violates some law, for to do so
would make him judge, jury, and executioner all rolled into one.100

Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential
guidelines established to determine the validity of restrictions on speech. Restraints on free speech
are generally evaluated on one of or a combination of three tests: the dangerous tendency doctrine,
the balancing of interest test, and the clear and present danger rule.101 Section 19, however, merely
requires that the data to be blocked be found prima facie in violation of any provision of the
cybercrime law. Taking Section 6 into consideration, this can actually be made to apply in relation to
any penal provision. It does not take into consideration any of the three tests mentioned above.

The Court is therefore compelled to strike down Section 19 for being violative of the constitutional
guarantees to freedom of expression and against unreasonable searches and seizures.

Section 20 of the Cybercrime Law

Section 20 provides:

Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof specifically
the orders from law enforcement authorities shall be punished as a violation of Presidential Decree
No. 1829 with imprisonment of prision correctional in its maximum period or a fine of One hundred
thousand pesos (Php100,000.00) or both, for each and every noncompliance with an order issued
by law enforcement authorities.

Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere
failure to comply constitutes a legislative finding of guilt, without regard to situations where non-
compliance would be reasonable or valid.

But since the non-compliance would be punished as a violation of Presidential Decree (P.D.)
1829,102 Section 20 necessarily incorporates elements of the offense which are defined therein. If
Congress had intended for Section 20 to constitute an offense in and of itself, it would not have had
to make reference to any other statue or provision.

P.D. 1829 states:

Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to
6,000 pesos, or both, shall be imposed upon any person who knowingly or willfully obstructs,
impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of
criminal cases by committing any of the following acts:

x x x.

Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or willfully."
There must still be a judicial determination of guilt, during which, as the Solicitor General assumes,
defense and justifications for non-compliance may be raised. Thus, Section 20 is valid insofar as it
applies to the provisions of Chapter IV which are not struck down by the Court.

Sections 24 and 26(a) of the Cybercrime Law

Sections 24 and 26(a) provide:

Sec. 24. Cybercrime Investigation and Coordinating Center.– There is hereby created, within thirty
(30) days from the effectivity of this Act, an inter-agency body to be known as the Cybercrime
Investigation and Coordinating Center (CICC), under the administrative supervision of the Office of
the President, for policy coordination among concerned agencies and for the formulation and
enforcement of the national cybersecurity plan.

Sec. 26. Powers and Functions.– The CICC shall have the following powers and functions:

(a) To formulate a national cybersecurity plan and extend immediate assistance of real time
commission of cybercrime offenses through a computer emergency response team (CERT); x x x.

Petitioners mainly contend that Congress invalidly delegated its power when it gave the Cybercrime
Investigation and Coordinating Center (CICC) the power to formulate a national cybersecurity plan
without any sufficient standards or parameters for it to follow.

In order to determine whether there is undue delegation of legislative power, the Court has adopted
two tests: the completeness test and the sufficient standard test. Under the first test, the law must be
complete in all its terms and conditions when it leaves the legislature such that when it reaches the
delegate, the only thing he will have to do is to enforce it. The second test mandates adequate
1av vphi1

guidelines or limitations in the law to determine the boundaries of the delegate’s authority and
prevent the delegation from running riot.103

Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement
a national cybersecurity plan. Also, contrary to the position of the petitioners, the law gave sufficient
standards for the CICC to follow when it provided a definition of cybersecurity.

Cybersecurity refers to the collection of tools, policies, risk management approaches, actions,
training, best practices, assurance and technologies that can be used to protect cyber environment
and organization and user’s assets.104 This definition serves as the parameters within which CICC
should work in formulating the cybersecurity plan.

Further, the formulation of the cybersecurity plan is consistent with the policy of the law to "prevent
and combat such [cyber] offenses by facilitating their detection, investigation, and prosecution at
both the domestic and international levels, and by providing arrangements for fast and reliable
international cooperation."105 This policy is clearly adopted in the interest of law and order, which has
been considered as sufficient standard.106 Hence, Sections 24 and 26(a) are likewise valid.

WHEREFORE, the Court DECLARES:

1. VOID for being UNCONSTITUTIONAL:

 a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited
commercial communications;

b. Section 12 that authorizes the collection or recording of traffic data in real-time;

and

c. Section 19 of the same Act that authorizes the Department of Justice to restrict or
block access to suspected Computer Data.

2. VALID and CONSTITUTIONAL:

a. Section 4(a)(1) that penalizes accessing a computer system without right;

b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;

c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the
internet in bad faith to the prejudice of others;

d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying
information belonging to another;

e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual

organs or sexual activity for favor or consideration;

f. Section 4(c)(2) that penalizes the production of child pornography;

g. Section 6 that imposes penalties one degree higher when crimes defined under
the Revised Penal Code are committed with the use of information and
communications technologies;

h. Section 8 that prescribes the penalties for cybercrimes;

i. Section 13 that permits law enforcement authorities to require service providers to

preserve traffic data and subscriber information as well as specified content data for
six months;

j. Section 14 that authorizes the disclosure of computer data under a court-issued

warrant;

k. Section 15 that authorizes the search, seizure, and examination of computer data
under a court-issued warrant;

l. Section 17 that authorizes the destruction of previously preserved computer data

after the expiration of the prescribed holding periods;

m. Section 20 that penalizes obstruction of justice in relation to cybercrime

investigations;

n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center

(CICC);

o. Section 26(a) that defines the CICC’s Powers and Functions; and

p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.

Further, the Court DECLARES:

 1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect
to the original author of the post; but VOID and UNCONSTITUTIONAL with respect to others
who simply receive the post and react to it; and

2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes
as VA L I D and CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal Access,
Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4)
on System

Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section

4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on
Computer-related Identity Theft, and Section 4(c)(1) on Cybersex; but VOID and
UNCONSTITUTIONAL with respect to Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited
Commercial Communications, and 4(c)(4) on online Libel. 1âwphi1

Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section
7 that authorizes prosecution of the offender under both the Revised Penal Code and Republic Act
10175 to actual cases, WITH THE EXCEPTION of the crimes of:

1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act
10175 and Article 353 of the Revised Penal Code constitutes a violation of the proscription
against double jeopardy; as well as

2. Child pornography committed online as to which, charging the offender under both Section
4(c)(2) of Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of
2009 also constitutes a violation of the same proscription, and, in respect to these, is VOID
and UNCONSTITUTIONAL.

SO ORDERED.

ROBERTO A. ABAD
Associate Justice

WE CONCUR:

See Concurring & Dissenting Opinion

MARIA LOURDES P. A. SERENO
Chief Justice

See Concurring & Dissenting Opinion (no part due to prior case)
ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.*
Associate Justice Associate Justice

See Separate Concurring Opinion

TERESITA J. LEONARDO-DE CASTRO
ARTURO D. BRION
Associate Justice
Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

I join Justice Brion in all his positions

JOSE PORTUGAL PEREZ
JOSE CATRAL MENDOZA
Associate Justice
Associate Justice
 No Part
BIENVENIDO L. REYES
ESTELA M. PERLAS-BERNABE*
Associate Justice
Associate Justice

See separate dissenting and concurring opinion

MARVIC MARIO VICTOR F. LEONEN
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in
the above Decision had been reached in consultation before the case was assigned to the writer of
the opinion of the Court.

MARIA LOURDES P.A. SERENO

Chief Justice
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 152259 July 29, 2004

ALFREDO T. ROMUALDEZ, petitioner,

vs.
THE HONORABLE SANDIGANBAYAN (Fifth Division) and the PEOPLE of the
PHILIPPINES, respondents.

DECISION

PANGANIBAN, J.:

Repetitive motions to invalidate or summarily terminate a criminal indictment prior to plea and trial,
however they may be named or identified -- whether as a motion to quash or motion to dismiss or by
any other nomenclature -- delay the administration of justice and unduly burden the court system.
Grounds not included in the first of such repetitive motions are generally deemed waived and can no
longer be used as bases of similar motions subsequently filed.

Section 5 of the Anti-Graft Law is constitutional. It penalizes certain presidential relatives who
"intervene, directly or indirectly, in any business, transaction, contract or application with the
Government." This provision is not vague or "impermissibly broad," because it can easily be
understood with the use of simple statutory construction. Neither may the constitutionality of a
criminal statute such as this be challenged on the basis of the "overbreadth" and the "void-for-
vagueness" doctrines, which apply only to free-speech cases.

The Case

Before us is a Petition for Certiorari1 under Rule 65 of the Rules of Court, seeking to set aside the
November 20, 20012 and the March 1, 20023 Resolutions of the Sandiganbayan in Criminal Case
No. 13736. The first Resolution disposed thus:

"WHEREFORE, for lack of merit, the Motion to Dismiss is hereby DENIED. The arraignment
of the accused and the pre-trial of the case shall proceed as scheduled."4

The second Resolution denied reconsideration.

The Facts

The facts of the case are narrated by the Sandiganbayan as follows:

"[The People of the Philippines], through the Presidential Commission on Good Government
(PCGG), filed on July 12, 1989 an information before [the anti-graft court] charging the
accused [with] violation of Section 5, Republic Act No. 3019,5 as amended. The Information
reads:
 'That on or about and during the period from July 16, 1975 to July 29, 1975, in Metro
Manila, Philippines, and within the jurisdiction of [the Sandiganbayan], said
[petitioner], brother-in-law of Ferdinand E. Marcos, former President of the
Philippines, and therefore, related to the latter by affinity within the third civil degree,
did then and there wil[l]fully and unlawfully, and with evident bad faith, for the
purpose of promoting his self-interested [sic] and/or that of others, intervene directly
or indirectly, in a contract between the National Shipyard and Steel Corporation
(NASSCO), a government-owned and controlled corporation and the Bataan
Shipyard and Engineering Company (BASECO), a private corporation, the majority
stocks of which is owned by former President Ferdinand E. Marcos, whereby the
NASSCO sold, transferred and conveyed to the BASECO its ownership and all its
titles and interests over all equipment and facilities including structures, buildings,
shops, quarters, houses, plants and expendable and semi-expendable assets,
located at the Engineer Island known as the Engineer Island Shops including some
of its equipment and machineries from Jose Panganiban, Camarines Norte needed
by BASECO in its shipbuilding and ship repair program for the amount
of P5,000,000.00.

'Contrary to law.'

"On December 27, 1996, the accused filed his first 'MOTION TO DISMISS AND TO DEFER
ARRAIGNMENT' claiming that no valid preliminary investigation was conducted in the instant
case. He asserts that if a preliminary investigation could be said to have been conducted, the
same was null and void having been undertaken by a biased and partial investigative body.

"On January 9, 1997, [the Sandiganbayan], through the First Division, issued an order giving
the accused fifteen days to file a Motion for Reinvestigation with the Office of the Special
Prosecutor.

"[Petitioner] questioned said order before the Supreme Court via a petition for Certiorari and
Prohibition with prayer for temporary restraining order. On January 21, 1998, the Supreme
Court dismissed the petition for failure to show that [the Sandiganbayan] committed grave
abuse of discretion in issuing the assailed order.

"On November 9, 1998, the [petitioner] filed with the Office of the Special Prosecutor a
Motion to Quash.

"On September 22, 1999, x x x Special Prosecution Officer (SPO) III Victorio U. Tabanguil,
manifested that the prosecution had already concluded the reinvestigation of the case. He
recommended the dismissal of the instant case. Both the Deputy Special Prosecutor and the
Special Prosecutor approved the recommendation. However, Ombudsman Aniano A.
Desierto disagreed and directed the prosecutors to let the [petitioner] present his evidence in
Court.

"Subsequently, [petitioner] filed on October 8, 1999 his second 'MOTION TO QUASH AND
TO DEFER ARRAIGNMENT'.

"On February 9, 2000, the [Sandiganbayan] denied the motion for lack of merit.

"On June 19, 2001, [the] accused filed a 'MOTION FOR LEAVE TO FILE MOTION TO
DISMISS'. On June 29, 2001, the [Sandiganbayan] admitted the motion and admitted the
attached (third) Motion to Dismiss.

"The [Motion to Dismiss] raise[d] the following grounds:

'I. THE CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW OF [PETITIONER]

WAS VIOLATED DURING THE PRELIMINARY INVESTIGATION STAGE IN THE
FOLLOWING WAYS:
 'A. NO VALID PRELIMINARY INVESTIGATION WAS CONDUCTED IN THE
INSTANT CASE; AND

'B. THE PRELIMINARY INVESTIGATION WAS CONDUCTED BY A BIASED AND

PARTIAL INVESTIGATOR

'II. THE CONSTITUTIONAL RIGHT OF [PETITIONER] TO BE INFORMED OF THE

NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM WAS VIOLATED

'III. PURSUANT TO ARTICLE VII, SECTION 17 OF THE 1973 CONSTITUTION,

[PETITIONER] IS IMMUNE FROM CRIMINAL PROSECUTION

'IV. THE CRIMINAL ACTION OR LIABILITY HAS BEEN EXTINGUISHED BY

PRESCRIPTION'"6

Ruling of the Sandiganbayan

The Sandiganbayan explained that all the grounds invoked by petitioner, except the third one, had
already been raised by him and passed upon in its previous Resolutions.7 In resolving the third
ground, the anti-graft court pointed out that Section 17 of the 1973 Constitution became effective
only in 1981 when the basic law was amended. Since his alleged illegal intervention had been
committed on or about 1975, the amended provision was inapplicable to him.8

In denying the Motion for Reconsideration filed by petitioner, the Sandiganbayan passed upon the
other grounds he had raised. It ruled that his right to a preliminary investigation was not violated,
because he had been granted a reinvestigation.9 It further held that his right to be informed of the
nature and cause of the accusation was not trampled upon, either, inasmuch as the Information had
set forth the essential elements of the offense charged.10

Hence, this Petition.11

The Issues

In his Memorandum, petitioner assigns the following errors for our consideration:

"Whether or not the Honorable Sandiganbayan erred and gravely abused its discretion
amounting to lack of, or in excess of jurisdiction –

I. In not dismissing and/or quashing Criminal Case No. 13736 despite clear and
incontrovertible evidence that:

A. Section 5 of Republic Act No. 3019 is unconstitutional because its vagueness

violates the due process right of an individual to be informed of the nature and the
cause of the accusation against him;

B. Section 5 of Republic Act No. 3019 is unconstitutional because it violates the due
process right of an individual to be presumed innocent until the contrary is proved;

C. The constitutional right of petitioner x x x to be informed of the nature and the

cause of the accusation against him was violated;

D. The constitutional right to due process of law of petitioner x x x was violated

during the preliminary investigation stage in the following ways:

[i] No valid preliminary investigation was con-ducted for Criminal Case No.
13736; and
 [ii] The preliminary investigation was conducted by a biased and partial
investigator.

E. The criminal action or liability has been extinguished by prescription; and

F. Pursuant to Article VII, Section 17 of the 1973 Constitution, petitioner x x x is

immune from criminal prosecution.

And

II. In light of the foregoing, in denying petitioner['s] x x x right to equal protection of the
laws."12

Simply stated, the issues are as follows: (1) whether Section 5 of Republic Act 3019 is
unconstitutional; (2) whether the Information is vague; (3) whether there was a valid preliminary
investigation; (4) whether the criminal action or liability has been extinguished by prescription; and
(5) whether petitioner is immune from criminal prosecution under then Section 17 of Article VII of the
1973 Constitution.

The Court's Ruling

The Petition has no merit.

First Issue:
Constitutionality of Section 5,
Republic Act 3019

Petitioner challenged the constitutionality of Section 5 of RA 3019 for the first time in the
Sandiganbayan through a Supplemental Motion to Dismiss. Attached to his December 7, 2001
Motion for Reconsideration of the Order denying his Motion to Dismiss was this Supplemental
Motion which was, in effect, his third motion to quash.13 We note that the Petition for Certiorari before
us challenges the denial of his original, not his Supplemental, Motion to Dismiss.

Upon the denial of his original Motion to Quash on February 9, 2000, petitioner could have filed a
motion for reconsideration of the denial. Had reconsideration been turned down, the next proper
remedy would have been either (1) a petition for certiorari14 -- if there was grave abuse of discretion -
- which should be filed within 60 days from notice of the assailed order;15 or (2) to proceed to trial
without prejudice to his right, if final judgment is rendered against him, to raise the same questions
before the proper appellate court.16 But instead of availing himself of these remedies, he filed a
"Motion to Dismiss" on June 19, 2001.

Impropriety of
Repetitive Motions

There is no substantial distinction between a "motion to quash" and a "motion to dismiss." Both pray
for an identical relief, which is the dismissal of the case. Such motions are employed to raise
preliminary objections, so as to avoid the necessity of proceeding to trial. A motion to quash is
generally used in criminal proceedings to annul a defective indictment. A motion to dismiss, the
nomenclature ordinarily used in civil proceedings, is aimed at summarily defeating a complaint.
Thus, our Rules of Court use the term "motion to quash" in criminal,17 and "motion to dismiss" in civil,
proceedings.18

In the present case, however, both the "Motion to Quash" and the "Motion to Dismiss" are anchored
on basically the same grounds and pray for the same relief. The hairsplitting distinction posited by
petitioner does not really make a difference.

By filing a Motion to Dismiss, petitioner submitted in effect a prohibited second motion to quash. A
party is not permitted to raise issues, whether similar or different, by installment. The Rules abhor
repetitive motions. Otherwise, there would be no end to preliminary objections, and trial would never
commence. A second motion to quash delays the administration of justice and unduly burdens the
courts. Moreover, Rule 117 provides that grounds not raised in the first motion to quash are
generally deemed waived.19 Petitioner's "Motion to Dismiss" violates this rule.

Constitutionality of
the Challenged Provision

If only for the foregoing procedural lapses, the Petition deserves to be dismissed outright. However,
given the importance of this case in curtailing graft and corruption, the Court will nevertheless
address the other issues on their merit. Petitioner challenges the validity of Section 5 of Republic Act
3019, a penal statute, on the ground that the act constituting the offense is allegedly vague and
"impermissibly broad."

It is best to stress at the outset that the overbreadth20 and the vagueness21 doctrines have special
application only to free-speech cases. They are not appropriate for testing the validity of penal
statutes. Mr. Justice Vicente V. Mendoza explained the reason as follows:

"A facial challenge is allowed to be made to a vague statute and to one which is overbroad
because of possible 'chilling effect' upon protected speech. The theory is that '[w]hen
statutes regulate or proscribe speech and no readily apparent construction suggests itself as
a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all
society of constitutionally protected expression is deemed to justify allowing attacks on overly
broad statutes with no requirement that the person making the attack demonstrate that his
own conduct could not be regulated by a statute drawn with narrow specificity.' The possible
harm to society in permitting some unprotected speech to go unpunished is outweighed by
the possibility that the protected speech of others may be deterred and perceived grievances
left to fester because of possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general
in terrorem effect resulting from their very existence, and, if facial challenge is allowed for
this reason alone, the State may well be prevented from enacting laws against socially
harmful conduct. In the area of criminal law, the law cannot take chances as in the area of
free speech.

xxxxxxxxx

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools
developed for testing "on their faces" statutes in free speech cases or, as they are called in
American law, First Amendment cases. They cannot be made to do service when what is
involved is a criminal statute. With respect to such statute, the established rule is that 'one to
whom application of a statute is constitutional will not be heard to attack the statute on the
ground that impliedly it might also be taken as applying to other persons or other situations in
which its application might be unconstitutional.' As has been pointed out, 'vagueness
challenges in the First Amendment context, like overbreadth challenges typically produce
facial invalidation, while statutes found vague as a matter of due process typically are
invalidated [only] 'as applied' to a particular defendant.'"22(underscoring supplied)

"To this date, the Court has not declared any penal law unconstitutional on the ground of
ambiguity."23 While mentioned in passing in some cases, the void-for-vagueness concept has
yet to find direct application in our jurisdiction. In Yu Cong Eng v. Trinidad,24 the Bookkeeping
Act was found unconstitutional because it violated the equal protection clause, not because it
was vague. Adiong v. Comelec25 decreed as void a mere Comelec Resolution, not a statute.
Finally, Santiago v. Comelec26 held that a portion of RA 6735 was unconstitutional because
of undue delegation of legislative powers, not because of vagueness.

Indeed, an "on-its-face" invalidation of criminal statutes would result in a mass acquittal of parties
whose cases may not have even reached the courts. Such invalidation would constitute a departure
from the usual requirement of "actual case and controversy" and permit decisions to be made in a
sterile abstract context having no factual concreteness. In Younger v. Harris, this evil was aptly
pointed out by the U.S. Supreme Court in these words:27

"[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring
correction of these deficiencies before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief sought, and above all the
speculative and amorphous nature of the required line-by-line analysis of detailed statutes, x
x x ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional
questions, whichever way they might be decided."

For this reason, generally disfavored is an on-its-face invalidation of statutes, described as a

"manifestly strong medicine" to be employed "sparingly and only as a last resort." In determining the
constitutionality of a statute, therefore, its provisions that have allegedly been violated must be
examined in the light of the conduct with which the defendant has been charged.28

As conduct -- not speech -- is its object, the challenged provision must be examined only "as
applied" to the defendant, herein petitioner, and should not be declared unconstitutional for
overbreadth or vagueness.

The questioned provision reads as follows:

"Section 5. Prohibition on certain relatives. — It shall be unlawful for the spouse or for any
relative, by consanguinity or affinity, within the third civil degree, of the President of the
Philippines, the Vice-President of the Philippines, the President of the Senate, or the
Speaker of the House of Representatives, to intervene, directly or indirectly, in any business,
transaction, contract or application with the Government: Provided, That this section shall not
apply to any person who, prior to the assumption of office of any of the above officials to
whom he is related, has been already dealing with the Government along the same line of
business, nor to any transaction, contract or application already existing or pending at the
time of such assumption of public office, nor to any application filed by him the approval of
which is not discretionary on the part of the official or officials concerned but depends upon
compliance with requisites provided by law, or rules or regulations issued pursuant to law,
nor to any act lawfully performed in an official capacity or in the exercise of a profession."

Petitioner also claims that the phrase "to intervene directly or indirectly, in any business, transaction,
contract or application with the Government" is vague and violates his right to be informed of the
cause and nature of the accusation against him.29 He further complains that the provision does not
specify what acts are punishable under the term intervene, and thus transgresses his right to be
presumed innocent.30 We disagree.

Every statute is presumed valid.31 On the party challenging its validity weighs heavily the onerous
task of rebutting this presumption.32 Any reasonable doubt about the validity of the law should be
resolved in favor of its constitutionality.33 To doubt is to sustain, as tersely put by Justice George
Malcolm. In Garcia v. Executive Secretary,34 the rationale for the presumption of constitutionality was
explained by this Court thus:

"The policy of the courts is to avoid ruling on constitutional questions and to presume that the
acts of the political departments are valid in the absence of a clear and unmistakable
showing to the contrary. To doubt is to sustain. This presumption is based on the doctrine of
separation of powers which enjoins upon each department a becoming respect for the acts
of the other departments. The theory is that as the joint act of Congress and the President of
the Philippines, a law has been carefully studied and determined to be in accordance with
the fundamental law before it was finally enacted."35

In the instant case, petitioner has miserably failed to overcome such presumption. This Court has
previously laid down the test for determining whether a statute is vague, as follows:
 "x x x [A] statute establishing a criminal offense must define the offense with sufficient
definiteness that persons of ordinary intelligence can understand what conduct is prohibited
by the statute. It can only be invoked against that species of legislation that is utterly vague
on its face, i.e., that which cannot be clarified either by a saving clause or by construction.

"A statute or act may be said to be vague when it lacks comprehensible standards that men
of common intelligence must necessarily guess at its meaning and differ in its application. In
such instance, the statute is repugnant to the Constitution in two (2) respects - it violates due
process for failure to accord persons, especially the parties targeted by it, fair notice of what
conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government muscle.36 But the doctrine
does not apply as against legislations that are merely couched in imprecise language but
which nonetheless specify a standard though defectively phrased; or to those that are
apparently ambiguous yet fairly applicable to certain types of activities. The first may be
'saved' by proper construction, while no challenge may be mounted as against the second
whenever directed against such activities.37 With more reason, the doctrine cannot be
invoked where the assailed statute is clear and free from ambiguity, as in this case.

"The test in determining whether a criminal statute is void for uncertainty is whether the
language conveys a sufficiently definite warning as to the proscribed conduct when
measured by common understanding and practice.38 It must be stressed, however, that the
'vagueness' doctrine merely requires a reasonable degree of certainty for the statute to be
upheld - not absolute precision or mathematical exactitude, as petitioner seems to suggest.
Flexibility, rather than meticulous specificity, is permissible as long as the metes and bounds
of the statute are clearly delineated. An act will not be held invalid merely because it might
have been more explicit in its wordings or detailed in its provisions, especially where,
because of the nature of the act, it would be impossible to provide all the details in advance
as in all other statutes."39

A simpler test was decreed in Dans v. People,40 in which the Court said that there was nothing vague
about a penal law that adequately answered the basic query "What is the violation?"41 Anything
beyond -- the hows and the whys -- are evidentiary matters that the law itself cannot possibly
disclose, in view of the uniqueness of every case.42

The question "What is the violation?" is sufficiently answered by Section 5 of RA 3019, as follows:

1. The offender is a spouse or any relative by consanguinity or affinity within the third civil
degree of the President of the Philippines, the Vice-President of the Philippines, the
President of the Senate, or the Speaker of the House of Representatives; and

2. The offender intervened directly or indirectly in any business, transaction, contract or

application with the government.

Applicability of
Statutory Construction

As to petitioner's claim that the term intervene is vague, this Court agrees with the Office of the
Solicitor General that the word can easily be understood through simple statutory construction. The
absence of a statutory definition of a term used in a statute will not render the law "void for
vagueness," if the meaning can be determined through the judicial function of
construction.43 Elementary is the principle that words should be construed in their ordinary and usual
meaning.

"x x x. A statute is not rendered uncertain and void merely because general terms are used
therein, or because of the employment of terms without defining them;44 much less do we
have to define every word we use. Besides, there is no positive constitutional or statutory
command requiring the legislature to define each and every word in an enactment. Congress
is not restricted in the form of expression of its will, and its inability to so define the words
 employed in a statute will not necessarily result in the vagueness or ambiguity of the law so
long as the legislative will is clear, or at least, can be gathered from the whole act x x x.

"x x x [I]t is a well-settled principle of legal hermeneutics that words of a statute will be
interpreted in their natural, plain and ordinary acceptation and signification,45 unless it is
evident that the legislature intended a technical or special legal meaning to those
words.46 The intention of the lawmakers - who are, ordinarily, untrained philologists and
lexicographers - to use statutory phraseology in such a manner is always presumed."47

The term intervene should therefore be understood in its ordinary acceptation, which is to "to come
between."48Criminally liable is anyone covered in the enumeration of Section 5 of RA 3019 -- any
person who intervenes in any manner in any business, transaction, contract or application with the
government. As we have explained, it is impossible for the law to provide in advance details of how
such acts of intervention could be performed. But the courts may pass upon those details once trial
is concluded. Thus, the alleged vagueness of intervene is not a ground to quash the information
prior to the commencement of the trial.

In sum, the Court holds that the challenged provision is not vague, and that in any event, the
"overbreath" and "void for vagueness" doctrines are not applicable to this case.

Second Issue:
Allegedly Vague Information

Other than arguing on the alleged intrinsic vagueness of intervene, petitioner further contends that
the Information itself is also unconstitutionally vague, because it does not specify the acts of
intervention that he supposedly performed.49 Again, we disagree.

When allegations in the information are vague or indefinite, the remedy of the accused is not a
motion to quash, but a motion for a bill of particulars.50 The pertinent provision in the Rules of Court
is Section 9 of Rule 116, which we quote:

"Section 9. Bill of particulars. -- The accused may, before arraignment, move for a bill of
particulars to enable him properly to plead and prepare for trial. The motion shall specify the
alleged defects of the complaint or information and the details desired."

The rule merely requires the information to describe the offense with sufficient particularity as to
apprise the accused of what they are being charged with and to enable the court to pronounce
judgment. 51 The particularity must be such that persons of ordinary intelligence may immediately
know what is meant by the information.52

While it is fundamental that every element of the offense must be alleged in the
information,53 matters of evidence -- as distinguished from the facts essential to the nature of the
offense -- need not be averred.54 Whatever facts and circumstances must necessarily be alleged are
to be determined by reference to the definition and the essential elements of the specific crimes.55

In the instant case, a cursory reading of the Information shows that the elements of a violation of
Section 5 of RA 3019 have been stated sufficiently. Likewise, the allegations describe the offense
committed by petitioner with such particularity as to enable him to prepare an intelligent defense.
Details of the acts he committed are evidentiary matters that need not be alleged in the Information.

Third Issue:
Preliminary Investigation

Clearly, petitioner already brought the issue of lack of preliminary investigation when he questioned
before this Court in GR No. 128317 the Sandiganbayan's Order giving him 15 days to file a Motion
for Reinvestigation with the Office of the Special Prosecutor.56 Citing Cojuangco v. Presidential
Commission on Good Government,57 he undauntedly averred that he was deprived of his right to a
preliminary investigation, because the PCGG acted both as complainant and as investigator.58
In the case cited above, this Court declared that while PCGG had the power to conduct a preliminary
investigation, the latter could not do so with the "cold neutrality of an impartial judge" in cases in
which it was the agency that had gathered evidence and subsequently filed the complaint.59 On that
basis, this Court nullified the preliminary investigation conducted by PCGG and directed the
transmittal of the records to the Ombudsman for appropriate action.

It is readily apparent that Cojuangco does not support the quashal of the Information against herein
petitioner. True, the PCGG initiated the present Complaint against him; hence, it could not properly
conduct the preliminary investigation. However, he was accorded his rights -- the Sandiganbayan
suspended the trial and afforded him a reinvestigation by the Ombudsman. The procedure outlined
in Cojuangco was thus followed.

The Sandiganbayan's actions are in accord also with Raro v. Sandiganbayan,60 which held that the
failure to conduct a valid preliminary investigation would not warrant the quashal of an information. If
the information has already been filed, the proper procedure is for the Sandiganbayan to hold the
trial in abeyance while the preliminary investigation is being conducted or completed.61

Fourth Issue:
Prescription

The issue of prescription was the principal basis of the Motion to Quash filed by petitioner with the
Sandiganbayan on October 8, 1999.62 Such issue should be disregarded at this stage, since he
failed to challenge its ruling debunking his Motion within the 60-day period for the filing of a petition
for certiorari. A party may not circumvent this rule by filing a subsequent motion that raises the same
issue and the same arguments.

Furthermore, it is easy to see why this argument being raised by petitioner is utterly unmeritorious.
He points out that according to the Information, the offense was committed "during the period from
July 16, 1975 to July 29, 1975." He argues that when the Information was filed on July 12,
1989,63 prescription had already set in, because the prescriptive period for a violation of Republic Act
No. 3019 is only ten (10) years from the time the offense was allegedly committed. The increase of
this prescriptive period to fifteen (15) years took effect only on March 16, 1982, upon the enactment
of Batas Pambansa Blg. 195.64

Act No. 3326, as amended,65 governs the prescription of offenses penalized by special laws. Its
pertinent provision reads:

"Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the
law, and if the same not be known at the time, from the discovery thereof and the institution
of judicial proceedings for its investigation and punishment.

"The prescription shall be interrupted when proceedings are instituted against the guilty
person, and shall begin to run again if the proceedings are dismissed for reasons not
constituting jeopardy."

Consistent with the provision quoted above, this Court has previously reckoned the prescriptive
period of cases involving RA 3019 (committed prior to the February 1986 EDSA Revolution) from
the discovery of the violation.66 In Republic v. Desierto, the Court explained:

"This issue confronted this Court anew, albeit in a larger scale, in Presidential Ad Hoc Fact-
Finding Committee on Behest Loans v. Desierto. In the said recent case, the Board of
Directors of the Philippine Seeds, Inc. and Development Bank of the Philippines were
charged with violation of paragraphs (e) and (g) of Section 3 of RA No. 3019, by the
Presidential Ad Hoc Fact-Finding Committee on Behest Loans, created by then President
Fidel V. Ramos to investigate and to recover the so-called 'Behest Loans', where the
Philippine Government guaranteed several foreign loans to corporations and entities
connected with the former President Marcos. x x x In holding that the case had not yet
prescribed, this Court ruled that:
 'In the present case, it was well-nigh impossible for the State, the aggrieved party, to
have known the violations of RA No. 3019 at the time the questioned transactions
were made because, as alleged, the public officials concerned connived or conspired
with the 'beneficiaries of the loans.' Thus, we agree with the COMMITTEE that the
prescriptive period for the offenses with which the respondents in OMB-0-96-0968
were charged should be computed from the discovery of the commission thereof and
not from the day of such commission.

xxx xxx xxx

'People v. Duque is more in point, and what was stated there stands reiteration: In
the nature of things, acts made criminal by special laws are frequently not immoral or
obviously criminal in themselves; for this reason, the applicable statute requires that
if the violation of the special law is not known at the time, the prescription begins to
run only from the discovery thereof, i.e., discovery of the unlawful nature of the
constitutive act or acts.' (Italics supplied)

"There are striking parallelisms between the said Behest Loans Case and the present one
which lead us to apply the ruling of the former to the latter. First, both cases arose out of
seemingly innocent business transactions; second, both were 'discovered' only after the
government created bodies to investigate these anomalous transactions; third, both involve
prosecutions for violations of RA No. 3019; and, fourth, in both cases, it was sufficiently
raised in the pleadings that the respondents conspired and connived with one another in
order to keep the alleged violations hidden from public scrutiny.

"This Court's pronouncement in the case of Domingo v. Sandiganbayan is quite relevant and
instructive as to the date when the discovery of the offense should be reckoned, thus:

'In the present case, it was well-nigh impossible for the government, the aggrieved
party, to have known the violations committed at the time the questioned transactions
were made because both parties to the transactions were allegedly in conspiracy to
perpetuate fraud against the government. The alleged anomalous transactions could
only have been discovered after the February 1986 Revolution when one of the
original respondents, then President Ferdinand Marcos, was ousted from office. Prior
to said date, no person would have dared to question the legality or propriety of
those transactions. Hence, the counting of the prescriptive period would commence
from the date of discovery of the offense, which could have been between February
1986 after the EDSA Revolution and 26 May 1987 when the initiatory complaint was
filed.'"67

The above pronouncement is squarely applicable to the present case. The general rule that
prescription shall begin to run from the day of the commission of the crime cannot apply to the
present case. It is not legally prudent to charge the State, the aggrieved party, with knowledge of the
violation of RA 3019 at the time the alleged intervention was made. The accused is the late
President Ferdinand E. Marcos' brother-in-law. He was charged with intervening in a sale involving a
private corporation, the majority stocks of which was allegedly owned by President Marcos.

Prior to February 1986, no person was expected to have seriously dared question the legality of the
sale or would even have thought of investigating petitioner's alleged involvement in the transaction. It
was only after the creation68of PCGG69 and its exhaustive investigations that the alleged crime was
discovered. This led to the initiation on November 29, 1988 of a Complaint against former President
Marcos and petitioner for violation of the Anti-Graft and Corrupt Practices Act. Consequently, the
filing of the Information on July 12, 1989 was well within the prescriptive period of ten years from
the discovery of the offense.

Fifth Issue
Immunity from Prosecution
Petitioner argues that he enjoys derivative immunity, because he allegedly served as a high-ranking
naval officer -- specifically, as naval aide-de-camp -- of former President Marcos.70 He relies on
Section 17 of Article VII of the 1973 Constitution, as amended, which we quote:

"The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever
shall lie for official acts done by him or by others pursuant to his specific orders during his
tenure.

"x x x xxx x x x"

As the Sandiganbayan aptly pointed out, the above provision is not applicable to petitioner because
the immunity amendment became effective only in 1981 while the alleged crime happened in 1975.

In Estrada v. Desierto,71 this Court exhaustively traced the origin of executive immunity in order to
determine the extent of its applicability. We explained therein that executive immunity applied only
during the incumbency of a President. It could not be used to shield a non-sitting President from
prosecution for alleged criminal acts done while sitting in office. The reasoning of petitioner must
therefore fail, since he derives his immunity from one who is no longer sitting as President. Verily,
the felonious acts of public officials and their close relatives "are not acts of the State, and the officer
who acts illegally is not acting as such but stands on the same footing as any other trespasser."

In sum, petitioner utterly fails to show that the Sandiganbayan gravely abused its discretion in
issuing the assailed Resolutions.72 On the contrary, it acted prudently, in accordance with law and
jurisprudence.

WHEREFORE, the Petition is DISMISSED, and the questioned Resolutions of the

Sandiganbayan AFFIRMED. Costs against petitioner.

SO ORDERED.

Davide, Jr., C.J., Quisumbing, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr., and Azcuna,
JJ., concur.
Puno, Ynares-Santiago, and Sandoval-Gutierrez, JJ., in the result.
Corona, J., on leave.
Tinga, J., in the result. Please see separate opinion.
Chico-Nazario, J., no part. Ponente of assailed SB Resolutions.

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

SEPARATE OPINION

TINGA, J.:

I concur in the result of the ponencia and the proposition that Section 5 of the Anti-Plunder Law is
constitutional. The validity of the provision has been passed upon by the Court before in Estrada v.
Sandiganbayan.1 I also agree with the ponencia's reiteration of the ruling in Estrada that Section 5 is
receptive to the basic principle in statutory construction that words should be construed in their
ordinary and usual meaning.2

However, with all due respect, I raise serious objections to the ponencia's holding that the so-called
"void for vagueness" doctrine has special application only to free speech cases,3 and the undeclared
proposition that penal
laws may not be stricken down on the ground of ambiguity.4 I am aware that the assertions rely upon
the separate opinions of the herein ponente5 and Mr. Justice Vicente Mendoza6 in Estrada. I am also
aware that the critical portion of Mr. Justice Mendoza's separate opinion in Estrada was cited with
approval by Mr. Justice Bellosillo's ponencia therein.7

The incontrovertible reality though is that the majority's pronouncement in Estrada that penal
statutes cannot be challenged on vagueness grounds did not form part of the ratio decidendi.
The ratio, in the words of Justice Bellosillo, was: "as it is written, the Plunder Law contains
ascertainable standards and well-defined parameters which would enable the accused to determine
the nature of his violation,"8 and thus the law does not suffer from unconstitutionality. The discussion
on the vagueness aspect was not decisive of the main issue and, therefore, clearly obiter dictum. I
submit that it is erroneous to resolve the present petition on the basis of that dictum in Estrada.

As the obiter dictum in Estrada is needlessly made a ratio in the present case, the ponencia herein
has even unwittingly elevated to doctrinal level the proposition that the constitutionality of penal laws
cannot be challenged on the ground of vagueness. I humbly submit that the stance is flawed and
contrary to fundamental principles of due process.

The Bill of Rights occupies a position of primacy in the fundamental law.9 It is thus sacrosanct in this
jurisdiction that no person shall be deprived of life, liberty or property without due process of law.10

A challenge to a penal statute premised on the argument that the law is vague is a proper invocation
of the due process clause. A statute that lacks comprehensible standards that men of common
intelligence must necessarily guess at its meaning and differ as to its application violates the due
process clause, for failure to accord persons fair notice of the conduct to avoid.11 As held by the
Court in People v. Dela Piedra:12

Due process requires that the terms of a penal statute must be sufficiently explicit to inform
those who are subject to it what conduct on their part will render them liable to its penalties.
A criminal statute that "fails to give a person of ordinary intelligence fair notice that his
contemplated conduct is forbidden by the statute," or is so indefinite that "it encourages
arbitrary and erratic arrests and convictions," is void for vagueness. The constitutional vice in
a vague or indefinite statute is the injustice to the accused in placing him on trial for an
offense, the nature of which he is given no fair warning.13

It should also be reckoned that the Bill of Rights likewise guarantees that no person shall be held to
answer for a criminal offense without due process of law,14 and that the accused enjoys the right to
be informed of the nature and cause of the accusation against him or her.15 The Bill of Rights
ensures the fullest measure of protection to an accused. If a particular mode of constitutional
challenge, such as one predicated on the "void for vagueness" doctrine, is available to an ordinary
person deprived of property or means of expression, then more so should it be accessible to one
who is in jeopardy of being deprived of liberty or of life.16

"Vagueness" and "Overbreadth" Are Distinct Concepts

A fundamental flaw, to my mind, in the analysis employed by the ponencia and some of the separate
opinions in Estrada is the notion that the "vagueness" and "overbreadth" doctrines are the same and
should be accorded similar treatment. This is erroneous.

Mr. Justice Kapunan, in his dissenting opinion in Estrada, offers a correct distinction between
"vagueness" and "overbreadth":

A view has been proferred that "vagueness and overbreadth doctrines are not applicable to
penal laws." These two concepts, while related, are distinct from each other. On one hand,
the doctrine of overbreadth applies generally to statutes that infringe upon freedom of
speech. On the other hand, the "void-for-vagueness" doctrine applies to criminal laws,
not merely those that regulate speech or other fundamental constitutional right. (not
merely those that regulate speech or other fundamental constitutional rights.) The fact
 that a particular criminal statute does not infringe upon free speech does not mean that a
facial challenge to the statute on vagueness grounds cannot succeed.17

This view should be sustained, especially in light of the fact that the "void for vagueness" doctrine
has long been sanctioned as a means to invalidate penal statutes.

"Void For Vagueness" Invalidation of Penal Statutes has Long-Standing Jurisprudential History

As early as 1926, the United States Supreme Court held in Connally v. General Construction Co.,
thus: 18

That the terms of a penal statute creating a new offense must be sufficiently explicit to inform
those who are subject to it what conduct on their part will render them liable to its penalties is
a well- recognized requirement, consonant alike with ordinary notions of fair play and the
settled rules of law; and a statute which either forbids or requires the doing of an act in terms
so vague that men of common intelligence must necessarily guess at its meaning and differ
as to its application violates the first essential of due process of law.

Thus in Connally, a statute prescribing penalties for violation of an eight-hour workday law was
voided, presenting as it did, a "double uncertainty, fatal to its validity as a criminal statute."19

In Lanzetta v. State of New Jersey,20 a challenge was posed to a statute defining a "gangster" and
prescribing appropriate penalties, for being void for vagueness. The U.S. Supreme Court ruled that
the definition of a "gang" under the statute was vague, and the statute void for vagueness. It was of
no moment that the information against the accused described the offense with particularity.

If on its face the challenged provision is repugnant to the due process clause, specification of
details of the offense intended to be charged would not serve to validate it. (United States v.
Reese, 92 U.S. 214, 221; Czarra v. Board of Medical Supervisors, 25 App.D.C. 443, 453.) It
is the statute, not the accusation under it, that prescribes the rule to govern conduct
and warns against transgression. (See Stromberg v. California, 283 U.S. 359, 368 , 51
S.Ct. 532, 535, 73 A.L. R. 1484; Lovell v. Griffin, 303 U.S. 444 , 58 S.Ct. 666.) No one may
be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.
All are entitled to be informed as to what the State commands or forbids.21 (Emphasis
supplied)

In Bouie v. City of Columbia,22 civil rights protesters were charged with violating a criminal trespass
statute proscribing entry upon the lands of another after notice prohibiting such entry. A state court
construed the statute as applicable to the act of remaining on the premises of another after receiving
notice to leave. The U.S. Supreme Court reversed, applying again the "void for vagueness" doctrine.
Said Court admitted that "typical applications of the principle, the uncertainty as to the statute's
prohibition resulted from vague or overbroad language in the statute itself."23 Yet the Court noted
that "[t]here can be no doubt that a deprivation of the right of fair warning can result not only from
vague statutory language but also from an unforeseeable and retroactive judicial expansion of
narrow and precise statutory language."24 Accordingly, the Court overturned the convictions, holding
that "the crime for which [they] were convicted was not enumerated in the statute at the time of their
conduct," thus denying the accused due process of law.25

In Papachristou v. City of Jacksonville,26 a statute penalizing vagrancy was voided by the U.S.
Supreme Court, again for being vague:

This ordinance is void for vagueness, both in the sense that it "fails to give a person of
ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,"
(United States v. Harriss, 347 U.S. 612, 617), and because it encourages arbitrary and
erratic arrests and convictions (Thornhill v. Alabama, 310 U.S. 88; Herndon v. Lowry, 301
U.S. 242).27
Kolender v. Lawson28 involves another affirmation of the well-established doctrine. There, the US
Supreme Court invalidated a loitering statute requiring a loiterer to produce credible and reliable
identification when requested by a peace officer. It elucidated:

Although the doctrine focuses on both actual notice to citizens and arbitrary enforcement, we
have recognized recently that the more important aspect of the vagueness doctrine "is not
actual notice, but the other principal element of the doctrine-the requirement that a
legislature establish minimal guidelines to govern law enforcements. Where the legislature
fails to provide such minimal guidelines, a criminal statute may permit "a standardless sweep
[that] allows policemen, prosecutors and juries to pursue their personal predilections.29

In the fairly recent case of City of Chicago v. Morales,30 the U.S. Supreme Court affirmed a lower
court ruling invalidating as void for vagueness an ordinance prohibiting "criminal street gang
members" from loitering in public places, as well as the conviction based on the invalidated
ordinance. The US Court again asserted:

For it is clear that the vagueness of this enactment makes a facial challenge appropriate.
This is not an ordinance that "simply regulates business behavior and contains a scienter
requirement." (See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489,
499 (1982)). It is a criminal law that contains no mens rea requirement
(see Colautti v. Franklin , 439 U. S. 379, 395 (1979)), and infringes on constitutionally
protected rights (see id. , at 391). When vagueness permeates the text of such a law, it is
subject to facial attack.

Vagueness may invalidate a criminal law for either of two independent reasons. First, it may
fail to provide the kind of notice that will enable ordinary people to understand what conduct
it prohibits; second, it may authorize and even encourage arbitrary and discriminatory
enforcement. (See Kolender v. Lawson, 461 U. S., at 357).31

Given the wealth of jurisprudence invalidating penal statutes for suffering from vagueness, it is
mystifying why the notion that the doctrine applies only to "free-speech" cases has gained a foothold
in this Court. It might be argued that the above-cited cases are foreign jurisprudence, inapplicable to
this jurisdiction. Yet it is submitted that the rule is applicable here, not because of its repeated
affirmation by American courts, but because such rule is lucidly consistent with our own fundamental
notions of due process, as enunciated in our own Constitution.

What then is the standard of due process which must exist both as a procedural and as
substantive requisite to free the challenged ordinance, or any government action for that
matter, from the imputation of legal infirmity; sufficient to spell its doom? It is responsiveness
to the supremacy of reason, obedience to the dictates of justice. Negatively put, arbitrariness
is ruled out and unfairness avoided. To satisfy the due process requirement, official action, to
paraphrase Cardozo, must not outrun the bounds of reasons and result in sheer oppression.
Due process is thus hostile to any official action marred by lack of reasonableness. Correctly
has it been identified as freedom from arbitrariness. It is the embodiment of the sporting idea
of fair play. It exacts fealty "to those strivings for justice" and judges the act of officialdom of
whatever branch" in the light of reason drawn from considerations of fairness that reflect
[democratic] traditions of legal and political thought." It is not a narrow or "technical
conception with fixed content unrelated to time, place and circumstances," decisions based
on such a clause requiring a "close and perceptive inquiry into fundamental principles of our
society."32

The dissent of Justice White, joined by Justice Rehnquist, in Kolender v. Lawson finds some kinship
with Mr. Justice Mendoza's views in Estrada, insofar as they point out a distinction between the
"vagueness" doctrine, as applied to criminal statutes, on one hand, and as applied to US First
Amendment cases, on the other.

The usual rule is that the alleged vagueness of a criminal statute must be judged in light of
the conduct that is charged to be violative of the statute. If the actor is given sufficient notice
that his conduct is within the proscription of the statute, his conviction is not vulnerable on
 vagueness grounds, even if as applied to other conduct, the law would be unconstitutionally
vague. None of our cases "suggests that one who has received fair warning of the criminality
of his own conduct from the statute in question is nonetheless entitled to attack it because
the language would not give similar fair warning ;with respect to other conduct which might
be within its broad and literal ambit. One to whose conduct a statute clearly applies may not
successfully challenge it for vagueness." The correlative rule is that a criminal statute is not
unconstitutionally vague on its face unless it is "impermissibly vague in all of its applications."

These general rules are equally applicable to cases where First Amendment or other
"fundamental" interests are involved. The Court has held that in such circumstances "more
precision in drafting may be required because of the vagueness doctrine in the case of
regulation of expression, a "greater degree of specificity" is demanded than in other contexts.
But the difference in such cases "relates to how strict a test of vagueness shall be applied in
judging a particular criminal statute." It does not permit the challenger of the statute to
confuse vagueness and overbreadth by attacking the enactment as being vague as applied
to conduct other than his own. Of course, if his own actions are themselves protected by
the First Amendment or other constitutional provision, or if the statute does not fairly
warn that it is proscribed, he may not be convicted. But it would be unavailing for him to
claim that although he knew his own conduct was unprotected and was plainly enough
forbidden by the statute, others may be in doubt as to whether their acts are banned by the
law.33 (Emphasis supplied)

Still, the quoted dissenting opinion concedes the applicability of the "void for vagueness" rule in
striking infirm criminal statutes. It just enunciates a greater demand for "specificity" in statutes which
may infringe on free speech protections.

Moreover, Mr. Justice Mendoza likewise invoked American jurisprudence in support of his view that
the overbreadth and vagueness doctrines apply only to free speech cases.34 He cites, among
others, U.S. v. Salerno35

and Broadrick v. Oklahoma.36 In Salerno, the US Supreme Court notes that the "overbreadth"
doctrine was inapplicable outside the context of the First Amendment.37 Notably though, the US
Court did not make the same assertion as to the "vagueness" doctrine. Had it done so in Salerno, it
would have been incongruent with its previous rulings, as well as with its subsequent ones.

Broadrick v. Oklahoma did not pertain to a challenge to a penal statute, but rather an Oklahoma law
restricting the political activities of that state's classified civil servants.38 Again, Broadrick may advert
to a correct interpretation of the "overbreadth" doctrine. However, in the face of numerous
jurisprudence affirming the "vagueness" challenge of American penal laws
neither Broadrick nor Salerno can be utilized to assert a converse rule.

Mr. Justice Mendoza's opinion also cites from the American constitutional law textbook of Sullivan
and Gunther, to assert that "vagueness challenges in the First Amendment context, like overbreadth
challenges, typically produce facial invalidation, while statutes found vague as a matter of due
process typically are invalidated only as

applied to a particular defendant."39 This may be a correct restatement of the American rule. Yet, it
does not necessarily mean that penal laws are not susceptible to a "void for vagueness" challenge.
In fact, in the same page cited in Mr. Justice Mendoza's opinion, Sullivan and Gunther cite cases
wherein American penal laws were stricken down for being vague, such as Connally v. General
Construction Co., Kolender v. Lawson, and Papachristou v. Jacksonville.40

The same citation likewise refers to the odd situation wherein unlike in First Amendment cases, due
process invalidations for vagueness apply only to a particular defendant. Sullivan and Gunther posit
that the broader protection afforded in First Amendment cases follow from "a special concern about
the 'chilling effect' of vague statutes on protected speech."41 However, the ponencia latches onto this
distinction in order to foist the bugaboo of "mass acquittal" of criminals due to the facial invalidation
of criminal statutes.42 Moreover, the ponencia asserts that such invalidation would constitute a
departure from the usual requirement of actual case and controversy and permit decisions to be
made in a sterile abstract context having no factual concreteness.43

Such concerns are overwrought. In this jurisdiction, judicial review over the constitutionality of
statutes, penal or otherwise, avails only upon the concurrence of (1) the existence of an appropriate
case; (2) an interest personal and substantial by the party raising the constitutional question; (3) a
plea that the function be exercised at the earliest opportunity; and (4) a necessity that the
constitutional question be passed upon in order to decide the case.44Challenges to the validity of
laws are not lightly undertaken, and the non-existence of any of the four conditions precedent bar a
successful challenge. Surely, not just anybody picked off the street prepossesses the requisite
standing, nor could just any case present itself as the proper vehicle for a constitutional attack.

These conditions precedent successfully weigh the concerns of the State, fearful of instabilities
brought by frequent invalidations of the laws it passes, and with the basic component of justice that a
person to whom a wrong is done by the State can seek vindication from the courts. Our basic
jurisprudential barrier has shielded this Court for generations from exercising unwarranted and
unmitigated judicial review. There is no need to further raise the bar for review, especially on such
flimsy foundations, lest we insulate ourselves from the pleas of the truly prejudiced, truly injured,
truly violated.

At the same time, the ponencia raises the concern that the invalidation of a void law will
unnecessarily benefit those without actual cases or controversies. It must be remembered though
that the Court will not unhesitatingly strike down a statute if a narrower alternative affording the same
correct relief is available. Within the confines of this discretion, all the tools of searching inquiry are
at the Court's disposal to carve as narrow a rule as necessary.

Still and all, if there is no alternative but to strike down a void law, there should be no hesitation on
the part of this Court in ruling it so, no matter the effective scope and reach of the decision. The
State has no business promulgating void laws, which stick out like a cancer infecting our
constitutional order. When faced with the proper opportunity, it is the Court's duty to excise the tumor
no matter how painful. Unfortunately, the solution advocated by the ponencia barring penal statutes
from "void for vagueness" assaults hides the patient from the doctor.

People v. Dela Piedra, earlier cited,45 did not invalidate the statute questioned therein on the "void for
vagueness" ground. Yet it affirms that the "void for vagueness" challenge to a penal law may be
sustained if the statute contravenes due process. The circumstance, as the ponencia herein points
out, that no penal law has been declared unconstitutional on the ground of ambiguity, does not mean
that no penal law can ever be invalidated on that ground.

As long as the due process clause remains immanent in our Constitution, its long reach should be
applied to deter and punish unwarranted deprivations of life, liberty or property. Violations of due
process are myriad, ranging as they do from the simple to the complicated, from the isolated to the
intermittent, from the abashed to the brazen. No advance statement can outrightly cast an act as
beyond the ambit of the due process clause, especially when applied to the lot of an accused, for
such is simply presumptuous and anathema to the spirit of fair play.

I may disagree with the eventual conclusions of Justices Kapunan, Ynares-Santiago and Sandoval-
Gutierrez in the Estrada case that Section 5 of the Anti-Plunder Law is void for vagueness. Yet, I
submit that their inquiry as to whether the said criminal statute was void for being vague is a juristic
exercise worth pursuing. If the ponenciaaffirms the earlier erroneous pronouncement as asserted in
the main by Mr. Justice Mendoza in Estrada, then I express the same fear articulated by Mr. Justice
Kapunan in his dissent, that "such stance is tantamount to saying that no criminal law can be
challenged however repugnant it is to the constitutional right to due process."46

DANTE O. TINGA
Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 148560 November 19, 2001

JOSEPH EJERCITO ESTRADA, petitioner,

vs.
SANDIGANBAYAN (Third Division) and PEOPLE OF THE PHILIPPINES, respondents.

DECISION

BELLOSILLO, J.:

JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his pen in defense of the
rights of the individual from the vast powers of the State and the inroads of societal pressure. But
even as he draws a sacrosanct line demarcating the limits on individuality beyond which the State
cannot tread - asserting that "individual spontaneity" must be allowed to flourish with very little regard
to social interference - he veritably acknowledges that the exercise of rights and liberties is imbued
with a civic obligation, which society is justified in enforcing at all cost, against those who would
endeavor to withhold fulfillment. Thus he says -

The sole end for which mankind is warranted, individually or collectively, in interfering with the liberty
of action of any of their number, is self-protection. The only purpose for which power can be rightfully
exercised over any member of a civilized community, against his will, is to prevent harm to others.

Parallel to individual liberty is the natural and illimitable right of the State to self-preservation. With
the end of maintaining the integrity and cohesiveness of the body politic, it behooves the State to
formulate a system of laws that would compel obeisance to its collective wisdom and inflict
punishment for non-observance.

The movement from Mill's individual liberalism to unsystematic collectivism wrought changes in the
social order, carrying with it a new formulation of fundamental rights and duties more attuned to the
imperatives of contemporary socio-political ideologies. In the process, the web of rights and State
impositions became tangled and obscured, enmeshed in threads of multiple shades and colors, the
skein irregular and broken. Antagonism, often outright collision, between the law as the expression
of the will of the State, and the zealous attempts by its members to preserve their individuality and
dignity, inevitably followed. It is when individual rights are pitted against State authority that judicial
conscience is put to its severest test.

Petitioner Joseph Ejercito Estrada, the highest-ranking official to be prosecuted under RA 7080 (An
Act Defining and Penalizing the Crime of Plunder),1 as amended by RA 7659,2 wishes to impress
upon us that the assailed law is so defectively fashioned that it crosses that thin but distinct line
which divides the valid from the constitutionally infirm. He therefore makes a stringent call for this
Court to subject the Plunder Law to the crucible of constitutionality mainly because, according to
him, (a) it suffers from the vice of vagueness; (b) it dispenses with the "reasonable doubt" standard
in criminal prosecutions; and, (c) it abolishes the element of mens rea in crimes already punishable
under The Revised Penal Code, all of which are purportedly clear violations of the fundamental
rights of the accused to due process and to be informed of the nature and cause of the accusation
against him.

Specifically, the provisions of the Plunder Law claimed by petitioner to have transgressed
constitutional boundaries are Secs. 1, par. (d), 2 and 4 which are reproduced hereunder:

Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property, business, enterprise or material
possession of any person within the purview of Section Two (2) hereof, acquired by him directly or
indirectly through dummies, nominees, agents, subordinates and/or business associates by any
combination or series of the following means or similar schemes:

(1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on

the public treasury;

(2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or
any other form of pecuniary benefit from any person and/or entity in connection with any
government contract or project or by reason of the office or position of the public office
concerned;

(3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National
Government or any of its subdivisions, agencies or instrumentalities, or government owned
or controlled corporations and their subsidiaries;

(4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or
any other form of interest or participation including the promise of future employment in any
business enterprise or undertaking;

(5) By establishing agricultural, industrial or commercial monopolies or other combinations

and/or implementation of decrees and orders intended to benefit particular persons or
special interests; or

(6) By taking advantage of official position, authority, relationship, connection or influence to

unjustly enrich himself or themselves at the expense and to the damage and prejudice of the
Filipino people and the Republic of the Philippines.

Section 2. Definition of the Crime of Plunder, Penalties. - Any public officer who, by himself or in
connivance with members of his family, relatives by affinity or consanguinity, business associates,
subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through
a combination or series of overt or criminal acts as described in Section 1 (d) hereof, in the
aggregate amount or total value of at least fifty million pesos (P50,000,000.00) shall be guilty of the
crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated
with the said public officer in the commission of an offense contributing to the crime of plunder shall
likewise be punished for such offense. In the imposition of penalties, the degree of participation and
the attendance of mitigating and extenuating circumstances as provided by the Revised Penal Code
shall be considered by the court. The court shall declare any and all ill-gotten wealth and their
interests and other incomes and assets including the properties and shares of stocks derived from
the deposit or investment thereof forfeited in favor of the State (underscoring supplied).

Section 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be
necessary to prove each and every criminal act done by the accused in furtherance of the
scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to
establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy (underscoring supplied).

On 4 April 2001 the Office of the Ombudsman filed before the Sandiganbayan eight (8) separate
Informations, docketed as: (a) Crim. Case No. 26558, for violation of RA 7080, as amended by RA
7659; (b) Crim. Cases Nos. 26559 to 26562, inclusive, for violation of Secs. 3, par. (a), 3, par. (a), 3,
par. (e) and 3, par. (e), of RA 3019 (Anti-Graft and Corrupt Practices Act), respectively; (c) Crim.
Case No. 26563, for violation of Sec. 7, par. (d), of RA 6713 (The Code of Conduct and Ethical
Standards for Public Officials and Employees); (d) Crim. Case No. 26564, for Perjury (Art. 183
of The Revised Penal Code); and, (e) Crim. Case No. 26565, for Illegal Use Of An Alias (CA No.
142, as amended by RA 6085).

On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the case to the Ombudsman
for preliminary investigation with respect to specification "d" of the charges in the Information in Crim.
Case No. 26558; and, for reconsideration/reinvestigation of the offenses under specifications "a,"
"b," and "c" to give the accused an opportunity to file counter-affidavits and other documents
necessary to prove lack of probable cause. Noticeably, the grounds raised were only lack of
preliminary investigation, reconsideration/reinvestigation of offenses, and opportunity to prove lack of
probable cause. The purported ambiguity of the charges and the vagueness of the law under which
they are charged were never raised in that Omnibus Motion thus indicating the explicitness and
comprehensibility of the Plunder Law.

On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in Crim. Case No. 26558
finding that "a probable cause for the offense of PLUNDER exists to justify the issuance of warrants
for the arrest of the accused." On 25 June 2001 petitioner's motion for reconsideration was denied
by the Sandiganbayan.

On 14 June 2001 petitioner moved to quash the Information in Crim. Case No. 26558 on the ground
that the facts alleged therein did not constitute an indictable offense since the law on which it was
based was unconstitutional for vagueness, and that the Amended Information for Plunder charged
more than one (1) offense. On 21 June 2001 the Government filed its Opposition to the Motion to
Quash, and five (5) days later or on 26 June 2001 petitioner submitted his Reply to the Opposition.
On 9 July 2001 the Sandiganbayan denied petitioner's Motion to Quash.

As concisely delineated by this Court during the oral arguments on 18 September 2001, the issues
for resolution in the instant petition for certiorari are: (a) The Plunder Law is unconstitutional for
being vague; (b) The Plunder Law requires less evidence for proving the predicate crimes of plunder
and therefore violates the rights of the accused to due process; and, (c) Whether Plunder as defined
in RA 7080 is a malum prohibitum, and if so, whether it is within the power of Congress to so classify
it.

Preliminarily, the whole gamut of legal concepts pertaining to the validity of legislation is predicated
on the basic principle that a legislative measure is presumed to be in harmony with the
Constitution.3 Courts invariably train their sights on this fundamental rule whenever a legislative act
is under a constitutional attack, for it is the postulate of constitutional adjudication. This strong
predilection for constitutionality takes its bearings on the idea that it is forbidden for one branch of
the government to encroach upon the duties and powers of another. Thus it has been said that the
presumption is based on the deference the judicial branch accords to its coordinate branch - the
legislature.

If there is any reasonable basis upon which the legislation may firmly rest, the courts must assume
that the legislature is ever conscious of the borders and edges of its plenary powers, and has
passed the law with full knowledge of the facts and for the purpose of promoting what is right and
advancing the welfare of the majority. Hence in determining whether the acts of the legislature are in
tune with the fundamental law, courts should proceed with judicial restraint and act with caution and
forbearance. Every intendment of the law must be adjudged by the courts in favor of its
constitutionality, invalidity being a measure of last resort. In construing therefore the provisions of a
statute, courts must first ascertain whether an interpretation is fairly possible to sidestep the question
of constitutionality.

In La Union Credit Cooperative, Inc. v. Yaranon4 we held that as long as there is some basis for the
decision of the court, the constitutionality of the challenged law will not be touched and the case will
be decided on other available grounds. Yet the force of the presumption is not sufficient to catapult a
fundamentally deficient law into the safe environs of constitutionality. Of course, where the law
clearly and palpably transgresses the hallowed domain of the organic law, it must be struck down on
sight lest the positive commands of the fundamental law be unduly eroded.

Verily, the onerous task of rebutting the presumption weighs heavily on the party challenging the
validity of the statute. He must demonstrate beyond any tinge of doubt that there is indeed an
infringement of the constitution, for absent such a showing, there can be no finding of
unconstitutionality. A doubt, even if well-founded, will hardly suffice. As tersely put by Justice
Malcolm, "To doubt is to sustain."5 And petitioner has miserably failed in the instant case to
discharge his burden and overcome the presumption of constitutionality of the Plunder Law.
As it is written, the Plunder Law contains ascertainable standards and well-defined parameters
which would enable the accused to determine the nature of his violation. Section 2 is sufficiently
explicit in its description of the acts, conduct and conditions required or forbidden, and prescribes the
elements of the crime with reasonable certainty and particularity. Thus -

1. That the offender is a public officer who acts by himself or in connivance with members of
his family, relatives by affinity or consanguinity, business associates, subordinates or other
persons;

2. That he amassed, accumulated or acquired ill-gotten wealth through a combination or

series of the following overt or criminal acts: (a) through misappropriation, conversion,
misuse, or malversation of public funds or raids on the public treasury; (b) by receiving,
directly or indirectly, any commission, gift, share, percentage, kickback or any other form of
pecuniary benefits from any person and/or entity in connection with any government contract
or project or by reason of the office or position of the public officer; (c) by the illegal or
fraudulent conveyance or disposition of assets belonging to the National Government or any
of its subdivisions, agencies or instrumentalities of Government owned or controlled
corporations or their subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly
any shares of stock, equity or any other form of interest or participation including the promise
of future employment in any business enterprise or undertaking; (e) by establishing
agricultural, industrial or commercial monopolies or other combinations and/or
implementation of decrees and orders intended to benefit particular persons or special
interests; or (f) by taking advantage of official position, authority, relationship, connection or
influence to unjustly enrich himself or themselves at the expense and to the damage and
prejudice of the Filipino people and the Republic of the Philippines; and,

3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or
acquired is at least P50,000,000.00.

As long as the law affords some comprehensible guide or rule that would inform those who are
subject to it what conduct would render them liable to its penalties, its validity will be sustained. It
must sufficiently guide the judge in its application; the counsel, in defending one charged with its
violation; and more importantly, the accused, in identifying the realm of the proscribed conduct.
Indeed, it can be understood with little difficulty that what the assailed statute punishes is the act of a
public officer in amassing or accumulating ill-gotten wealth of at least P50,000,000.00 through a
series or combination of acts enumerated in Sec. 1, par. (d), of the Plunder Law.

In fact, the amended Information itself closely tracks the language of the law, indicating with
reasonable certainty the various elements of the offense which petitioner is alleged to have
committed:

"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office of the Ombudsman,
hereby accuses former PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, Joseph Ejercito
Estrada, a.k.a. 'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE,' together with Jose 'Jinggoy'
Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a.
Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES &
Jane Does, of the crime of Plunder, defined and penalized under R.A. No. 7080, as amended by
Sec. 12 of R.A. No. 7659, committed as follows:

That during the period from June, 1998 to January 2001, in the Philippines, and within the
jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with
his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR
CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY
TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP,
CONNECTION, OR INFLUENCE, did then and there willfully, unlawfully and criminally amass,
accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the
aggregate amount or TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT
HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS (P4,097,804,173.17), more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR
THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE
REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR Aseries of
overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows:

(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN

THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS
(P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF
GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT,
BY HIMSELF AND/OR in connection with co-accused CHARLIE 'ATONG' ANG, Jose
'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE
DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;

(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR

INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit, public funds in the amount
of ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less,
representing a portion of the TWO HUNDRED MILLION PESOS (P200,000,000.00) tobacco
excise tax share allocated for the province of Ilocos Sur under R.A. No. 7171, by himself
and/or in connivance with co-accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE
a.k.a.Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN
DOES & JANE DOES; (italic supplied).

(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the
Government Service Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF
STOCKS, MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES
OF STOCK, MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF
MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY
FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS
(P1,102,965,607.50) AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION
SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS
(P744,612,450.00), RESPECTIVELY, OR A TOTAL OF MORE OR LESS ONE BILLION
EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT
THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS (P1,847,578,057.50); AND
BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR
IN CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR
PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF STOCK IN THE
AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND
PESOS (P189,700,000.00) MORE OR LESS, FROM THE BELLE CORPORATION WHICH
BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE
ACCOUNT NAME 'JOSE VELARDE;'

(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES,

PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS, IN
CONNIVANCE WITH JOHN DOES AND JANE DOES, in the amount of MORE OR
LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR
THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS
(P3,233,104,173.17) AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME 'JOSE
VELARDE' AT THE EQUITABLE-PCI BANK."

We discern nothing in the foregoing that is vague or ambiguous - as there is obviously none - that
will confuse petitioner in his defense. Although subject to proof, these factual assertions clearly show
that the elements of the crime are easily understood and provide adequate contrast between the
innocent and the prohibited acts. Upon such unequivocal assertions, petitioner is completely
informed of the accusations against him as to enable him to prepare for an intelligent defense.

Petitioner, however, bewails the failure of the law to provide for the statutory definition of the terms
"combination" and "series" in the key phrase "a combination or series of overt or criminal acts" found
in Sec. 1, par. (d), and Sec. 2, and the word "pattern" in Sec. 4. These omissions, according to
petitioner, render the Plunder Law unconstitutional for being impermissibly vague and overbroad and
deny him the right to be informed of the nature and cause of the accusation against him, hence,
violative of his fundamental right to due process.

The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain and void
merely because general terms are used therein, or because of the employment of terms without
defining them;6 much less do we have to define every word we use. Besides, there is no positive
constitutional or statutory command requiring the legislature to define each and every word in an
enactment. Congress is not restricted in the form of expression of its will, and its inability to so define
the words employed in a statute will not necessarily result in the vagueness or ambiguity of the law
so long as the legislative will is clear, or at least, can be gathered from the whole act, which is
distinctly expressed in the Plunder Law.

Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be interpreted
in their natural, plain and ordinary acceptation and signification,7 unless it is evident that the
legislature intended a technical or special legal meaning to those words.8 The intention of the
lawmakers - who are, ordinarily, untrained philologists and lexicographers - to use statutory
phraseology in such a manner is always presumed. Thus, Webster's New Collegiate Dictionary
contains the following commonly accepted definition of the words "combination" and "series:"

Combination - the result or product of combining; the act or process of combining. To combine is to
bring into such close relationship as to obscure individual characters.

Series - a number of things or events of the same class coming one after another in spatial and
temporal succession.

That Congress intended the words "combination" and "series" to be understood in their popular
meanings is pristinely evident from the legislative deliberations on the bill which eventually became
RA 7080 or the Plunder Law:

DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May 1991

REP. ISIDRO: I am just intrigued again by our definition of plunder. We say THROUGH A
COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE
HEREOF. Now when we say combination, we actually mean to say, if there are two or more means,
we mean to say that number one and two or number one and something else are included, how
about a series of the same act? For example, through misappropriation, conversion, misuse, will
these be included also?

REP. GARCIA: Yeah, because we say a series.

REP. ISIDRO: Series.

REP. GARCIA: Yeah, we include series.

REP. ISIDRO: But we say we begin with a combination.

REP. GARCIA: Yes.

REP. ISIDRO: When we say combination, it seems that -

REP. GARCIA: Two.

REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of
one enumeration.

REP. GARCIA: No, no, not twice.

REP. ISIDRO: Not twice?

REP. GARCIA: Yes. Combination is not twice - but combination, two acts.

REP. ISIDRO: So in other words, that’s it. When we say combination, we mean, two different acts. It
cannot be a repetition of the same act.

REP. GARCIA: That be referred to series, yeah.

REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.

REP. GARCIA: A series.

REP. ISIDRO: That’s not series. Its a combination. Because when we say combination or series, we
seem to say that two or more, di ba?

REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is why, I said, that is a very
good suggestion because if it is only one act, it may fall under ordinary crime but we have here a
combination or series of overt or criminal acts. So x x x x

REP. GARCIA: Series. One after the other eh di....

SEN. TANADA: So that would fall under the term "series?"

REP. GARCIA: Series, oo.

REP. ISIDRO: Now, if it is a combination, ano, two misappropriations....

REP. GARCIA: Its not... Two misappropriations will not be combination. Series.

REP. ISIDRO: So, it is not a combination?

REP. GARCIA: Yes.

REP. ISIDRO: When you say combination, two different?

REP. GARCIA: Yes.

SEN. TANADA: Two different.

REP. ISIDRO: Two different acts.

REP. GARCIA: For example, ha...

REP. ISIDRO: Now a series, meaning, repetition...

DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989

SENATOR MACEDA: In line with our interpellations that sometimes "one" or maybe even "two" acts
may already result in such a big amount, on line 25, would the Sponsor consider deleting the words
"a series of overt or," to read, therefore: "or conspiracy COMMITTED by criminal acts such as."
Remove the idea of necessitating "a series." Anyway, the criminal acts are in the plural.

SENATOR TANADA: That would mean a combination of two or more of the acts mentioned in this.

THE PRESIDENT: Probably two or more would be....

SENATOR MACEDA: Yes, because "a series" implies several or many; two or more.
SENATOR TANADA: Accepted, Mr. President x x x x

THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime. But
when we say "acts of plunder" there should be, at least, two or more.

SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President.

Thus when the Plunder Law speaks of "combination," it is referring to at least two (2) acts falling
under different categories of enumeration provided in Sec. 1, par. (d), e.g., raids on the public
treasury in Sec. 1, par. (d), subpar. (1), and fraudulent conveyance of assets belonging to the
National Government under Sec. 1, par. (d), subpar. (3).

On the other hand, to constitute a series" there must be two (2) or more overt or criminal acts falling
under the same category of enumeration found in Sec. 1, par. (d), say, misappropriation,
malversation and raids on the public treasury, all of which fall under Sec. 1, par. (d), subpar. (1).
Verily, had the legislature intended a technical or distinctive meaning for "combination" and "series,"
it would have taken greater pains in specifically providing for it in the law.

As for "pattern," we agree with the observations of the Sandiganbayan9 that this term is sufficiently
defined in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 -

x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a combination or series of overt or
criminal acts enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the
law, the pattern of overt or criminal acts is directed towards a common purpose or goal which is to
enable the public officer to amass, accumulate or acquire ill-gotten wealth. And thirdly, there must
either be an 'overall unlawful scheme' or 'conspiracy' to achieve said common goal. As commonly
understood, the term 'overall unlawful scheme' indicates a 'general plan of action or method' which
the principal accused and public officer and others conniving with him follow to achieve the aforesaid
common goal. In the alternative, if there is no such overall scheme or where the schemes or
methods used by multiple accused vary, the overt or criminal acts must form part of a conspiracy to
attain a common goal.

Hence, it cannot plausibly be contended that the law does not give a fair warning and sufficient
notice of what it seeks to penalize. Under the circumstances, petitioner's reliance on the "void-for-
vagueness" doctrine is manifestly misplaced. The doctrine has been formulated in various ways, but
is most commonly stated to the effect that a statute establishing a criminal offense must define the
offense with sufficient definiteness that persons of ordinary intelligence can understand what
conduct is prohibited by the statute. It can only be invoked against that specie of legislation that is
utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by
construction.

A statute or act may be said to be vague when it lacks comprehensible standards that men of
common intelligence must necessarily guess at its meaning and differ in its application. In such
instance, the statute is repugnant to the Constitution in two (2) respects - it violates due process for
failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid;
and, it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an
arbitrary flexing of the Government muscle.10 But the doctrine does not apply as against legislations
that are merely couched in imprecise language but which nonetheless specify a standard though
defectively phrased; or to those that are apparently ambiguous yet fairly applicable to certain types
of activities. The first may be "saved" by proper construction, while no challenge may be mounted as
against the second whenever directed against such activities.11 With more reason, the doctrine
cannot be invoked where the assailed statute is clear and free from ambiguity, as in this case.

The test in determining whether a criminal statute is void for uncertainty is whether the language
conveys a sufficiently definite warning as to the proscribed conduct when measured by common
understanding and practice.12It must be stressed, however, that the "vagueness" doctrine merely
requires a reasonable degree of certainty for the statute to be upheld - not absolute precision or
mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous
specificity, is permissible as long as the metes and bounds of the statute are clearly delineated. An
act will not be held invalid merely because it might have been more explicit in its wordings or
detailed in its provisions, especially where, because of the nature of the act, it would be impossible
to provide all the details in advance as in all other statutes.

Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V. Mendoza
during the deliberations of the Court that the allegations that the Plunder Law is vague and
overbroad do not justify a facial review of its validity -

The void-for-vagueness doctrine states that "a statute which either forbids or requires the doing of an
act in terms so vague that men of common intelligence must necessarily guess at its meaning and
differ as to its application, violates the first essential of due process of law."13 The overbreadth
doctrine, on the other hand, decrees that "a governmental purpose may not be achieved by means
which sweep unnecessarily broadly and thereby invade the area of protected freedoms."14

A facial challenge is allowed to be made to a vague statute and to one which is overbroad because
of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or
proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating
the statutes in a single prosecution, the transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly broad statutes with no requirement that
the person making the attack demonstrate that his own conduct could not be regulated by a statute
drawn with narrow specificity."15 The possible harm to society in permitting some unprotected speech
to go unpunished is outweighed by the possibility that the protected speech of others may be
deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad
statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect
resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State
may well be prevented from enacting laws against socially harmful conduct. In the area of criminal
law, the law cannot take chances as in the area of free speech.

The overbreadth and vagueness doctrines then have special application only to free speech cases.
They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an
opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the
limited context of the First Amendment."16 In Broadrick v. Oklahoma,17 the Court ruled that "claims of
facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to
regulate only spoken words" and, again, that "overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws that are sought to be applied to protected
conduct." For this reason, it has been held that "a facial challenge to a legislative act is the most
difficult challenge to mount successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid."18 As for the vagueness doctrine, it is said
that a litigant may challenge a statute on its face only if it is vague in all its possible applications. "A
plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness
of the law as applied to the conduct of others."19

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed
for testing "on their faces" statutes in free speech cases or, as they are called in American law, First
Amendment cases. They cannot be made to do service when what is involved is a criminal statute.
With respect to such statute, the established rule is that "one to whom application of a statute is
constitutional will not be heard to attack the statute on the ground that impliedly it might also be
taken as applying to other persons or other situations in which its application might be
unconstitutional."20 As has been pointed out, "vagueness challenges in the First Amendment context,
like overbreadth challenges typically produce facial invalidation, while statutes found vague as a
matter of due process typically are invalidated [only] 'as applied' to a particular
defendant."21 Consequently, there is no basis for petitioner's claim that this Court review the Anti-
Plunder Law on its face and in its entirety.

Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that
they might be applied to parties not before the Court whose activities are constitutionally
protected.22 It constitutes a departure from the case and controversy requirement of the Constitution
and permits decisions to be made without concrete factual settings and in sterile abstract
contexts.23 But, as the U.S. Supreme Court pointed out in Younger v. Harris24

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of
these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the
judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative
process of the relief sought, and above all the speculative and amorphous nature of the required
line-by-line analysis of detailed statutes, . . . ordinarily results in a kind of case that is wholly
unsatisfactory for deciding constitutional questions, whichever way they might be decided.

For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong
medicine," to be employed "sparingly and only as a last resort,"25 and is generally disfavored.26 In
determining the constitutionality of a statute, therefore, its provisions which are alleged to have been
violated in a case must be examined in the light of the conduct with which the defendant is
charged.27

In light of the foregoing disquisition, it is evident that the purported ambiguity of the Plunder Law, so
tenaciously claimed and argued at length by petitioner, is more imagined than real. Ambiguity, where
none exists, cannot be created by dissecting parts and words in the statute to furnish support to
critics who cavil at the want of scientific precision in the law. Every provision of the law should be
construed in relation and with reference to every other part. To be sure, it will take more than
nitpicking to overturn the well-entrenched presumption of constitutionality and validity of the Plunder
Law. A fortiori, petitioner cannot feign ignorance of what the Plunder Law is all about. Being one of
the Senators who voted for its passage, petitioner must be aware that the law was extensively
deliberated upon by the Senate and its appropriate committees by reason of which he even
registered his affirmative vote with full knowledge of its legal implications and sound constitutional
anchorage.

The parallel case of Gallego v. Sandiganbayan28 must be mentioned if only to illustrate and
emphasize the point that courts are loathed to declare a statute void for uncertainty unless the law
itself is so imperfect and deficient in its details, and is susceptible of no reasonable construction that
will support and give it effect. In that case, petitioners Gallego and Agoncillo challenged the
constitutionality of Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Actfor being vague.
Petitioners posited, among others, that the term "unwarranted" is highly imprecise and elastic with no
common law meaning or settled definition by prior judicial or administrative precedents; that, for its
vagueness, Sec. 3, par. (e), violates due process in that it does not give fair warning or sufficient
notice of what it seeks to penalize. Petitioners further argued that the Information charged them with
three (3) distinct offenses, to wit: (a) giving of "unwarranted" benefits through manifest partiality; (b)
giving of "unwarranted" benefits through evident bad faith; and, (c) giving of "unwarranted" benefits
through gross inexcusable negligence while in the discharge of their official function and that their
right to be informed of the nature and cause of the accusation against them was violated because
they were left to guess which of the three (3) offenses, if not all, they were being charged and
prosecuted.

In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft and Corrupt
Practices Act does not suffer from the constitutional defect of vagueness. The phrases "manifest
partiality," "evident bad faith," and "gross and inexcusable negligence" merely describe the different
modes by which the offense penalized in Sec. 3, par. (e), of the statute may be committed, and the
use of all these phrases in the same Information does not mean that the indictment charges three (3)
distinct offenses.

The word 'unwarranted' is not uncertain. It seems lacking adequate or official support; unjustified;
unauthorized (Webster, Third International Dictionary, p. 2514); or without justification or adequate
reason (Philadelphia Newspapers, Inc. v. US Dept. of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in
Words and Phrases, Permanent Edition, Vol. 43-A 1978, Cumulative Annual Pocket Part, p. 19).

The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a corrupt practice and
make unlawful the act of the public officer in:
x x x or giving any private party any unwarranted benefits, advantage or preference in the discharge
of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross
inexcusable negligence, x x x (Section 3 [e], Rep. Act 3019, as amended).

It is not at all difficult to comprehend that what the aforequoted penal provisions penalize is the act of
a public officer, in the discharge of his official, administrative or judicial functions, in giving any
private party benefits, advantage or preference which is unjustified, unauthorized or without
justification or adequate reason, through manifest partiality, evident bad faith or gross inexcusable
negligence.

In other words, this Court found that there was nothing vague or ambiguous in the use of the term
"unwarranted" in Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act, which was understood
in its primary and general acceptation. Consequently, in that case, petitioners' objection thereto was
held inadequate to declare the section unconstitutional.

On the second issue, petitioner advances the highly stretched theory that Sec. 4 of the Plunder Law
circumvents the immutable obligation of the prosecution to prove beyond reasonable doubt the
predicate acts constituting the crime of plunder when it requires only proof of a pattern of overt or
criminal acts showing unlawful scheme or conspiracy -

SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be
necessary to prove each and every criminal act done by the accused in furtherance of the scheme or
conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond
reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or
conspiracy.

The running fault in this reasoning is obvious even to the simplistic mind. In a criminal prosecution
for plunder, as in all other crimes, the accused always has in his favor the presumption of innocence
which is guaranteed by the Bill of Rights, and unless the State succeeds in demonstrating by proof
beyond reasonable doubt that culpability lies, the accused is entitled to an acquittal.29 The use of the
"reasonable doubt" standard is indispensable to command the respect and confidence of the
community in the application of criminal law. It is critical that the moral force of criminal law be not
diluted by a standard of proof that leaves people in doubt whether innocent men are being
condemned. It is also important in our free society that every individual going about his ordinary
affairs has confidence that his government cannot adjudge him guilty of a criminal offense without
convincing a proper factfinder of his guilt with utmost certainty. This "reasonable doubt" standard has
acquired such exalted stature in the realm of constitutional law as it gives life to the Due Process
Clause which protects the accused against conviction except upon proof beyond reasonable doubt
of every fact necessary to constitute the crime with which he is charged.30 The following exchanges
between Rep. Rodolfo Albano and Rep. Pablo Garcia on this score during the deliberations in the
floor of the House of Representatives are elucidating -

DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9 October 1990

MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law that what is alleged in the
information must be proven beyond reasonable doubt. If we will prove only one act and find him
guilty of the other acts enumerated in the information, does that not work against the right of the
accused especially so if the amount committed, say, by falsification is less than P100 million, but the
totality of the crime committed is P100 million since there is malversation, bribery, falsification of
public document, coercion, theft?

MR. GARCIA: Mr. Speaker, not everything alleged in the information needs to be proved beyond
reasonable doubt. What is required to be proved beyond reasonable doubt is every element of the
crime charged. For example, Mr. Speaker, there is an enumeration of the things taken by the robber
in the information – three pairs of pants, pieces of jewelry. These need not be proved beyond
reasonable doubt, but these will not prevent the conviction of a crime for which he was charged just
because, say, instead of 3 pairs of diamond earrings the prosecution proved two. Now, what is
required to be proved beyond reasonable doubt is the element of the offense.
MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the crime of plunder the
totality of the amount is very important, I feel that such a series of overt criminal acts has to be taken
singly. For instance, in the act of bribery, he was able to accumulate only P50,000 and in the crime
of extortion, he was only able to accumulate P1 million. Now, when we add the totality of the other
acts as required under this bill through the interpretation on the rule of evidence, it is just one single
act, so how can we now convict him?

MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an essential element of the
crime, there is a need to prove that element beyond reasonable doubt. For example, one essential
element of the crime is that the amount involved is P100 million. Now, in a series of defalcations and
other acts of corruption in the enumeration the total amount would be P110 or P120 million, but there
are certain acts that could not be proved, so, we will sum up the amounts involved in those
transactions which were proved. Now, if the amount involved in these transactions, proved beyond
reasonable doubt, is P100 million, then there is a crime of plunder (underscoring supplied).

It is thus plain from the foregoing that the legislature did not in any manner refashion the standard
quantum of proof in the crime of plunder. The burden still remains with the prosecution to prove
beyond any iota of doubt every fact or element necessary to constitute the crime.

The thesis that Sec. 4 does away with proof of each and every component of the crime suffers from
a dismal misconception of the import of that provision. What the prosecution needs to prove beyond
reasonable doubt is only a number of acts sufficient to form a combination or series which would
constitute a pattern and involving an amount of at least P50,000,000.00. There is no need to prove
each and every other act alleged in the Information to have been committed by the accused in
furtherance of the overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten
wealth. To illustrate, supposing that the accused is charged in an Information for plunder with having
committed fifty (50) raids on the public treasury. The prosecution need not prove all these fifty (50)
raids, it being sufficient to prove by pattern at least two (2) of the raids beyond reasonable doubt
provided only that they amounted to at least P50,000,000.00.31

A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion that "pattern of
overt or criminal acts indicative of the overall unlawful scheme or conspiracy" inheres in the very acts
of accumulating, acquiring or amassing hidden wealth. Stated otherwise, such pattern arises where
the prosecution is able to prove beyond reasonable doubt the predicate acts as defined in Sec. 1,
par. (d). Pattern is merely a by-product of the proof of the predicate acts. This conclusion is
consistent with reason and common sense. There would be no other explanation for a combination
or series of

overt or criminal acts to stash P50,000,000.00 or more, than "a scheme or conspiracy to amass,
accumulate or acquire ill gotten wealth." The prosecution is therefore not required to make a
deliberate and conscious effort to prove pattern as it necessarily follows with the establishment of a
series or combination of the predicate acts.

Relative to petitioner's contentions on the purported defect of Sec. 4 is his submission that "pattern"
is "a very important element of the crime of plunder;" and that Sec. 4 is "two pronged, (as) it contains
a rule of evidence and a substantive element of the crime," such that without it the accused cannot
be convicted of plunder -

JUSTICE BELLOSILLO: In other words, cannot an accused be convicted under the Plunder Law
without applying Section 4 on the Rule of Evidence if there is proof beyond reasonable doubt of the
commission of the acts complained of?

ATTY. AGABIN: In that case he can be convicted of individual crimes enumerated in the Revised
Penal Code, but not plunder.

JUSTICE BELLOSILLO: In other words, if all the elements of the crime are proved beyond
reasonable doubt without applying Section 4, can you not have a conviction under the Plunder Law?

ATTY. AGABIN: Not a conviction for plunder, your Honor.

JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in convicting an accused
charged for violation of the Plunder Law?

ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a substantive element of the
law x x x x

JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4 when there is proof beyond
reasonable doubt on the acts charged constituting plunder?

ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it contains a rule of evidence
and it contains a substantive element of the crime of plunder. So, there is no way by which we can
avoid Section 4.

JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar as the predicate crimes
charged are concerned that you do not have to go that far by applying Section 4?

ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very important element of the
crime of plunder and that cannot be avoided by the prosecution.32

We do not subscribe to petitioner's stand. Primarily, all the essential elements of plunder can be
culled and understood from its definition in Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not
one of them. Moreover, the epigraph and opening clause of Sec. 4 is clear and unequivocal:

SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder x x x x

It purports to do no more than prescribe a rule of procedure for the prosecution of a criminal case for
plunder. Being a purely procedural measure, Sec. 4 does not define or establish any substantive
right in favor of the accused but only operates in furtherance of a remedy. It is only a means to an
end, an aid to substantive law. Indubitably, even without invoking Sec. 4, a conviction for plunder
may be had, for what is crucial for the prosecution is to present sufficient evidence to engender that
moral certitude exacted by the fundamental law to prove the guilt of the accused beyond reasonable
doubt. Thus, even granting for the sake of argument that Sec. 4 is flawed and vitiated for the
reasons advanced by petitioner, it may simply be severed from the rest of the provisions without
necessarily resulting in the demise of the law; after all, the existing rules on evidence can supplant
Sec. 4 more than enough. Besides, Sec. 7 of RA 7080 provides for a separability clause -

Sec. 7. Separability of Provisions. - If any provisions of this Act or the application thereof to any
person or circumstance is held invalid, the remaining provisions of this Act and the application of
such provisions to other persons or circumstances shall not be affected thereby.

Implicit in the foregoing section is that to avoid the whole act from being declared invalid as a result
of the nullity of some of its provisions, assuming that to be the case although it is not really so, all the
provisions thereof should accordingly be treated independently of each other, especially if by doing
so, the objectives of the statute can best be achieved.

As regards the third issue, again we agree with Justice Mendoza that plunder is a malum in se which
requires proof of criminal intent. Thus, he says, in his Concurring Opinion -

x x x Precisely because the constitutive crimes are mala in se the element of mens rea must be
proven in a prosecution for plunder. It is noteworthy that the amended information alleges that the
crime of plunder was committed "willfully, unlawfully and criminally." It thus alleges guilty knowledge
on the part of petitioner.

In support of his contention that the statute eliminates the requirement of mens rea and that is the
reason he claims the statute is void, petitioner cites the following remarks of Senator Tañada made
during the deliberation on S.B. No. 733:
SENATOR TAÑADA . . . And the evidence that will be required to convict him would not be evidence
for each and every individual criminal act but only evidence sufficient to establish the conspiracy or
scheme to commit this crime of plunder.33

However, Senator Tañada was discussing §4 as shown by the succeeding portion of the transcript
quoted by petitioner:

SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in Section 4, Rule
of Evidence, which, in the Gentleman's view, would provide for a speedier and faster process of
attending to this kind of cases?

SENATOR TAÑADA: Yes, Mr. President . . .34

Senator Tañada was only saying that where the charge is conspiracy to commit plunder, the
prosecution need not prove each and every criminal act done to further the scheme or conspiracy, it
being enough if it proves beyond reasonable doubt a pattern of overt or ciminal acts indicative of the
overall unlawful scheme or conspiracy. As far as the acts constituting the pattern are concerned,
however, the elements of the crime must be proved and the requisite mens rea must be shown.

Indeed, §2 provides that -

Any person who participated with the said public officer in the commission of an offense contributing
to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the
degree of participation and the attendance of mitigating and extenuating circumstances, as provided
by the Revised Penal Code, shall be considered by the court.

The application of mitigating and extenuating circumstances in the Revised Penal Code to
prosecutions under the Anti-Plunder Law indicates quite clearly that mens rea is an element of
plunder since the degree of responsibility of the offender is determined by his criminal intent. It is
true that §2 refers to "any person who participates with the said public officer in the commission of
an offense contributing to the crime of plunder." There is no reason to believe, however, that it does
not apply as well to the public officer as principal in the crime. As Justice Holmes said: "We agree to
all the generalities about not supplying criminal laws with what they omit, but there is no canon
against using common sense in construing laws as saying what they obviously mean."35

Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have been
resolved in the affirmative by the decision of Congress in 1993 to include it among the heinous
crimes punishable by reclusion perpetua to death. Other heinous crimes are punished with death as
a straight penalty in R.A. No. 7659. Referring to these groups of heinous crimes, this Court held
in People v. Echegaray:36

The evil of a crime may take various forms. There are crimes that are, by their very nature,
despicable, either because life was callously taken or the victim is treated like an animal and utterly
dehumanized as to completely disrupt the normal course of his or her growth as a human being . . . .
Seen in this light, the capital crimes of kidnapping and serious illegal detention for ransom resulting
in the death of the victim or the victim is raped, tortured, or subjected to dehumanizing acts;
destructive arson resulting in death; and drug offenses involving minors or resulting in the death of
the victim in the case of other crimes; as well as murder, rape, parricide, infanticide, kidnapping and
serious illegal detention, where the victim is detained for more than three days or serious physical
injuries were inflicted on the victim or threats to kill him were made or the victim is a minor, robbery
with homicide, rape or intentional mutilation, destructive arson, and carnapping where the owner,
driver or occupant of the carnapped vehicle is killed or raped, which are penalized by reclusion
perpetua to death, are clearly heinous by their very nature.

There are crimes, however, in which the abomination lies in the significance and implications of the
subject criminal acts in the scheme of the larger socio-political and economic context in which the
state finds itself to be struggling to develop and provide for its poor and underprivileged
masses. Reeling from decades of corrupt tyrannical rule that bankrupted the government and
impoverished the population, the Philippine Government must muster the political will to dismantle
the culture of corruption, dishonesty, greed and syndicated criminality that so deeply entrenched
itself in the structures of society and the psyche of the populace. [With the government] terribly
lacking the money to provide even the most basic services to its people, any form of
misappropriation or misapplication of government funds translates to an actual threat to the very
existence of government, and in turn, the very survival of the people it governs over. Viewed in this
context, no less heinous are the effects and repercussions of crimes like qualified bribery,
destructive arson resulting in death, and drug offenses involving government officials, employees or
officers, that their perpetrators must not be allowed to cause further destruction and damage to
society.

The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is
a malum in se. For when the acts punished are inherently immoral or inherently wrong, they
are mala in se37 and it does not matter that such acts are punished in a special law, especially since
in the case of plunder the predicate crimes are mainly mala in se. Indeed, it would be absurd to treat
prosecutions for plunder as though they are mere prosecutions for violations of the Bouncing Check
Law (B.P. Blg. 22) or of an ordinance against jaywalking, without regard to the inherent wrongness
of the acts.

To clinch, petitioner likewise assails the validity of RA 7659, the amendatory law of RA 7080, on
constitutional grounds. Suffice it to say however that it is now too late in the day for him to resurrect
this long dead issue, the same having been eternally consigned by People v. Echegaray38 to the
archives of jurisprudential history. The declaration of this Court therein that RA 7659 is
constitutionally valid stands as a declaration of the State, and becomes, by necessary effect,
assimilated in the Constitution now as an integral part of it.

Our nation has been racked by scandals of corruption and obscene profligacy of officials in high
places which have shaken its very foundation. The anatomy of graft and corruption has become
more elaborate in the corridors of time as unscrupulous people relentlessly contrive more and more
ingenious ways to bilk the coffers of the government. Drastic and radical measures are imperative to
fight the increasingly sophisticated, extraordinarily methodical and economically catastrophic looting
of the national treasury. Such is the Plunder Law, especially designed to disentangle those ghastly
tissues of grand-scale corruption which, if left unchecked, will spread like a malignant tumor and
ultimately consume the moral and institutional fiber of our nation. The Plunder Law, indeed, is a
living testament to the will of the legislature to ultimately eradicate this scourge and thus secure
society against the avarice and other venalities in public office.

These are times that try men's souls. In the checkered history of this nation, few issues of national
importance can equal the amount of interest and passion generated by petitioner's ignominious fall
from the highest office, and his eventual prosecution and trial under a virginal statute. This
continuing saga has driven a wedge of dissension among our people that may linger for a long time.
Only by responding to the clarion call for patriotism, to rise above factionalism and prejudices, shall
we emerge triumphant in the midst of ferment.

PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known as the Plunder Law, as
amended by RA 7659, is CONSTITUTIONAL. Consequently, the petition to declare the law
unconstitutional is DISMISSED for lack of merit.

SO ORDERED.

Buena, and De Leon, Jr., JJ., concur.

Davide, Jr. C.J., Melo, Quisumbing, JJ., join concurring opinion of J. Mendoza.
Puno, Vitug, JJ., concurred and joins J. Mendoza's concurring opinion.
Kapunan, Pardo, Sandoval-Gutierrez, Ynares-Santiago, JJ., see dissenting opinion.
Mendoza, J., please see concurring opinion.
Panganiban J., please see separate concurring opinion.
Carpio, J., no part. Was one of the complainants before Ombudsman.
Footnotes

1 Approved 12 July 1991 and took effect 8 October 1991.

2 Approved 13 December 1993 and took effect 31 December 1993.

3 Lim v. Pacquing, et al., G.R. No. 115044, 27 January 1995, 240 SCRA 644.

4 G.R. No. 87001, 4 December 1989, 179 SCRA 828.

5 Yu Cong Eng v. Trinidad, 47 Phil. 385, 414 (1925).

6 82 C.J.S. 68, p. 113; People v. Ring, 70 P.2d 281, 26 Cal. App. 2d Supp. 768.

7Mustang Lumber, Inc. v. Court of Appeals, G.R. No. 104988, 18 June 1996, 257 SCRA
430, 448.

8PLDT v. Eastern Telecommunications Phil., Inc., G.R. No. 943774, 27 August 1992, 213
SCRA 16, 26.

9 Resolution of 9 July 2001.

10 See People v. Nazario, No. L-44143, 31 August 1988, 165 SCRA 186, 195-196.

11 Ibid.

12
State v. Hill, 189 Kan 403, 369 P2d 365, 91 ALR2d 750.

Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L. Ed. 328 (1926) cited in Ermita-
13

Malate Hotel and Motel Operators Ass'n. v. City Mayor, 20 SCRA 849, 867 (1967).

14NAACP v. Alabama, 377 U.S. 288, 307, 12, 2 L. Ed 325, 338 (1958); Shelton v. Tucker
364 U.S. 479, 5 L. Ed. 2d 231 (1960).

Gooding v. Wilson, 405 U.S. 518, 521, 31 L. Ed. 2d 408, 413 (1972) (internal quotation
15

marks omitted).

United States v. Salerno, 481 U.S. 739, 745 95 L. Ed 2d 697, 707 (1987); see also
16

People v. De la Piedra, G.R. No. 121777, 24 January 2001.

17 413 U.S. 601, 612-613, 37 L. Ed 2d 830, 840-841 (1973).

18 United States v. Salerno, supra.

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71 L.
19

Ed. 2d 362, 369 (1982).

20United States v. Raines, 362 U.S. 17, 21, 4 L. Ed. 2d 524, 529 (1960). The paradigmatic
case is Yazoo & Mississippi Valley RR. v. Jackson Vinegar Co., 226 U.S. 217, 57 L. Ed. 193
(1912).

21 G. Gunther & K. Sullivan, Constitutional Law 1299 (2001).

 22Id. at 1328. See also Richard H. Fallon, Jr., As Applied and Facial Challenges, 113 Harv.
L. Rev. 1321 (2000) arguing that, in an important sense, as applied challenges are the basic
building blocks of constitutional adjudication and that determinations that statutes are facially
invalid properly occur only as logical outgrowths of ruling on whether statutes may be applied
to particular litigants on particular facts.

23Constitution, Art. VIII, §1 and 5. Compare Angara v. Electoral Commission, 63 Phil. 139,
158 (1936); "[T]he power of judicial review is limited to actual cases and controversies to be
exercised after full opportunity of argument by the parties, and limited further to be
constitutional question raised or the very lis mota presented. Any attempt at abstraction
could only lead to dialectics and barren legal questions and to sterile conclusions unrelated
to actualities."

24401 U.S. 37, 52-53, 27 L. Ed. 2d 669, 680 (1971). Accord, United States v. Raines, 362
U.S. 17, 4 L. Ed. 2d 524 (1960); Board of Trustees, State Univ. of N.Y. v. Fox, 492 U.S. 469,
106 L. Ed. 2d 388 (1989).

25
Broadrick v. Oklahoma, 413 U.S. at 613, 37 L. Ed. 2d at 841; National Endowment for the
Arts v. Finley, 524 U.S. 569, 580 (1998).

26FW/PBS, Inc. v. City of Dallas, 493 U.S. 223, 107 L. Ed. 2d 603 (1990); Cruz v. Secretary
of Environment and Natural Resources, G.R. No. 135385, 6 December 2000 (Mendoza, J.,
Separate Opinion).

27United States v. National Dairy Prod. Corp., 372 U.S. 29, 32-33, 9 L. Ed. 2d 561, 565-6
(1963).

28 G.R. No. 57841, 30 July 1982, 115 SCRA 793.

29 People v. Ganguso, G.R. No. 115430, 23 November 1995, 250 SCRA 268, 274-275.

30 People v. Garcia, G.R. No. 94187, 4 November 1992, 215 SCRA 349, 360.

31Then Senate President Jovito R. Salonga construed in brief the provision, thuswise: "If
there are let’s say 150 crimes all in all, criminal acts, whether bribery, misappropriation,
malversation, extortion, you need not prove all those beyond reasonable doubt. If you can
prove by pattern, let’s say 10, but each must be proved beyond reasonable doubt, you do not
have to prove 150 crimes. That’s the meaning of this (Deliberations of Committee on
Constitutional Amendments and Revision of Laws, 15 November 1988, cited in the
Sandiganbayan Resolution of 9 July 2001).

32 TSN, 18 September 2001, pp. 115-121.

33 4 Record of the Senate 1316, 5 June 1989.

34 Ibid.

35 Roschen v. Ward, 279 U.S. 337, 339, 73 L.Ed. 722, 728 (1929).

36 267 SCRA 682, 721-2 (1997) (emphasis added).

37 Black's Law Dictionary 959 (1990); Lozano v. Martinez, 146 SCRA 324, 338 (1986).

38 G.R. No. 117472, 7 February 1997, 267 SCRA 682.

The Lawphil Project - Arellano Law Foundation

 DISSENTING OPINION

KAPUNAN, J.:

The primary duty of the Court is to render justice. The resolution of the issues brought before it must
be grounded on law, justice and the basic tenets of due process, unswayed by the passions of the
day or the clamor of the multitudes, guided only by its members’ honest conscience, clean hearts
and their unsullied conviction to do what is right under the law.

The issues posed by the instant petition are quite difficult. The task of the Court to resolve the same
is made more daunting because the case involves a former President of the Republic who, in the
eyes of certain sectors of society, deserves to be punished. But the mandate of the Court is to
decide these issues solely on the basis of law and due process, and regardless of the personalities
involved. For indeed, the rule of law and the right to due process are immutable principles that
should apply to all, even to those we hate. As Fr. Joaquin G. Bernas, S.J., a noted constitutionalist,
aptly puts it--

x x x the greater disaster would be if the Supreme Court should heed the clamor for conviction and
convict Estrada even under an unconstitutional law but of the belief that Estrada deserves to be
punished. That would be tantamount to a rule of men and not of law.1

The Basic Facts

The petition before us questions the constitutionality of Republic Act No. 7080 (R.A. No. 7080 or
Plunder Law), as amended by Republic Act No. 7659,2 entitled "An Act Defining and Penalizing the
Crime of Plunder."3 This original petition for certiorari and prohibition against Respondent Third
Division of the Sandiganbayan filed by petitioner Joseph Ejercito Estrada assails Respondent court’s
Resolution, dated July 9, 2001, denying his Motion to Quash the information against him in Criminal
Case No. 26558 for Plunder. Petitioner likewise prays that the Sandiganbayan be prohibited and
enjoined from proceeding with his arraignment and trial in Criminal Case No. 26558 due to the
unconstitutionality of R. A. No. 7080.

On the heels of the finality of the joint decision of this Court in G.R. No. 146710 (Estrada vs.
Desierto, et al.) and in G.R. No. 146738 (Estrada vs. Macapagal-Arroyo), promulgated on April 3,
2001, upholding the constitutionality of President Gloria Macapagal-Arroyo’s assumption of office as
President of the Republic of the Philippines and declaring that the former President Joseph Ejercito
Estrada no longer enjoyed immunity from suit, the Ombudsman filed eight (8) Informations against
Estrada. These cases were Criminal Case No. 26558 (for Plunder); Criminal Case No. 26559 (for
Violation of Sec. 3[a] of Republic Act No. 3019); Criminal Case No. 26560 (for Violation of Sec. 3[a]
of R.A. No. 3019); Criminal Case No. 26561 (for Violation of Sec. 3[e] of R.A. 3019); Criminal Case
No. 26562 (for Violation of Sec. 3[e] of R.A. No. 3019); Criminal Case No. 26563 (for Violation of
Sec. 7[d] of R.A. No. 6713); Criminal Case No. 26564 (for Perjury); and Criminal Case No. 26565
(for Illegal Use of Alias).

The aforementioned informations were raffled to the five divisions of the Sandiganbayan. Criminal
Case No. 26558 was raffled to the Third Division of said court. The amended information against
petitioner charging violations of Section 2, in relation to Section (d) (1) (2) of the statute reads:

That during the period from June, 1998 to January, 2001, in the Philippines, and within the
jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, by himself and in conspiracy
with his co-accused, business associates and persons heretofore named, by taking advantage of his
official position, authority, connection or influence as President of the Republic of the Philippines, did
then and there wilfully, unlawfully and criminally amass, accumulate and acquire ill-gotten wealth,
and unjustly enrich himself in the aggregate amount of P4,097,804,173.17, more or less, through a
combination and series of overt and criminal acts, described as follows:

(a) by receiving, collecting, directly or indirectly, on many instances, so-called "jueteng

money" from gambling operators in connivance with co-accused Jose ‘Jinggoy’ Estrada,
Yolanda T. Ricaforte and Edward Serapio, as witnessed by Gov. Luis ‘Chavit’ Singson,
among other witnesses, in the aggregate amount of FIVE HUNDRED FORTY-FIVE MILLION
PESOS (P545,000.000.00), more or less, in consideration of their protection from arrest or
interference by law enforcers in their illegal "jueteng" activities; and

(b) by misappropriating, converting and misusing for his gain and benefit public fund in the
amount of ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less,
representing a portion of One Hundred Seventy Million Pesos (P170,000,000.00) tobacco
excise tax share allocated for the Province of Ilocos Sur under R.A. No. 7171, in conspiracy
with co-accused Charlie ‘Atong’ Ang, Alma Alfaro, Eleuterio Tan a.k.a. Eleuterio Ramos Tan
or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, as witnessed by Gov. Luis ‘Chavit’ Singson,
among other witnesses; and

(c) by directing, ordering and compelling the Government Service Insurance System (GSIS)
and the Social Security System (SSS) to purchase and buy a combined total of 681,733,000
shares of stock of the Belle Corporation in the aggregate gross value of One Billion Eight
Hundred Forty-Seven Million Five Hundred Seventy Eight Thousand Pesos and Fifty
Centavos(P1,847,578,057.50), for the purpose of collecting for his personal gain and benefit,
as in fact he did collect and receive the sum of ONE HUNDRED EIGHTY NINE MILLION
SEVEN HUNDRED THOUSAND FIFTY SEVEN PESOS (P189,700,000.00) as commission
for said stock purchase; and

(d) by unjustly enriching himself in the amount of THREE BILLION TWO HUNDRED THIRTY
THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE
PESOS AND SEVENTEEN CENTAVOS (P3,233,104,173.17) comprising his unexplained
wealth acquired, accumulated and amassed by him under his account name "Jose Velarde"
with Equitable PCI Bank:

to the damage and prejudice of the Filipino people and the Republic of the Philippines.

CONTRARY TO LAW.4

On April 16 and 17, 2001, the Ombudsman filed an Ex-Parte Manifestation to Withdraw Information
in Criminal Case Nos. 26559, 26560, 26561, 26562 and 26563. Petitioner registered his objection to
the Ombudsman’s motion to withdraw. The divisions of the Sandiganbayan to which said cases were
assigned granted the withdrawal of the informations, save for that in Criminal Case No. 26561. At
present, the Order of the First Division of the Sandiganbayan denying the Ombudsman’s motion to
withdraw in Criminal Case No. 26561 is still under reconsideration.

In Criminal Case No. 26558, petitioner filed on April 11, 2001 an Omnibus Motion for the remand of
the case to the Office of the Ombudsman for: (1) the conduct of a preliminary investigation as
regards specification "d" of the accusations in the information in said case; and (2)
reconsideration/reinvestigation of the offenses in specifications "a," "b" and "c" to enable petitioner to
file his counter-affidavits as well as other necessary documents.

On April 25, 2001, the Third Division of the Sandiganbayan issued a Resolution finding that:

(p)robable cause for the offense of PLUNDER exists to justify issuance of warrants of arrest of
accused former President Joseph Ejercito Estrada, Mayor Jose "Jinggoy" Estrada, Charlie "Atong"
Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a Eleuterio Tan or Eleuterio
Ramon Tan or Mr. Uy and Jane Doe a.k.a. Delia Rajas.
Subsequently, on May 31, 2001, the Third Division of the Sandiganbayan issued a Resolution
denying petitioner’s Omnibus Motion.

On June 15, 2001, petitioner filed a Motion for Reconsideration of said Resolution but the same was
denied in a Resolution of June 25, 2001.

Meanwhile, on June 14, 2001, petitioner filed a Motion to Quash the information in Criminal Case
No. 26558, invoking the following grounds: (1) the facts charged do not constitute an indictable
offense as R.A. No. 7080, the statute on which it is based, is unconstitutional; and (2) the information
charges more than one offense.

The People of the Philippines filed an Opposition thereto on June 21, 2001. Petitioner filed his Reply
to the Opposition on June 28, 2001.

On July 9, 2001, the Third Division of the Sandiganbayan issued its Resolution denying petitioner’s
motion to quash.

Petitioner thus filed the instant petition for certiorari and prohibition, claiming that the Sandiganbayan
committed grave abuse of discretion in denying his motion to quash the information in Criminal Case
No. 26558. Petitioner argues that R.A. No. 7080 is unconstitutional on the following grounds:

I. IT VIOLATES THE DUE PROCESS CLAUSE FOR ITS VAGUENESS

II. IT VIOLATES THE CONSTITUTIONAL RIGHT OF THE ACCUSED TO KNOW THE

NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM

III. IT VIOLATES THE DUE PROCESS CLAUSE AND THE CONSTITUTIONAL

PRESUMPTION OF INNOCENCE BY LOWERING THE QUANTUM OF EVIDENCE
NECESSARY FOR PROVING THE COMPONENT ELEMENTS OF PLUNDER

IV. IT IS BEYOND THE CONSTITUTIONAL POWER OF THE LEGISLATURE TO DELIMIT

THE REASONABLE DOUBT STANDARD AND TO ABOLISH THE ELEMENT OF MENS
REA IN MALA IN SECRIMES BY CONVERTING THESE TO MALA PROHIBITA, IN
VIOLATION OF THE DUE PROCESS CONCEPT OF CRIMINAL RESPONSIBILITY.5

The provisions of law involved

Section 2 of R.A. No. 7080 provides:

Definition of the Crime of Plunder; Penalties. - Any public officer who, by himself or in connivance
with members of his family, relatives by affinity or consanguinity, business associates, subordinates
or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or
series of overt or criminal acts as described in Section 1(d) hereof in the aggregate amount or total
value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall
be punished by reclusion perpetua to death. Any person who participated with the said public officer
in the commission of an offense contributing to the crime of plunder shall likewise be punished for
such offense. In the imposition of penalties, the degree of participation and the attendance of
mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be
considered by the court. The court shall declare any and all ill-gotten wealth and their interests and
other incomes and assets including the properties and shares of stocks derived from the deposit or
investment thereof forfeited in favor of the State. (As amended by Sec. 12, RA No. 7659.)

Section 1(d) of the same law defines "ill-gotten wealth" as "any asset, property, business enterprise
or material possession of any person within the purview of Section Two (2)" hereof, acquired by him
directly or indirectly through dummies, nominees, agents, subordinates, and/or business associates
by any combination or series of the following means or similar schemes:
 1. Through misappropriation, conversion, misuse or malversation of public funds or raids on
the public treasury;

2. By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or

any other form of pecuniary benefit from any person and/or entity in connection with any
government contract or project or by reason of the office or position of the public officer
concerned;

3. By the illegal or fraudulent conveyance or disposition of assets belonging to the National

Government or any of its subdivisions, agencies or instrumentalities or government-owned or
controlled corporations and their subsidiaries;

4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any
other form of interest or participation including the promise of future employment in any
business enterprise or undertaking;

5. By establishing agricultural, industrial or commercial monopolies or other combination

and/or implementation of decrees and orders intended to benefit particular persons or
special interests; or

6. By taking undue advantage of official position, authority, relationship, connection or

influence to unjustly enrich himself or themselves at the expense and to the damage and
prejudice of the Filipino people and the Republic of the Philippines.6

On the other hand, Section 4 states:

Rule of Evidence - For purposes of establishing the crime of plunder, it shall not be necessary to
prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy
to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable
doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.

Petitioner’s theory

Petitioner asserts that R.A. No. 7080 is vague and overbroad on its face, and suffers from structural
deficiency and ambiguity.7 In sum, he maintains that the law does not afford an ordinary person
reasonable notice that his actuation will constitute a criminal offense. More particularly, petitioner
argues that the terms "combination" and "series" are not clearly defined, citing that in a number of
cases, the United States (U.S.) federal courts in deciding cases under the Racketeer Influenced and
Corrupt Organizations Act (RICO law), after which the Plunder Law was patterned, have given
different interpretations to "series of acts or transactions."8 In addition, he terms "raid on the public
treasury," "receiving or accepting a gift," "commission," "kickbacks," "illegal or fraudulent conveyance
or disposition of assets," "monopolies or other combinations," "special interests," "taking undue
advantage of official position," "unjustly enrich" all suffer from overbreadth which is a form of
vagueness.9

In arguing that the law on plunder is vague and impermissibly broad, petitioner points out that the
terms "combination" and ‘series" used in the phrase "any combination or series of the following
means or similar schemes" are not defined under the statute. The use of these terms in the law
allegedly raises several questions as to their meaning and import.

Petitioner posits the following queries: "Does it (referring to the term "series") mean two, three, four,
of the overt or criminal acts listed in Section 1(d)? Would it mean two or more related
enterprises falling under at least two of the means or ‘similar schemes’ listed in the law, or just
a joint criminal enterprise? Would it require substantial identity of facts and participants, or
merely a common pattern of action? Would it imply close connection between acts, or a direct
relationship between the charges? Does the term mean a factual relationship between acts or
merely a common plan among conspirators?"10
The term "combination" is allegedly equally equivocal. According to petitioner, it is not clear from the
law if said term covers time, place, manner of commission, or the principal characters. Thus
petitioner asks: "Does it (referring to the term "combination") include any two or more acts, whether
legal or illegal, or does the law require that the combination must include at least two of the ‘means
or similar schemes’ laid down in R.A. 7080? Does it cover transactions that have occurred in
the same place or area, or in different places, no matter how far apart? Does ‘combination’
include any two or more overt acts, no matter how far apart in time, or does it contemplate acts
committed within a short period of time? Does the ‘combination’ cover the modus operandi of the
crimes, or merely the evidence to be used at the trial?"11

It is also argued that the phrase "pattern of overt or criminal acts indicative of the overall scheme or
conspiracy" adds to the vagueness of the law because "pattern" is not defined therein and is not
included in the definition of the crime of plunder even though it is an essential element of said
crime.12

Petitioner also maintains that the Plunder Law violates the due process clause and the constitutional
presumption of innocence by lowering the quantum of evidence necessary for proving the
component elements of plunder because Section 4 does not require that each and every criminal act
done by the accused in furtherance of the scheme or conspiracy be proved, "it being sufficient to
establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy."13

Finally, petitioner alleges that it is beyond the power of Congress to delimit the reasonable doubt
standard and to abolish the element of mens rea in mala in se crimes by converting these to mala
prohibita, thereby making it easier for the prosecution to prove malversation, bribery, estafa and
other crimes committed by public officers since criminal intent need not be established.14

Considering the infringement to the constitutionally-guaranteed right to due process of an accused,

petitioner contends that R.A. No. 7080 cannot be accorded any presumption of constitutional validity.

Respondents’ theory

On the other hand, Respondents argue that the "particular elements constituting the crime of
plunder" are stated with "definiteness and certainty," as follows:

(1) There is a public officer who acts by himself or in connivance with members of his family,
relatives by affinity or consanguinity, business associates, subordinates or other persons;

(2) There is an amassing, accumulating or acquiring of ill-gotten wealth;

(3) The total amount of ill-gotten wealth so amassed, accumulated or acquired is at least
Fifty Million Pesos (P50,000,000.00); and

(4) The ill-gotten wealth, which is defined as any asset, property, business enterprise or
material possession of any person within the purview of Section Two (2) of R.A. No. 7080,
was acquired by him directly or indirectly through dummies, nominees, agents, subordinates,
and/or business associates by any combination or series of the means or similar schemes
enumerated in Section 1(d).15

Moreover, Respondents maintain that assuming that there is some vagueness in the law, it need not
be declared unconstitutional but may be clarified by judicial construction.16 Respondents further add
that the ordinary import of the terms combination" and "series" should prevail, as can be gleaned
from the deliberations of the Congress in the course of its passage of the law. According to
respondents, "series of overt criminal acts" simply mean a repetition of at least two of any of those
enumerated acts found in Section 1(d) of R.A. 7080. And "combination" means a product of
combining of at least one of any of those enumerated acts described in Section 1(d) with at least one
of any of the other acts so enumerated. Respondents score petitioner for arguing on the basis of
federal courts’ decisions on the RICO law, citing that the U.S. courts have consistently rejected the
contention that said law is void for being vague.17
Respondents deny that the Plunder Law dispenses with the requirement of proof beyond reasonable
doubt. While there may be no necessity to prove each and every other act done by the accused in
furtherance of the scheme to acquire ill-gotten wealth, it is still necessary for the prosecution to
prove beyond reasonable doubt the pattern of overt or criminal acts indicative of the overall scheme
or conspiracy, as well as all the other elements of the offense of plunder.18 Respondents also point
out that conspiracy itself is not punishable under the Plunder Law, which deals with conspiracy as a
means of incurring criminal liability.19

Respondents likewise contend that it is within the inherent powers and wisdom of the legislature to
determine which acts are mala prohibita in the same way that it can declare punishable an act which
is inherently not criminal in nature.20

In conclusion, Respondents assert that petitioner has failed to overcome the presumption of
constitutionality of R.A. No. 7080.

Petitioner’s Reply

Petitioner, in his Reply to Comment, draws attention to Section 4, arguing that the provision states
the "most important element, which is the common thread that ties the component acts together: "a
pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy21 and raises
the following questions:

(a) Reference is made to a "pattern of overt or criminal acts." The disjunctive "or" is used.
Will a pattern of acts, which are overt but not criminal in themselves, be indicative of an
overall unlawful scheme or conspiracy?

(b) Under what specific facts or circumstances will a "pattern" be "indicative" of the overall
unlawful scheme or conspiracy?

(c) Under what specific facts or circumstances will the required "pattern" or "scheme" even
be said to be present or to exist?

(d) When is there an "unlawful scheme or conspiracy?"22

Issues raised in the oral arguments

Oral arguments were heard on September 18, 2001. At said hearing, the Court defined the issues
for resolution as follows:

1.) WHETHER R.A. NO. 7080 IS UNCONSTITUTIONAL FOR BEING VAGUE;

2) WHETHER R.A. NO. 7080 REQUIRES LESS EVIDENCE FOR PROVING THE
PREDICATE CRIMES OF PLUNDER AND THEREFORE VIOLATES THE RIGHT OF THE
ACCUSED TO DUE PROCESS; and

3) WHETHER PLUNDER AS DEFINED IN R.A. NO. 7080 IS A MALUM PROHIBITUM AND

IF SO, WHETHER IT IS WITHIN THE POWER OF CONGRESS TO SO CLASSIFY THE
SAME.23

Thereafter, both parties filed their respective memoranda in which they discussed the points which
they raised in their earlier pleadings and during the hearing.

I believe that there is merit in the petition.

A penal statute which violates constitutional

guarantees of individual rights is void.
Every law enacted by Congress enjoys a presumption of constitutionality,24 and the presumption
prevails in the absence of contrary evidence.25 A criminal statute is generally valid if it does not
violate constitutional guarantees of individual rights.26 Conversely, when a constitutionally
protected right of an individual is in danger of being trampled upon by a criminal statute,
such law must be struck down for being void.27

One of the fundamental requirements imposed by the Constitution upon criminal statutes is that
pertaining to clarity and definiteness. Statutes, particularly penal laws, that fall short of this
requirement have been declared unconstitutional for being vague. This "void-for-vagueness" doctrine
is rooted in the basic concept of fairness as well as the due process clause of the Constitution.

The Constitution guarantees both substantive and procedural due process28 as well as the right of
the accused to be informed of the nature and cause of the accusation against him.29 A criminal
statute should not be so vague and uncertain that "men of common intelligence must necessarily
guess as to its meaning and differ as to its application.30

There are three distinct considerations for the vagueness doctrine. First, the doctrine is designed to
ensure that individuals are properly warned ex ante of the criminal consequences of their conduct.
This "fair notice" rationale was articulated in United States v. Harriss:31

The constitutional requirement of definiteness is violated by a criminal statute that fails to give a
person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.
The underlying principle is that no man shall be held criminally responsible for conduct which he
could not reasonably understand to be proscribed.32

Second, and viewed as more important, the doctrine is intended to prevent arbitrary and
discriminatory law enforcement.33 Vague laws are invariably "standardless" and as such, they
afford too great an opportunity for criminal enforcement to be left to the unfettered discretion of
police officers and prosecutors.34 Third, vague laws fail to provide sufficient guidance to judges who
are charged with interpreting statutes. Where a statute is too vague to provide sufficient guidance,
the judiciary is arguably placed in the position of usurping the proper function of the legislature by
"making the law" rather than interpreting it.35

While the dictum that laws be clear and definite does not require Congress to spell out with
mathematical certainty the standards to which an individual must conform his conduct,36 it is
necessary that statutes provide reasonable standards to guide prospective conduct.37 And where a
statute imposes criminal sanctions, the standard of certainty is higher.38 The penalty
imposable on the person found guilty of violating R.A. No. 7080 is reclusion perpetua to
death.39 Given such penalty, the standard of clarity and definiteness required of R.A. No. 7080
is unarguably higher than that of other laws.40

Void-for-vagueness doctrine
applies to criminal laws.

A view has been proffered that "vagueness and overbreadth doctrines are not applicable to penal
laws."41 These two concepts, while related, are distinct from each other.42 On one hand, the doctrine
of overbreadth applies generally to statutes that infringe upon freedom of speech.43 On the other
hand, the "void-for-vagueness" doctrine applies to criminal laws, not merely those that regulate
speech or other fundamental constitutional rights.44 The fact that a particular criminal statute does
not infringe upon free speech does not mean that a facial challenge to the statute on vagueness
grounds cannot succeed.45

As earlier intimated, the "vagueness doctrine" is anchored on the constitutionally-enshrined right to

due process of law. Thus, as in this case that the "life, liberty and property" of petitioner is involved,
the Court should not hesitate to look into whether a criminal statute has sufficiently complied with the
elementary requirements of definiteness and clarity. It is an erroneous argument that the Court
cannot apply the vagueness doctrine to penal laws. Such stance is tantamount to saying that no
criminal law can be challenged however repugnant it is to the constitutional right to due
process.
While admittedly, penal statutes are worded in reasonably general terms to accomplish the
legislature’s objective of protecting the public from socially harmful conduct, this should not prevent a
vagueness challenge in cases where a penal statute is so indeterminate as to cause the average
person to guess at its meaning and application. For if a statute infringing upon freedom of speech
may be challenged for being vague because such right is considered as fundamental, with more
reason should a vagueness challenge with respect to a penal statute be allowed since the latter
involve deprivation of liberty, and even of life which, inarguably, are rights as important as, if not
more than, free speech.

It has been incorrectly suggested46 that petitioner cannot mount a "facial challenge" to the Plunder
Law, and that "facial" or "on its face" challenges seek the total invalidation of a
statute.47 Citing Broadrick v. Oklahoma,48 it is also opined that "claims of facial overbreadth have
been entertained in cases involving statutes which, by their terms, seek to regulate only spoken
words" and that "overbreadth claims, if entertained at all, have been curtailed when invoked against
ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it is
argued further that "on its face invalidation of statutes has been described as ‘manifestly strong
medicine,’ to be employed ‘sparingly and only as a last resort.’" A reading of Broadrick, however,
shows that the doctrine involved therein was the doctrine of overbreadth. Its application to the
present case is thus doubtful considering that the thrust at hand is to determine whether the Plunder
Law can survive the vagueness challenge mounted by petitioner. A noted authority on constitutional
law, Professor Lockhart, explained that "the Court will resolve them (vagueness challenges) in ways
different from the approaches it has fashioned in the law of overbreadth."49 Thus, in at least two
cases,50 the U.S. courts allowed the facial challenges to vague criminal statutes even if these did not
implicate free speech

In Kolender v. Lawson,51 petitioners assailed the constitutionality of a California criminal statute

which required persons who loiter or wander on the streets to provide a credible and reasonable
identification and to account for their presence when requested by a peace officer under
circumstances that would justify a valid stop. The U.S. Supreme Court held that said statute was
unconstitutionally vague on its face within the meaning of the due process clause of the Fourteenth
Amendment because it encourages arbitrary enforcement by failing to clarify what is contemplated
by the requirement that a suspect provide a "credible and reasonable identification." Springfield vs.
Oklahoma52 on the other hand involved a challenge to a Columbus city ordinance banning certain
assault weapons. The court therein stated that a criminal statute may be facially invalid even if it has
some conceivable application. It went on to rule that the assailed ordinance’s definition of "assault
weapon" was unconstitutionally vague, because it was "fundamentally irrational and impossible to
apply consistently by the buying public, the sportsman, the law enforcement officer, the prosecutor
or the judge."53

It is incorrect to state that petitioner has made "little effort to show the alleged invalidity of the statute
as applied to him, as he allegedly "attacks ‘on their face’ not only §§ 1(d)(1) and (2) of R.A. 7080
under which he is charged, but also its other provisions which deal with plunder committed by illegal
or fraudulent disposition of government assets (§1(d)(3)), acquisition of interest in business
(§1(d)(4)), and establishment of monopolies and combinations or implementation of decrees
intended to benefit particular persons or special interests (§ 1(d)(5))."54 Notably, much of petitioner’s
arguments dealt with the vagueness of the key phrases "combination or series" and "pattern of overt
or criminal acts indicative of the overall unlawful scheme or conspiracy" which go into the very nature
of the crime for which he is charged.

Taking into consideration that the Plunder Law is a penal statute that imposes the supreme penalty
of death, and that petitioner in this case clearly has standing to question its validity inasmuch as he
has been charged thereunder and that he has been for sometime now painfully deprived of his
liberty, it behooves this Court to address the challenge on the validity of R.A. No. 7080.

Men steeped in law find

difficulty in understanding plunder.

The basic question that arises, therefore, is whether the clauses in Section 2--
combination or series of overt or criminal acts as described in Section 1(d) hereof

and Section 1(d), which provides--

x x x by any combination or series of the following means or similar schemes:

1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the

public treasury;

xxx

6) By taking undue advantage of official position, authority, relationship, connection or influence to

unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino
people and the Republic of the Philippines.

as qualified by Section 4 which also speaks of the "scheme or conspiracy to amass, accumulate or
acquire ill-gotten wealth" and of "a pattern of overt or criminal acts indicative of the overall unlawful
scheme or conspiracy," are clear enough that a person "of common intelligence" need not guess at
their meaning and differ as to their application.

The above raise several difficult questions of meaning which go to the very essence of the offense,
such as:

a. How many acts would constitute a "combination or series?"

b. Must the acts alleged to constitute the "combination or series" be similar in nature? Note
that Section 1(d) speaks of "similar schemes" while Section 4 speaks of "the scheme" and of
"a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy."

c. Must the "combination or series" of "overt or criminal acts" involving the aggregate amount
of at least P50 million be conceived as such a scheme or a "pattern of overt or criminal acts"
from inception by the accused?

d. What would constitute a "pattern"? What linkage must there be between and among the
acts to constitute a "pattern"? Need there be a linkage as to the persons who conspire with
one another, and a linkage as to all the acts between and among them?

e. When Section 4 speaks of "indicative of the overall unlawful scheme or conspiracy," would
this mean that the "scheme" or "conspiracy" should have been conceived or decided upon in
its entirety, and by all of the participants?

f. When committed in connivance "with members of his family, relatives by affinity or

consanguinity, business associates, subordinates or other persons" or through "dummies,
nominees, agents, subordinates and/or business associates", would such fact be part of the
"pattern of overt or criminal acts" and of the "overall unlawful scheme or conspiracy" such
that all of those who are alleged to have participated in the crime of plunder must have
participated in each and every act allegedly constituting the crime of plunder? And as in
conspiracy, conspired together from inception to commit the offense?

g. Within what time frame must the acts be committed so as to constitute a "combination or
series"?

I respectfully disagree with the majority that "ascertainable standards and well-defined parameters"
are provided in the law55 to resolve these basic questions.

Even men steeped in the knowledge of the law are in a quandary as to what constitutes plunder. The
Presiding Justice of the Sandiganbayan, Justice Francis Garchitorena, admitted that the justices of
said court "have been quarrelling with each other in finding ways to determine what [they]
understand by plunder."56 Senator Neptali Gonzales also noted during the deliberations of Senate
Bill No. 733 that the definition of plunder under the law is vague. He bluntly declared: "I am afraid
that it might be faulted for being violative of the due process clause and the right to be informed of
the nature and cause of the accusation of an accused.57 Fr. Bernas, for his part, pointed to several
problematical portions of the law that were left unclarified. He posed the question: "How can you
have a 'series' of criminal acts if the elements that are supposed to constitute the series are
not proved to be criminal?"58

The meanings of "combination" and "series"

as used in R.A. No. 7080 are not clear.

Although the law has no statutory definition of "combination" or "series", the majority is of the view
that resort can be had to the ordinary meaning of these terms. Thus, Webster's Third New
International Dictionary gives the meaning of "combination": "the result or product or product of
combining: a union or aggregate made of combining one thing with another."59

In the context of R.A. No. 7080, "combination" as suggested by the Solicitor General means that at
least two of the enumerated acts found in Section 1(d), i.e., one of any of the enumerated acts,
combined with another act falling under any other of the enumerated means may constitute the
crime of plunder. With respect to the term "series," the majority states that it has been understood as
pertaining to "two or more overt or criminal acts falling under the same category"60 as gleaned from
the deliberations on the law in the House of Representatives and the Senate.

Further, the import of "combination" or "series" can be ascertained, the majority insists,61 from the
following deliberations in the Bicameral Conference Committee on May 7, 1991:

REP. ISIDRO: I am just intrigued again by our definition of plunder. We say, THROUGH A
COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE
HEREOF. Now when we say combination, we actually mean to say, if there are two or more means,
we mean to say that number one and two or number one and something else are included, how
about a series of the same act? For example, through misappropriation, conversion, misuse, will
these be included also?

THE CHAIRMAN (REP. GARCIA): Yeah, because we say series.

REP. ISIDRO: Series.

THE CHAIRMAN (REP. GARCIA): Yeah, we include series.

REP. ISIDRO: But we say we begin with a combination.

THE CHAIRMAN: (REP. GARCIA): Yes.

REP. ISIDRO: When we say combination, it seems that-

THE CHAIRMAN (REP. GARCIA): Two.

REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of
one enumeration.

THE CHAIRMAN: (REP. GARCIA): No, no, not twice.

REP. ISIDRO: Not twice?

THE CHAIRMAN (REP. GARCIA): Yes. Combination is not twice—but combination, two acts.

REP. ISIDRO: So in other words, that’s it. When we say combination, we mean two different acts. It
can not be a repetition of the same act.
THE CHAIRMAN (REP. GARCIA): That be referred to series. Yeah.

REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.

THE CHAIRMAN (REP. GARCIA): A series.

REP. ISIDRO: That’s not series. It’s a combination. Because when we say combination or series, we
seem to say that two or more, ‘di ba?

THE CHAIRMAN: (REP. GARCIA): Yes, This distinguishes it, really, from the ordinary crimes. That
is why, I said, that is a very good suggestion because if it is only one act, it may fall under ordinary
crime but we have here a combination or series of overt or criminal acts. So…

HON. ISIDRO: I know what you are talking about. For example, through misappropriation,
conversion, misuse or malversation of public funds who raids the public treasury, now, for example,
misappropriation, if there are a series of misappropriations?

xxx

THE CHAIRMAN (REP. GARCIA): Series. One after the other eh di…

THE CHAIRMAN (SEN TAÑADA): So that would fall under term "series"?

THE CHAIRMAN (REP. GARCIA): Series, oo.

REP. ISIDRO: Now, if it is combination, ano, two misappropriations…

THE CHAIRMAN (REP. GARCIA): It’s not… two misappropriations will not be combination. Series.

REP. ISIDRO: So, it is not a combination?

THE CHAIRMAN (REP. GARCIA): Yes.

REP. ISIDRO: When you say "combination", two different?

THE CHAIRMAN (REP. GARCIA): Yes.

THE CHAIRMAN (SEN. TAÑADA): Two different.

REP. ISIDRO: Two different acts.

THE CHAIRMAN (REP. GARCIA): For example, ha…

REP. ISIDRO: Now a series, meaning, repetition…62

The following deliberations in the Senate are pointed to by the majority63 to show that the words
"combination" and "series" are given their ordinary meaning:

Senator Maceda. In line of our interpellations that sometimes "one" or maybe even "two" acts may
already result in such a big amount, on line 25, would the Sponsor consider deleting the words "a
series of overt or". To read, therefore: "or conspiracy COMMITTED by criminal acts such as".
Remove the idea of necessitating "a series". Anyway, the criminal acts are in the plural.

Senator Tañada. That would mean a combination of two or more of the acts mentioned in this.

The President. Probably, two or more would be….

Senator Maceda. Yes, because ‘a series’ implies several or many’ two or more.

Senator Tañada. Accepted, Mr. President.

xxx

The President. If there is only one, then he has to be prosecuted under the particular crime. But
when we say ‘acts of plunder’ there should be, at least, two or more.

Senator Romulo. In other words, that is already covered by existing laws, Mr. President.64

To my mind, resort to the dictionary meaning of the terms "combination" and "series" as well as
recourse to the deliberations of the lawmakers only serve to prove that R.A. No. 7080 failed to
satisfy the strict requirements of the Constitution on clarity and definiteness. Note that the key
element to the crime of plunder is that the public officer, by himself or in conspiracy with others,
amasses, accumulates, or acquires "ill-gotten wealth" through a "combination or series of overt or
criminal acts" as described in Section 1(d) of the law. Senator Gonzales, during the deliberations in
the Senate, already raised serious concern over the lack of a statutory definition of what constitutes
"combination" or "series", consequently, expressing his fears that Section 2 of R.A. No. 7080 might
be violative of due process:

Senator Gonzales. To commit the offense of plunder, as defined in this Act and while constituting a
single offense, it must consist of a series of overt or criminal acts, such as bribery, extortion,
malversation of public funds, swindling, illegal exaction, and graft or corrupt practices act and like
offenses. Now, Mr. President, I think, this provision, by itself will be vague. I am afraid that it might
be faulted for being violative of the due process clause and the right to be informed of the nature and
cause of accusation of an accused. Because, what is meant by "series of overt or criminal acts"? I
mean, would 2, 3, 4 or 5 constitute a series? During the period of amendments, can we establish a
minimum of overt acts like, for example, robbery in band? The law defines what is robbery in band
by the number of participants therein. In this particular case probably, we can statutorily provide for
the definition of "series" so that two, for example, would that be already a series? Or, three, what
would be the basis for such determination?65(Emphasis supplied.)

The point raised by Senator Gonzales is crucial and well-taken. I share petitioner’s observation that
when penal laws enacted by Congress make reference to a term or concept requiring a quantitative
definition, these laws are so crafted as to specifically state the exact number or percentage
necessary to constitute the elements of a crime. To cite a few:

"Band" – "Whenever more than three armed malefactors shall have acted together in the
commission of an offense, it shall be deemed to have been committed by a band." (Article 14[6],
Revised Penal Code)66

"Conspiracy" – "A conspiracy exists when two or more persons come to an agreement concerning
the commission of a felony and decide to commit it." (Article 8, Revised Penal Code)67

"Illegal Recruitment by a Syndicate" – "Illegal recruitment is deemed committed by a syndicate if

carried out by a group of three (3) or more persons conspiring and/or confederating with one another
in carrying out any unlawful or illegal transaction, enterprise or scheme x x x." (Section 38, Labor
Code)

"Large-scale Illegal Recruitment" – "Illegal recruitment is deemed committed in large scale if

committed against three (3) or more persons individually or as a group." (Section 38, Labor Code)

"Organized/Syndicated Crime Group" – "[M]eans a group of two or more persons collaborating,

confederating or mutually helping one another for purposes of gain in the commission of any crime."
(Article 62 (1)(1a), Revised Penal Code)68
"Swindling by a Syndicate" – "x x x if the swindling (estafa) is committed by a syndicate consisting of
five or more persons formed with the intention of carrying out the unlawful or illegal act, transaction,
enterprise or scheme x x x ." (Section 1, P.D. No. 1689)69

The deliberations of the Bicameral Conference Committee and of the Senate cited by the majority,
consisting mostly of unfinished sentences, offer very little help in clarifying the nebulous concept of
plunder. All that they indicate is that Congress seemingly intended to hold liable for plunder a person
who: (1) commits at least two counts of any one of the acts mentioned in Section 1(d) of R.A. No.
7080, in which case, such person commits plunder by a series of overt criminal acts; or (2) commits
at least one count of at least two of the acts mentioned in Section 1(d), in which case, such person
commits plunder by a combination of overt criminal acts. Said discussions hardly provide a window
as to the exact nature of this crime.

A closer look at the exchange between Representatives Garcia and Isidro and Senator Tañada
would imply that initially, combination was intended to mean "two or more means,"70 i.e., "number
one and two or number one and something else x x x,"71 "two of the enumerated means not twice of
one enumeration,"72 "two different acts."73Series would refer to "a repetition of the same
act."74 However, the distinction was again lost as can be gleaned from the following:

THE CHAIRMAN (REP. GARCIA) Yes. Combination is not twice – but combination, two acts.

REP. ISIDRO. So in other words, that’s it. When we say combination, we mean, two different acts. It
can not be a repetition of the same act.

THE CHAIRMAN (REP. GARCIA). That be referred to series. Yeah.

REP. ISIDRO. No, no. Supposing one act is repeated, so there are two.

THE CHAIRMAN (REP. GARCIA). A series.

REP. ISIDRO. That’s not series. It’s a combination. Because when we say combination or series, we
seem to say that two or more, ‘di ba?

THE CHAIRMAN (REP. GARCIA). Yes. This distinguishes it really the ordinary --- That’s why I said,
that’s a very good suggestion, because if its’ only one act, it may fall under ordinary crime. But we
have here a combination or series, of overt or criminal acts" (Emphasis supplied).75

xxx

THE CHAIRMAN (REP. GARCIA P.) Series. One after the other eh di…

THE CHAIRMAN (SEN. TAÑADA) So, that would fall under the term "series"?

THE CHAIRMAN (REP. GARCIA P) Series, oo.

REP. ISIDRO. Now, if it is combination, ano, two misappropriations…

THE CHAIRMAN (REP. GARCIA) It’s not… two misappropriations will not be combination. Series.

REP. ISIDRO. So, it is not a combination?

THE CHAIRMAN. (REP. GARCIA P.) Yes.

REP. ISIDRO. When we say "combination", two different?

THE CHAIRMAN (REP. GARCIA P.) Yes.

THE CHAIRMAN (SEN. TAÑADA) Two different.

REP. ISIDRO. Two different acts.

THE CHAIRMAN (REP. GARCIA P.) For example, ha…

REP. ISIDRO. Now a series, meaning, repetition…

THE CHAIRMAN (SEN. TAÑADA) Yes.

REP. ISIDRO. With that…

THE CHAIRMAN (REP. GARCIA P.) Thank you.

THE CHAIRMAN (SEN. TAÑADA) So, it could be a series of any of the acts mentioned in
paragraphs 1, 3, 4, 5 of Section 2 (d), or… 1 (d) rather, or a combination of any of the acts
mentioned in paragraph 1 alone, or paragraph 2 alone or paragraph 3 or paragraph 4.

THE CHAIRMAN (REP. GARCIA P.) I think combination maybe…which one? Series?

THE CHAIRMAN (SEN. TAÑADA) Series or combination.

REP. ISIDRO. Which one, combination or series or series or combination?

THE CHAIRMAN (SEN. TAÑADA) Okay. Ngayon doon sa definition, ano, Section 2, definition, doon
sa portion ng… Saan iyon? As mentioned, as described…

THE CHAIRMAN (REP. GARCIA P.) Described. I think that is…

THE CHAIRMAN (SEN. TAÑADA) … better than "mentioned". Yes.

THE CHAIRMAN (REP. GARCIA P.) Okay?

REP. ISIDRO. Very good.

THE CHAIRMAN. (SEN. TAÑADA) Oo, marami pong salamat.

THE CHAIRMAN (REP. GARCIA P.) Maraming salamat po.

The meeting was adjourned at 1:33 p.m."76 (Emphasis supplied.)

The aforequoted deliberations, especially the latter part thereof, would show a dearth of focus to
render precise the definition of the terms. Phrases were uttered but were left unfinished. The
examples cited were not very definite. Unfortunately, the deliberations were apparently adjourned
without the Committee members themselves being clear on the concept of series and combination.

Moreover, if "combination" as used in the law simply refers to the amassing, accumulation and
acquisition of ill-gotten wealth amounting to at least P50 Million through at least two of the means
enumerated in Section 1(d), and "series," to at least two counts of one of the modes under said
section, the accused could be meted out the death penalty for acts which, if taken separately, i.e.,
not considered as part of the combination or series, would ordinarily result in the imposition of
correctional penalties only. If such interpretation would be adopted, the Plunder law would be so
oppressive and arbitrary as to violate due process and the constitutional guarantees against cruel or
inhuman punishment.77 The penalty would be blatantly disproportionate to the offense. Petitioner’s
examples illustrate this absurdity:
a. One act of indirect bribery (penalized under Art. 211 of the Revised Penal Code with prision
correccional in its medium and maximum periods),

combined with -

one act of fraud against the public treasury (penalized under Art. 213 of the Revised Penal Code
with prision correccional in its medium period to prision mayor in its minimum period).

equals –

Plunder (punished by reclusion perpetua to death plus forfeiture of assets under R. A. 7080)

b. One act of prohibited transaction (penalized under Art. 215 of the Revised Penal Code with prision
correccional in its minimum period or a fine ranging from P200 to P1,000 or both).

combined with –

one act of establishing a commercial monopoly (penalized under Art. 186 of Revised Penal Code
with prision correccional in its minimum or a fine ranging from P200 to P6,00, or both.

equals –

Plunder (punished by reclusion perpetua to death, and forfeiture of assets under R.A. 7080).

c. One act of possession of prohibited interest by a public officer (penalized with prision correccional
in its minimum period or a fine of P200 to P1,000, or both under Art. 216 of the Revised Penal
Code).

combined with –

one act of combination or conspiracy in restraint of trade (penalized under Art. 186 of the Revised
Penal Code with prision correccional in its minimum period, or a fine of P200 to P1,000, or both),

equals –

plunder (punished by reclusion perpetua to death, and forfeiture of assets).78

The argument that higher penalties may be imposed where two or more distinct criminal acts are
combined and are regarded as special complex crimes, i.e., rape with homicide, does not justify the
imposition of the penalty of reclusion perpetua to death in case plunder is committed. Taken singly,
rape is punishable by reclusion perpetua;79and homicide, by reclusion temporal.80 Hence, the
increase in the penalty imposed when these two are considered together as a special complex crime
is not too far from the penalties imposed for each of the single offenses. In contrast, as shown by the
examples above, there are instances where the component crimes of plunder, if taken separately,
would result in the imposition of correctional penalties only; but when considered as forming part of a
series or combination of acts constituting plunder, could be punishable by reclusion perpetua to
death. The disproportionate increase in the penalty is certainly violative of substantive due process
and constitute a cruel and inhuman punishment.

It may also be pointed out that the definition of "ill-gotten wealth" in Section 1(d) has reference to the
acquisition of property (by the accused himself or in connivance with others) "by any combination or
series" of the "means" or "similar schemes" enumerated therein, which include the following:

xxx

4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other
forms of interest or participation including the promise of future employment or any business
enterprise or undertakings;
5. By establishing agricultural, industrial or commercial monopolies or other combination and/or
implementation of decrees and orders intended to benefit particular persons or special interests;

xxx

The above-mentioned acts are not, by any stretch of the imagination, criminal or illegal acts. They
involve the exercise of the right to liberty and property guaranteed by Article III, Section 1 of the
Constitution which provides that "No person shall be deprived of life, liberty or property without due
process of law, nor shall any person be denied the equal protection of the laws." Receiving or
accepting any shares of stock is not per se objectionable. It is in pursuance of civil liberty, which
includes "the right of the citizen to be free to use his faculties in all lawful ways; x x x to earn his
livelihood by any lawful calling; to pursue any avocation, and/or that purpose, to enter into all
contracts which may be proper, necessary and essential to his carrying out these purposes to a
successful conclusion.81 Nor is there any impropriety, immorality or illegality in establishing
agricultural, industrial or commercial monopolies or other combination and/or implementation of
decrees and orders even if they are intended to benefit particular persons or special interests. The
phrases "particular persons" and "special interests" may well refer to the poor,82the indigenous
cultural communities,83 labor,84 farmers,85 fisherfolk,86 women,87 or those connected with education,
science and technology, arts, culture and sports.88

In contrast, the monopolies and combinations described in Article 186 of the Revised Penal Code
are punishable because, as specifically defined therein, they are "on restraint of trade or commerce
or to prevent by artificial means of free competition in the market, or the object is "to alter the price"
of any merchandise "by spreading false rumors," or to manipulate market prices in restraint of trade.
There are no similar elements of monopolies or combinations as described in the Plunder Law to
make the acts wrongful.

If, as interpreted by the Solicitor General, "series" means a "repetition" or pertains to "two or more"
acts, and "combination as defined in the Webster’s Third New International Dictionary is "the result
or product of combining one thing with another,"89 then, the commission of two or more acts falling
under paragraphs (4) and (5) of Section 1(d) would make innocent acts protected by the Constitution
as criminal, and punishable by reclusion perpetua to death.

R.A. No. 7080 does not define "pattern,"

an essential element of the crime of plunder.

Granting arguendo that, as asserted by the majority, "combination" and "series" simplistically mean
the commission of two or more of the acts enumerated in Section 1(d),90 still, this interpretation does
not cure the vagueness of R.A. No. 7080. In construing the definition of "plunder," Section 2 of R.A.
No. 7080 must not be read in isolation but rather, must be interpreted in relation to the other
provisions of said law. It is a basic rule of statutory construction that to ascertain the meaning of a
law, the same must be read in its entirety.91 Section 1 taken in relation to Section 4 suggests that
there is something to plunder beyond simply the number of acts involved and that a grand scheme to
amass, accumulate or acquire ill-gotten wealth is contemplated by R.A. No. 7080. Sections 1 and 2
pertain only to the nature and quantitative means or acts by which a public officer, by himself or in
connivance with other persons, "amasses, accumulates or acquires ill-gotten wealth." Section 4, on
the other hand, requires the presence of elements other than those enumerated in Section 2 to
establish that the crime of plunder has been committed because it speaks of the necessity to
establish beyond reasonable doubt a "pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy."

Clearly, it will not suffice that the "illegal wealth" amassed is at least Fifty Million Pesos and that this
was acquired by any two or more of the acts described in Section 1(d); it is necessary that these
acts constitute a "combination or series" of acts done in furtherance of "the scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth", and which constitute "a pattern of overt or criminal
acts indicative of the overall scheme or conspiracy."

That pattern is an essential element of the crime of plunder is evident from a reading of the assailed
law in its entirety. It is that which would distinguish plunder from isolated criminal acts punishable
under the Revised Penal Code and other laws, for without the existence a "pattern of overt or
criminal acts indicative of the overall scheme or conspiracy" to acquire ill-gotten wealth, a person
committing several or even all of the acts enumerated in Section 1(d) cannot be convicted for
plunder, but may be convicted only for the specific crimes committed under the pertinent provisions
of the Revised Penal Code or other laws.

For this reason, I do not agree that Section 4 is merely a rule of evidence or a rule of procedure. It
does not become such simply because its caption states that it is, although its wording indicates
otherwise. On the contrary, it is of substantive character because it spells out a distinctive element of
the crime which has to be established, i.e., an overall unlawful "scheme or conspiracy" indicated by a
"pattern of overt or criminal acts" or means or similar schemes "to amass, accumulate or acquire ill-
gotten wealth."

The meaning of the phrase "pattern of overt or criminal acts indicative of the overall unlawful scheme
or conspiracy," however, escapes me. As in "combination" and "series," R.A. No. 7080 does not
provide a definition of "pattern" as well as "overall unlawful scheme." Reference to the legislative
history of R.A. No. 7080 for guidance as to the meanings of these concepts would be unavailing,
since the records of the deliberations in Congress are silent as to what the lawmakers mean by
these terms.

Resort to the dictionary meanings of "pattern" and "scheme" is, in this case, wholly inadequate.
These words are defined as:

pattern: an arrangement or order of things or activity.92

scheme: design; project; plot.93

At most, what the use of these terms signifies is that while multiplicity of the acts (at least two or
more) is necessary, this is not sufficient to constitute plunder. As stated earlier, without the element
of "pattern" indicative of an "overall unlawful scheme," the acts merely constitute isolated or
disconnected criminal offenses punishable by the Revised Penal Code or other special laws.

The commission of two or more of the acts falling under Section 1(d) is no guarantee that they fall
into a "pattern" or "any arrangement or order." It is not the number of acts but the relationship that
they bear to each other or to some external organizing principle that renders them "ordered" or
"arranged":

A pattern is an arrangement or order of things, or activity, and the mere fact that there are a number
of predicates is no guarantee that they fall into an arrangement or order. It is not the number of
predicates but the relationship that they bear to each other or to some external organizing principle
that renders them ‘ordered’ or ‘arranged.’ 94

In any event, it is hardly possible that two predicate acts can form a pattern:

The implication is that while two acts are necessary, they may not be sufficient. Indeed, in common
parlance, two of anything will not generally form a ‘pattern.’95

In H. J. Inc. v. Northwestern Bell Telephone Co. et al.96 (hereinafter referred to as Northwestern), the
U.S. Court reiterated the foregoing doctrine:

xxx Nor can we agree with those courts that have suggested that a pattern is established merely by
proving two predicate acts.97

Respondents’ metaphorical illustration of "pattern" as a wheel with spokes (the overt or criminal acts
of the accused) meeting at a common center (the acquisition of ill-gotten wealth) and with a rim (the
overall unlawful scheme or conspiracy) of the wheel enclosing the spokes, is off tangent. Their
position that two spokes suffice to make a wheel, even without regard to the relationship the spokes
bear to each other clearly demonstrates the absurdity of their view, for how can a wheel with only
two spokes which are disjointed function properly?

That "pattern" is an amorphous concept even in U.S. jurisprudence where the term is reasonably
defined is precisely the point of the incisive concurring opinion of Justice Antonin Scalia
in Northwestern where he invited a constitutional challenge to the RICO law on "void-for-vagueness"
ground.98 The RICO law is a federal statute in the United States that provides for both civil and
criminal penalties for violation therefor. It incorporates by reference twenty-four separate federal
crimes and eight types of state felonies.99 One of the key elements of a RICO violation is that the
offender is engaged in a "pattern of racketeering activity."100 The RICO law defines the phrase
"pattern of racketeering activity" as requiring "at least two acts of racketeering activity, one of which
occurred after the effective date of 18 USCS § 1961, and within ten years (excluding any period of
imprisonment) after the commission of a prior act of racketeering activity."101 Incidentally, the Solicitor
General claims that R.A. No. 7080 is an entirely different law from the RICO law. The deliberations in
Congress reveal otherwise. As observed by Rep. Pablo Garcia, Chairman of the House of
Representatives Committee on Justice, R.A. No. 7080 was patterned after the RICO law.102

In Northwestern, conceding that "[the U.S. Congress] has done nothing . . . further to illuminate
RICO’s key requirement of a pattern of racketeering," the U.S. Supreme Court, through Justice
William J. Brennan, Jr., undertook the task of developing a meaningful concept of "pattern" within the
existing statutory framework.103Relying heavily on legislative history, the US Supreme Court in that
case construed "pattern" as requiring "continuity plus relationship."104 The US Supreme Court
formulated the "relationship requirement" in this wise: "Criminal conduct forms a pattern if it
embraces criminal acts that have the same or similar purposes, results, participants, victims, or
methods of commission, or otherwise are interrelated by distinguishing characteristics and are not
isolated events."105 Continuity is clarified as "both a closed and open-ended concept, referring either
to a closed period of repeated conduct, or to past conduct that by its nature projects into the future
with a threat of repetition."106

In his separate concurring opinion, Justice Scalia rejected the majority’s formulation. The "talismanic
phrase" of "continuity plus relationship" is, as put by Justice Scalia, about as helpful as advising the
courts that "life is a fountain." He writes:

x x x Thus, when §1961(5) says that a pattern "requires at least two acts of racketeering activity" it is
describing what is needful but not sufficient. (If that were not the case, the concept of "pattern" would
have been unnecessary, and the statute could simply have attached liability to "multiple acts of
racketeering activity"). But what that something more is, is beyond me. As I have suggested, it is
also beyond the Court. Today’s opinion has added nothing to improve our prior guidance, which has
created a kaleidoscope of Circuit positions, except to clarify that RICO may in addition be violated
when there is a "threat of continuity." It seems to me this increases rather than removes the
vagueness. There is no reason to believe that the Court of Appeals will be any more unified in the
future, than they have in the past, regarding the content of this law.

That situation is bad enough with respect to any statute, but it is intolerable with respect to RICO.
For it is not only true, as Justice Marshall commented in Sedima, S.P.R.L. vs. Imrex Co., 473 U.S.
479 x x x, that our interpretation of RICO has "quite simply revolutionize[d] private litigation" and
"validate[d] the federalization of broad areas of state common law of frauds," x x x so that clarity and
predictability in RICO’s civil applications are particularly important; but it is also true that RICO, since
it has criminal applications as well, must, even in its civil applications, possess the degree of
certainty required for criminal laws x x x. No constitutional challenge to this law has been raised in
the present case, and so that issue is not before us. That the highest court in the land has been
unable to derive from this statute anything more than today’s meager guidance bodes ill for the day
when that challenge is presented.107

It bears noting that in Northwestern the constitutionality of the RICO law was not
challenged.108 After Northwestern,the U.S. Supreme Court has so far declined the opportunity to
hear cases in which the void-for-vagueness challenge to the pattern requirement was raised.109
Admittedly, at the district courts level, the state statutes (referred to as Little RICOS)110 have so far
successfully survived constitutional challenge on void-for-vagueness ground. However, it must be
underscored that, unlike R.A. No. 7080, these state anti-racketeering laws have invariably
provided for a reasonably clear, comprehensive and understandable definition of
"pattern."111 For instance, in one state, the pattern requirement specifies that the related predicate
acts must have, among others, the same or similar purpose, result, principal, victims or methods of
commission and must be connected with "organized crime.112 In four others, their pattern
requirement provides that two or more predicate acts should be related to the affairs of the
enterprise, are not isolated, are not closely related to each other and connected in point of time and
place, and if they are too closely related, they will be treated as a single act.113 In two other states,
pattern requirements provide that if the acts are not related to a common scheme, plan or purpose, a
pattern may still exist if the participants have the mental capacity required for the predicate acts and
are associated with the criminal enterprise.114

All the foregoing state statutes require that the predicate acts be related and that the acts occur
within a specified time frame.

Clearly, "pattern" has been statutorily defined and interpreted in countless ways by circuit courts in
the United States. Their divergent conclusions have functioned effectively to create variant criminal
offenses.115 This confusion has come about notwithstanding that almost all these state laws have
respectively statutorily defined "pattern". In sharp contrast, R.A. No. 7080, as earlier pointed out,
lacks such crucial definition. As to what constitutes pattern within the meaning of R.A. No. 7080 is
left to the ad hoc interpretation of prosecutors and judges. Neither the text of R.A. No. 7080 nor
legislative history afford any guidance as to what factors may be considered in order to prove
beyond reasonable doubt "pattern of overt or criminal acts indicative of the overall unlawful scheme
or conspiracy."

Be that as it may, it is glaringly fallacious to argue that "series" simply means a "repetition" or
"pertaining to two or more" and "combination" is the "result or product or product of combining."
Whether two or more or at least three acts are involved, the majority would interpret the phrase
"combinations' or "series" only in terms of number of acts committed. They
entirely overlook or ignore Section 4 which requires "a pattern of overt of criminal acts indicative of
the overall unlawful scheme or conspiracy" to convict.

If the elements of the offense are as what the majority has suggested, the crime of plunder could
have been defined in the following manner:

Where a public official, by himself or in conspiracy with others, amasses or acquires money or
property by committing two or more acts in violation of Section 3 of the Anti-Graft and Corrupt
Practices Act (R.A. 3019), or Articles 210, 211, 212, 213, 214, 215, 216 and 217 of the Revised
Penal Code, he shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to
death.

The above would be a straightforward and objective definition of the crime of plunder. However, this
would render meaningless the core phrases "a combination or series of" "overt or criminal acts
indicative of the overall unlawful scheme or conspiracy," or the phrase "any combination or series of
the following means or similar schemes" or "a pattern of overt or criminal acts indicative of the
overall unlawful scheme or conspiracy."

But that obviously is not the definition of the crime of plunder under R.A. 7080. There is something
more. A careful reading of the law would unavoidably compel a conclusion that there should be a
connecting link among the "means or schemes" comprising a "series or combination" for the purpose
of acquiring or amassing "ill-gotten wealth." The bond or link is an "overall unlawful scheme or
conspiracy mentioned in Section 4. The law contemplates a combination or series of criminal acts in
plunder done by the accused "in furtherance of the scheme or conspiracy to amass, accumulate or
acquire ill-gotten wealth." It does not postulate acts committed randomly, separately or
independently or sporadically. Otherwise stated, if the legislature intended to define plunder as
the acquisition of ill-gotten wealth in the manner espoused by the majority, the use in R.A. 7080 of
such words and phrases as "combination" and "series of overt or criminal acts" xxx "in furtherance of
the scheme or conspiracy" is absolutely pointless and meaningless.

R.A. No. 7080 makes it possible for a person

conspiring with the accused in committing
one of the acts constituting the charge
of plunder to be convicted for the same crime.

Section 2 of R.A. No. 7080 states that "[a]ny person who participated with the said public officer in
the commission of an offense contributing to the crime of plunder shall likewise be punished for such
offense. In the imposition of penalties, the degree of participation and the attendance of mitigating
and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the
court." Both parties share the view that the law as it is worded makes it possible for a person who
participates in the commission of only one of the component crimes constituting plunder to be liable
as co-conspirator for plunder, not merely the component crime in which he participated.116 While
petitioner concedes that it is easy to ascertain the penalty for an accomplice or accessory under R.A.
No. 7080, such is not the case with respect to a co-principal of the accused.117 In other words, a
person who conspires with the accused in the commission of only one of the component crimes may
be prosecuted as co-principal for the component crime, or as co-principal for the crime of plunder,
depending on the interpretation of the prosecutor. The unfettered discretion effectively bestowed
on law enforcers by the aforequoted clause in determining the liability of the participants in the
commission of one or more of the component crimes of a charge for plunder undeniably poses the
danger of arbitrary enforcement of the law.118

R.A. No. 7080 does not clearly state

the prescriptive period of the crime of plunder.

Section 6 of R.A. No. 7080 provides that the crime punishable under said Act shall prescribe in
twenty (20) years. Considering that the law was designed to cover a "combination or series of overt
or criminal acts," or "a pattern of overt or criminal acts," from what time shall the period of
prescription be reckoned? From the first, second, third or last act of the series or pattern? What shall
be the time gap between two succeeding acts? If the last act of a series or combination was
committed twenty or more years after the next preceding one, would not the crime have prescribed,
thereby resulting in the total extinction of criminal liability under Article 89(b) of the Revised Penal
Code? In antithesis, the RICO law affords more clarity and definiteness in describing "pattern of
racketeering activity" as "at least two acts of racketeering activity, one of which occurred within ten
years (excluding any period of imprisonment) after the commission of a prior act of racketeering
activity."119119 119 The U.S. state statutes similarly provide specific time frames within which
racketeering acts are committed.

The Solicitor General enjoins the Court to rectify the deficiencies in the law by judicial construction.
However, it certainly would not be feasible for the Court to interpret each and every ambiguous
provision without falling into the trap of judicial legislation. A statute should be construed to
avoid constitutional question only when an alternative interpretation is possible from its
language.120 Borrowing from the opinion of the court121 in Northwestern,122 the law "may be a poorly
drafted statute; but rewriting it is a job for Congress, if it so inclined, and not for this Court." But
where the law as the one in question is void on its face for its patent ambiguity in that it lacks
comprehensible standards that men of common intelligence must necessarily guess at its meaning
and differ as to its application, the Court cannot breathe life to it through the guise of construction.

R.A. No. 7080 effectively eliminates mens rea

or criminal intent as an element of the crime of plunder.

Section 4 provides that for the purpose of establishing the crime of plunder, "it shall not be
necessary to prove each and every criminal act done by the accused in furtherance of the scheme or
conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond
reasonable a pattern of overt or criminal acts indicative of the overall unlawful scheme or
conspiracy."
The majority would interpret this section to mean that the prosecution has the burden of "showing a
combination or series resulting in the crime of plunder." And, once the minimum requirements for a
combination or a series of acts are met, there is no necessity for the prosecution to prove each and
every other act done by the accused in furtherance of the scheme or conspiracy to amass,
accumulate, or acquire ill-gotten wealth.123

By its language, Section 4 eliminates proof of each and every component criminal act of plunder by
the accused and limits itself to establishing just the pattern of overt or criminal acts indicative of
unlawful scheme or conspiracy. The law, in effect, penalizes the accused on the basis of a proven
scheme or conspiracy to commit plunder without the necessity of establishing beyond reasonable
doubt each and every criminal act done by the accused in the crime of plunder. To quote Fr. Bernas
again: "How can you have a ‘series’ of criminal acts if the elements that are supposed to constitute
the series are not proved to be criminal?"124

Moreover, by doing away with proof beyond reasonable doubt of each and every criminal act done
by the accused in the furtherance of the scheme or conspiracy to acquire ill-gotten wealth, it being
sufficient just to prove a pattern of overt or criminal acts indicative of the overall unlawful scheme or
conspiracy, the Plunder Law effectively eliminated the mens rea or criminal intent as an element of
the crime. Because of this, it is easier to convict for plunder and sentence the accused to death than
to convict him for each of the component crimes otherwise punishable under the Revised Penal
Code and other laws which are bailable offenses. The resultant absurdity strikes at the very heart if
the constitutional guarantees of due process and equal protection.

Plunder is a malum in se.

The acts enumerated in Section 1(d) are mostly defined and penalized by the Revised Penal Code,
e.g. malversation, estafa, bribery and other crimes committed by public officers. As such, they are by
nature mala in secrimes. Since intent is an essential element of these crimes, then, with more
reason that criminal intent be established in plunder which, under R.A. No. 7659, is one of the
heinous crimes125 as pronounced in one of its whereas clauses.126

The fact that the acts enumerated in Section 1(d) of R.A. 7080 were made criminal by special law
does not necessarily make the same mala prohibita where criminal intent is not essential, although
the term refers generally to acts made criminal by special laws. For there is a marked difference
between the two. According to a well-known author on criminal law:

There is a distinction between crimes which are mala in se, or wrongful from their nature, such as
theft, rape, homicide, etc., and those that are mala prohibita, or wrong merely because prohibited by
statute, such as illegal possession of firearms.

Crimes mala in se are those so serious in their effects on society as to call for almost unanimous
condemnation of its members; while crimes mala prohibita are violations of mere rules of
convenience designed to secure a more orderly regulation of the affairs of society. (Bouvier’s Law
Dictionary, Rawle’s 3rd Revision)

(1) In acts mala in se, the intent governs; but in those mala prohibit the only inquiry is, has the law
been violated? (People vs. Kibler, 106 N.Y., 321, cited in the case of U.S. vs. Go Chico, 14 Phil.
132)

Criminal intent is not necessary where the acts are prohibited for reasons of public policy, as in
illegal possession of firearms. (People vs. Conosa, C.A., 45 O.G. 3953)

(2) The term mala in se refers generally to felonies defined and penalized by the Revised Penal
Code. When the acts are inherently immoral, they are mala in se, even if punished by special laws.
On the other hand, there are crimes in the Revised Penal Code which were originally defined and
penalized by special laws. Among them are possession and use of opium, malversation, brigandage,
and libel.127
The component acts constituting plunder, a heinous crime, being inherently wrongful and immoral,
are patently mala in se, even if punished by a special law and accordingly, criminal intent must
clearly be established together with the other elements of the crime; otherwise, no crime is
committed. By eliminating mens rea, R.A. 7080 does not require the prosecution to prove beyond
reasonable doubt the component acts constituting plunder and imposes a lesser burden of proof on
the prosecution, thus paving the way for the imposition of the penalty of reclusion perpetua to death
on the accused, in plain violation of the due process and equal protection clauses of the
Constitution. Evidently, the authority of the legislature to omit the element of scienter in the proof of a
crime refers to regulatory measures in the exercise of police power, where the emphasis of the law
is to secure a more orderly regulations of the offense of society, rather than the punishment of the
crimes. So that in mala prohibita prosecutions, the element of criminal intent is a requirement for
conviction and must be provided in the special law penalizing what are traditionally mala in
se crimes. As correctly pointed out by petitioner,128 citing U.S. Supreme Court decisions, the Smith
Act was ruled to require "intent" to advocate129 and held to require knowledge of illegal
advocacy.130 And in another case,131 and ordinance making illegal the possession of obscene books
was declared unconstitutional for lack of scienter requirement.

Mens rea is a substantive due process requirement under the Constitution, and this is a limitation
on police power. Additionally, lack of mens rea or a clarifying scienter requirement aggravates the
vagueness of a statute.

In Morisette v. U.S.132 the U.S. Supreme Court underscored the stultifying effect of eliminating mens
rea, thus:

The Government asks us by a feat of construction radically to change the weights and balances in
the scales of justice. The purpose and obvious effect of doing away with the requirement of a guilty
intent is to ease the prosecution’s party to conviction, to strip the defendant of such benefit as he
derived at common law from innocence of evil purpose, and to circumscribe the freedom heretofore
allowed juries. Such a manifest impairment of the immunities of the individual should not be
extended to common law crimes on judicial initiative.

In the same breath, Justice Florenz Regalado expreses serious doubts as to the authority of the
legislature to complex mala in se crimes with mala prohibita, saying:

x x x although there has been a tendency to penalize crimes under special laws with penalties
"borrowed" from the Code, there is still the question of legislative authority to consolidate crimes
punished under different statutes. Worse, where one is punished under the Code and the other by
the special law, both of these contingencies had not been contemplated when the concept of a delito
complejo was engrafted into the Code.133

Petitioner is not estopped from questioning

the constitutionality of R.A. No. 7080.

The case at bar has been subject to controversy principally due to the personalities involved herein.
The fact that one of petitioner’s counsels134 was a co-sponsor of the Plunder Law135 and petitioner
himself voted for its passage when he was still a Senator would not in any put him in estoppel to
question its constitutionality. The rule on estoppel applies to questions of fact, not of
law.136 Moreover, estoppel should be resorted to only as a means of preventing injustice.137 To hold
that petitioner is estopped from questioning the validity of R.A. No. 7080 because he had earlier
voted for its passage would result in injustice not only to him, but to all others who may be held liable
under this statute. In People vs. Vera,138 citing the U.S. case of Attorney General v. Perkins, the
Court held:

x x x The idea seems to be that the people are estopped from questioning the validity of a law
enacted by their representatives; that to an accusation by the people of Michigan of usurpation upon
their government, a statute enacted by the people of Michigan is an adequate statute relied on in
justification is unconstitutional, it is a statute only in form, and lacks the force of law, and is of no
more saving effect to justify action under it it had never been enacted. the constitution is the
supreme law, and to its behests the courts, the legislature, and the people must bow. x x x139
The Court should not sanction the use of an equitable remedy to defeat the ends of justice by
permitting a person to be deprived of his life and liberty under an invalid law.

Undoubtedly, the reason behind the enactment of R.A. 7080 is commendable. It was a response to
the felt need at the time that existing laws were inadequate to penalize the nature and magnitude of
corruption that characterized a "previous regime."140 However, where the law, such as R.A. 7080, is
so indefinite that the line between innocent and condemned conduct becomes a matter of
guesswork, the indefiniteness runs afoul of due process concepts which require that persons be
given full notice of what to avoid, and that the discretion of law enforcement officials, with the
attendant dangers of arbitrary and discriminatory enforcement, be limited by explicit legislative
standards.141 It obfuscates the mind to ponder that such an ambiguous law as R.A. No. 7080 would
put on the balance the life and liberty of the accused against whom all the resources of the State are
arrayed. It could be used as a tool against political enemies and a weapon of hate and revenge by
whoever wields the levers of power.

I submit that the charge against petitioner in the Amended Information in Criminal Case No. 26558
does not constitute "plunder" under R.A. No. 7080, as amended by R.A. No. 7659. If at all, the acts
charged may constitute offenses punishable under the Anti-Graft and Corrupt Practices Act (R.A.
No. 3019) or the Revised Penal Code. Hence, the information charging petitioner with plunder must
be quashed. Such quashal, however, should be without prejudice to the filing of new informations for
acts under R.A. No. 3019, of the Revised Penal Code and other laws. Double jeopardy would not
bar the filing of the same because the dismissal of the case is made with the express consent of the
petitioner-accused.142

In view of the foregoing, I vote to GRANT the petition.

Footnotes

1Joaquin G. Bernas, S.J., Prejudging the Supreme Court, in his column "Sounding
Board", Today, September 26, 2001, p. 6.

2 An Act to Impose the Death Penalty on Certain Heinous Crimes, amending for that purpose
the Revised Penal Code and Other Special Penal Laws, namely: Dangerous Drugs Act,
Crime of Plunder, and Anti-Carnapping Act (1993).

3 87 O.G. 38, pp. 5488-5490 (1991).

4 Annex "C" of Petition.

5 Amended Petition, p. 8.

6 Section 1(d).

7 Memorandum for Petitioner, p.11.

8 Amended Petition., pp. 13-17; Memorandum for Petitioner, pp. 16-24.

According to petitioners:

a. While American federal courts in the First Circuit in the U.S. have defined "series
of acts or transactions" for purposes of Rule 8(b) of the Federal Rules of Criminal
Procedure to refer only to "joint criminal enterprise" [U.S. v. Turkette (1980, CA 1
Mass. 632 F 2d 896)] under a common scheme [U.S. v. J. Tirocchi & Sons,
Inc. (1960 DC RI) 187 F. Supp. 778], the courts in the Second Circuit insist that
"series of acts and transactions" should mean that there should be "connection
 between the offenses" [U.S. v. Charney (1962, SD BY) 211 F. Supp. 904] or "direct
relationship between counts" [U.S. v. Haim (1963 SD NY), 218 F. Supp. 922] or
"substantial identity of facts and participants" [U.S. v. Olin Corp. (1979, WD NY),
465 S. Supp. 1120].

b. Still on the U.S. Federal courts, the courts in the Third Circuit define "series of
acts" following the "direct relationship between acts" standard of the Second
Circuit; for example, U.S. v. Stafford (1974, ED Pa.), 382 F. Supp. 1401) using
"factual relationship between acts"; U.S. v. Slawik (1975, DC Del.) 408 F. Supp.
190, using "connection between charges"; U.S. v. Cohen (1978, ED Pa.) 444 F.
Supp. 1314, using "direct relationship between offenses"; and U.S. v. Serubo
(1978, ED Pa.) 460 F. Supp. 689), using "direct relationship between offenses",
but the federal courts in the Fourth Circuit follow the "common scheme" standard,
as in Rakes v. U.S. (169 F2d 730).

c. The Sixth Circuit courts define "series" to mean "common scheme" (e.g. U.S. v.
Russo (480 F2d 1228) and so do the courts in the Seventh Circuit (e.g. U.S. v.
Scott, (1969, CA 7 Ill.) (413 F2d 932), and Eighth Circuit Courts (e.g. Haggard v.
U.S. (1966, CA 8 Mo.) 369 F2d 968), but the courts in the Fifth Circuit follow the
"close connection between acts" standard, (e.g. U.S. v. Laca (1974 CA 5 Tex) 593
F2d 615) or "substantial identity of facts and participants" (e.g. U.S. v. Levine
(1977 CA 5 Fla.) 546 F2d 658; U.S. v. Marionneaux (1975 CA 5 La.) 514 F2d 1244)
together with federal courts in the Ninth Circuit (e.g. U.S. v. Ford (1980 CA 9 Cal..)
632 F2d 1354) and those in the District of Columbia Circuit (U.S. v. Jackson
(1977) 562 F2d 789; U.S. v. Bachman, (1958 DC Dist. Col.) 164 F. Suppl. 898).
[Amended Petition, pp. 14-16; Memorandum for Petitioner, pp. 20-22.]

9 Amended Petition, pp. 18-19; Memorandum for Petitioner, pp. 34-45.

10 Id., at 13-14; Id., at 19.

11 Id., at 16-17; Id., at 23.

12 Id., at 25-34.

13 Id., at 27-31;Id., at. 66-76.

14 Id., at 27-35; Id.,. at 76-83.

15 Comment, pp. 11-13; Memorandum for Respondents, pp. 30-32.

16 Ibid.; Id., at 49-50.

17 Id., at 13-25; Id., at 58-59.

18 Id., at 28-33; Id.., at 70-77.

19 Id., at 33-34.

20 Comment, pp. 37-42; Memorandum for Respondents, pp. 82-84.

21 Reply to Comment, p. 12.

22 Id., at 14-15.

23 TSN, Hearing on oral arguments, September 18, 2001, pp. 2-3.

24Tan vs. People, 290 SCRA 117 (1998); see also Padilla vs. Court of Appeals, 269 SCRA
402 (1997).

25 Morfe vs. Mutuc, 22 SCRA 424 (1968).

26 State v. Vogel, 467 N.W.2d 86 (1991).

27 See Id.

28 ART. III, Sections 1, 12 and 14.

In Ermita-Malate Hotel and Motel Operators Association, Inc. vs. City Mayor of
Manila (20 SCRA 849 [1967]), the Court expounded on the concept of due process
as follows:

x x x What then is the standard of due process which must exist both as a procedural
and a substantive requisite to free the challenged ordinance, or any governmental
action for that matter, from the imputation of legal infirmity sufficient to spell its
doom? It is responsiveness to the supremacy of reason, obedience to the dictates of
justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy
the due process requirement, official action, to paraphrase Cardozo, must not outrun
the bounds of reason and result in sheer oppression. Due process is thus hostile to
any official action marred by lack of reasonableness. Correctly it has been identified
as freedom from arbitrariness. It is the embodiment of the sporting idea of fair play. It
exacts fealty 'to those strivings for justice' and judges the act of officialdom of
whatever branch 'in the light of reason drawn from considerations of fairness that
reflect [democratic] traditions of legal and political thought.' It is not a narrow or
'technical conception with fixed content unrelated to time, place and circumstances,'
decisions based on such a clause requiring a 'close and perceptive inquiry into
fundamental principles of our society." Questions of due process are not to be
treated narrowly or pedantically in slavery to form or phrases (at pp. 860-861).

29 ART. III, Section 14.

30 People v. Nazario, 165 SCRA 186 (1988).

31 347 U.S. 612 (1954).

32 Id., at 617.

33 Kolender v. Lawson, 461 U.S. 352 (1983).

34 Ibid.

35 See Grayned v. City of Rockford, 408 U.S. 104 (1972).

36 Ibid.

37 Kolender, supra.

38 Ibid.

39 Section 2.

40 See FCC v. American Broadcasting Co., 347 US 284 (1954).

41
See Dissenting Opinion of Justice Vicente V. Mendoza, pp. 10-12.
42RELATIONS BETWEEN VAGUENESS AND OVERBREADTH – THE VOID FOR VAGUE
DOCTRINE, American Constitutional Law (2nd) (1998), p. 1033 citing Lanzetta v. New
Jersey, 306 U.S. 451 (1939). See also Springfield Armory, Inc. v City of Columbus, 29 F.3d
250, 1994 FED App 239P (6th Cir. 1994); Connally v. General Construction Company, 269
U.S. 385 (1926); Lambert v. California, 355 U.S. 225 1957); Kolender v. Lawson, supra.

43THE OVERBREADTH DOCTRINE, Treatise on Constitutional Law – Substance and

Procedure, Vol. IV (1992), pp. 25-31; 36-37.

44 See Note 42.

45 Springfield Armory, Inc. v City of Columbus, supra.

46 See Concurring Opinion of Justice Vicente V. Mendoza, pp. 10-12.

47RELATIONS BETWEEN VAGUENESS AND OVERBREADTH – THE VOID FOR VAGUE

DOCTRINE, American Constitutional Law (2nd) [1998], p. 1033 citing Lanzetta v. New
Jersey, 306 U.S. 451 [1939]. See also Springfield Armory, Inc. v City of Columbus, 29 F.3d
250, 1994 FED App 239P [6th Cir. 1994]; Connally v. General Construction Company, 269
U.S. 385 [1926]; Lambert v. California, 355 U.S. 225 [1957]; Kolender v. Lawson, 461 U.S.
352 [1953].

48 413 U.S. 601 [1973].

VAGUENESS AND OVERBREADTH, AN OVERVIEW, Lockhart et al. Constitutional Law,

49

Cases-Comments-Questions [6th Ed, 1986], p. 740.

50 Springfield v. Oklahoma, supra; Kolender v. Lawson, supra.

51 Supra.

52 Supra.

53 At p. 253.

54 See Concurring Opinion of Justice Mendoza, p. 5.

55 See Decision, p. 7.

56The transcript of Stenographic Notes of the Hearing in Criminal Case No. 26561 on June
13, 2001, p. 16 reads:

PJ Garchitorena:

xxx

But you see, I will provoke you. Forgive us for provoking you, but we ourselves have
been quarrelling with each other in finding ways to determine what we understand by
plunder.

xxx

57 Infra.

58 In his column on the April 25, 2001 issue of Today, Fr. Bernas stated:

xxx
 One question that has come up is whether a public official can commit more than one
crime of plunder during his or her incumbency. There are those who hold that the law
describes only one crime and that it cannot be split into several offenses. This would
mean that the prosecution must weave a web of offenses out of the six ways of
illegally amassing wealth and show how the various acts reveal a combination or
series of means or schemes which reveal a pattern of criminality. My understanding
is that under such a reading the six ways of amassing wealth should not be seen as
separate from each other but must be shown to be parts of one combination or
scheme. The interrelationship of the separate acts must be shown.

An alternate reading of the law, which is perhaps easier to prove but harsher on the
accused, is that each one of the six ways of amassing wealth can constitute plunder
if the total take adds up to the required P75 million.

xxx

There is another provision in the law which I find intriguing. It says: "For purposes of
establishing the crime of plunder, it shall not be necessary to prove each and every
criminal act done by the accused in furtherance of the scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond
reasonable doubt a pattern of overt criminal acts indicative of the overall unlawful
scheme or conspiracy." Is this an indication that there is only one crime of plunder
under the statute?

Fr. Bernas also discussed the vagueness of "combination" or "series" in the July 1,
2001 issue of Today:

Taken individually, the elements that are supposed to constitute the series can be
well understood. But now the Estrada lawyers are asking when precisely these
elements constitute a "combination or series". The question is important because of
an intriguing provision in the plunder law: "For purposes of establishing the crime of
plunder, it shall not be necessary to prove each and every criminal act done by the
accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire
ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of
overt criminal acts indicative of the overall unlawful scheme or conspiracy." How can
you have a "series of criminal acts if the elements that are supposed to constitute the
series are not proved to be criminal?

59 Decision, p. 12.

60 Id., at 14.

61 Decision, pp. 12-14.

62RECORD OF THE JOINT CONFERENCE MEETING COMMITTEE ON JUSTICE AND

COMMITTEE ON CONSTITUTIONAL AMENDMENTS (S. No. 733 & H. No. 22752), May 7,
1991, pp. 39-40.

63 Decision, p. 14.

64 RECORDS OF THE SENATE, June 6, 1989, pp. 92-93.

65 RECORDS OF THE SENATE, June 5, 1989, pp. 34.

66 Reply to Comment, p. 33.

67 Ibid.
68 Id.

69 Id.

70RECORD OF THE JOINT CONFERENCE MEETING COMMITTEE ON JUSTICE AND

COMMITTEE ON CONSTITUTIONAL AMENDMENTS (S. No. 733 & H. No. 22752), May 7,
1991, p. 40.

71 Ibid.

72 Id.

73 Id.

74 Id.

75 Id., at 40-41.

76 Id., at 42-43.

77 Article III of the Constitution provides:

Sec. 1. No person shall be deprived of life, liberty or property without due process of
law, nor shall any person be denied the equal protection of the laws.

xxx

Sec. 19(1) Excessive fines shall not be imposed, nor cruel, degrading or
inhuman punishment inflicted. Neither shall death penalty be imposed unless, for
compelling reasons involving heinous crimes, the Congress hereafter provides for it.
Any death penalty already imposed shall be reduced to reclusion
perpetua. (Emphasis supplied.)

78 Reply to Comment, pp.16-18; Memorandum for Petitioner, pp. 62-63.

79 Article 335, Revised Penal Code.

80
Article 249, Revised Penal Code.

81 Rubi vs. Provincial Board of Mindoro, 39 Phil 660 (1919).

82 See Article XIII, Section 1 and 2, Constitution.

83 Id., at Section 6.

84 Id., at Section 3.

85 Id., at Section 5.

86 Id., at Section 7.

87 Id., at Section 14.

88 See Article XIV, Constitution..

89 Comment, p. 13.
90 Decision, pp. 14-15.

91 Alpha Investigation and Security Agency, 272 SCRA 653 (1997).

92 11 Oxford English Dictionary 357 (2d ed 1989).

93 Webster’s Third New International Dictionary, p. 2029 (1976).

94 H.J. Inc., et al. v. Northwestern Bell Telephone Co., et al., 492 US 229 (1989)

95 Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985).

96 Supra.

97 Id., at 236.

98
Justice Scalia was joined by Chief Justice Rehnquist, Justices O’Connor and Kennedy.

99Atkinson, Jeff. "RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS," § §

1961-68: Broadest of the Federal Criminal Statutes, 69 JOURNAL OF CRIMINAL LAW AND
CRIMINOLOGY 1 (1978).

100 18 U.S.C. § 1962 (1970):

(a) It shall be unlawful for any person who has received any income derived, directly
or indirectly, from a pattern of racketeering activity or through collection of an
unlawful debt in which such person has participated as a principal within the meaning
of section 2, title 18, United States Code, to use or invest, directly or indirectly, any
part of such income, or the proceeds of such income, in acquisition of any interest in,
or the establishment or operation of, any enterprise which is engaged in, or the
activities of which effect, interstate or foreign commerce. A purchase of securities on
the open market for purposes of investment, and without the intention of controlling
or participating in the control of the issuer, or of assisting another to do so, shall not
be unlawful under this subsection if the securities of the issuer held by the purchaser,
the members of his immediate family, and his or their accomplices in any pattern or
racketeering activity or the collection of an unlawful debt after such purchase do not
amount in the aggregate to one percent of the outstanding securities of any one
class, an do not confer, either in law or in fact, the power to elect one or more
directors of the issuer.

(b) It shall be unlawful for any person through a pattern of racketeering activity or
through collection of an unlawful debt to acquire or maintain, directly or indirectly, any
interest in or control of any enterprise which is engaged in, or the activities of which
affect, interstate or foreign commerce.

(c) It shall be unlawful for any person employed by or associated with any enterprise
engaged in, or the activities of which affect, interstate or foreign commerce, to
conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs
through a pattern of racketeering activity or collection of unlawful debt.

(d) It shall be unlawful for any person to conspire to violate any of the provisions of
subsections (a), (b), or (c) of this section.

101 Id., at § 1961(5).

102 See RECORDS JOINT CONFERENCE COMMITTEE MEETING, May 7, 1991, p. 12.

103 Northwestern, supra.

104 Id., at 239:

RICO’s legislative history reveals Congress’ intent that to prove a pattern of

racketeering activity a plaintiff or prosecutor must show that the racketeering
predicates are related, and that they amount to or pose a threat of continued criminal
activity. Citing 116 Cong Rec 18940 (1970)

105 Id., at 240.

106 Id.,at 241.

107 Separate Concurring Opinion, pp. 255-256.

108The issue involved in this case was whether Northwestern Bell Telephone Co., Inc. was
liable under the RICO Law for bribing the members of the Minnesota Public Utilities
Commission to approve rates for the company in excess of a fair and reasonable amount.
The U.S. Supreme Court reversed the District Court of Minnesota and held that (1) to prove
a "pattern of racketeering activity" within the meaning of RICO, it must be shown that the
predicate acts of racketeering activity are related and that they amount to or pose a threat of
continued criminal activity; (2) it is not only by proof of multiple schemes that continuity of
criminal activity may be shown; (3) a pattern of racketeering activity may be shown
regardless of whether the racketeering activities are characteristic of "organized crime"; and
(4) remand was necessary because, under the facts alleged, it might be possible to prove
that the defendants' actions satisfied the requirements of relatedness and continuity and they
thus constituted a "pattern of racketeering activity".

109See United States v. Masters, 924 F.2d 1362 (7th Cir.), cert. denied 11 S. Ct. 2019
(1991); United Statesv. Pungitore, 910 F.2d 1084 (3rd Cir. 1990), cert. denied, 11 S.Ct.
2009-11 (1991); United States v. Angiulo, 897 F.2d 1169 (1st Cir.), cert. denied, 111 S. Ct.
130 (1990). All cases cited in Moran, Christopher, infra.

110Bauerschmidt, Joseph E., Mother of Mercy – Is this the End of RICO? – Justice Scalia
Invites Constitutional Void-for-Vagueness Challenge to RICO "Pattern", 65 NOTRE DAME
LAW REVIEW 1106 (1990).

111Moran, Christopher. Is the "Darling" in Danger? "Void for Vagueness" – The

Constitutionality of the RICO Pattern Requirement, 36 VILLANOVA LAW REVIEW 1697
(1991) citing:

COLO. REV. STAT. § 18-17-103(3): "Pattern of racketeering activity" means

engaging in at least two acts of racketeering activity which are related to the conduct
of the enterprise, if at least one of such acts occurred in this state after July 1, 1981,
and if the last of such acts occurred within ten years (excluding any period of
imprisonment) after a prior act of racketeering activity.

CONN. GEN. STAT. ANN. § 53-394(e) (West 1985): "Pattern of racketeering activity"
means engaging in at least two incidents of racketeering activity that have the same
or similar purposes, results, participants, victims or methods of commission or
otherwise are interrelated by distinguishing characteristics, including a nexus to the
same enterprise, and are not isolated incidents, provided at least one of such
incidents occurred after the effective date of this act and that the last of such
incidents occurred within five years after a prior incident of racketeering conduct.

GA. CODE ANN. § 16-14-3(8) (Supp. 1991): "Pattern of racketeering activity" means
engaging in at least two incidents of racketeering activity that have the same or
similar intents, results, accomplices, victims, or methods of commission or otherwise
are interrelated by distinguishing characteristics and are not isolated incidents,
provided at least one of such incidents occurred after July 1, 1980, and that the last
of such incidents occurred within four years, excluding any periods of imprisonment,
after the commission of a prior incident of racketeering activity.

IDAHO CODE § 18-7803(d) (1987): "Pattern of racketeering activity" means

engaging in at least two (2) incidents of racketeering conduct that have the same or
similar intents, results, accomplices, victims, or methods of commission, or otherwise
are interrelated by distinguishing characteristics and are not isolated incidents,
provided at least one (1) of such incidents occurred after the effective date of this act
and that the last of such incidents occurred within five (5) years after a prior incident
of racketeering conduct.

IND. CODE ANN. § 35-45-6-1 (West 1986): "Pattern of racketeering activity" means
engaging in at least two (2) incidents of racketeering activity that have the same or
similar intent, result, accomplice, victim, or method of commission, or that are
otherwise interrelated by distinguishing characteristics [sic] that are not isolated
incidents. However, the incidents are a pattern of racketeering activity only if at least
one (1) of the incidents occurred after August 31, 1980, and if the last of the incidents
occurred within five (5) years after a prior incident of racketeering activity.

LA. REV. STAT. ANN. § 15:1352 (C) (West Supp. 1992): "Pattern of drug
racketeering activity" means engaging in at least two incidents of drug racketeering
activity that have the same or similar intents, results, principals, victims, or methods
of commission or otherwise are interrelated by distinguishing characteristics and are
not isolated incidents, provided at least one of such occurs after a prior incident of
drug racketeering activity.

MISS. CODE ANN. § 97-43-3(d) (Supp 1989): "Pattern of racketeering activity"

means engaging in at least two (2) incidents of racketeering conduct that have the
same or similar intents, results, accomplices, victims, or methods of commission or
otherwise are interrelated by distinguishing characteristics and are not isolated
incidents, provided at least one (1) of such incidents occurred after the effective date
of this chapter and that the last of such incidents occurred within five (5) years after a
prior incident of racketeering conduct.

N.C. GEN. STAT. § 75D-3(b) (1990): "Pattern of racketeering activity means

engaging in at least two incidents of racketeering activity that have the same or
similar purposes, results, accomplices, victims or methods of commission or
otherwise are interrelated by distinguishing characteristics and are not isolated and
unrelated incidents, provided at least one of such incidents occurred after October 1,
1986, and that at least one other of such incidents occurred within a four-year period
of time of the other, excluding any periods of imprisonment, after the commission of a
prior incident of racketeering activity.

OR. REV. STAT. § 166.715(4) (1990): "Pattern of racketeering activity" means

engaging in at least two incidents of racketeering activity that have the same or
similar intents, results, accomplices, victims, or methods of commission or otherwise
are interrelated by distinguishing characteristics, including a nexus to the same
enterprise, and are not isolated incidents, provided at least one of such incidents
occurred after November 1, 1981, and that the last of such incidents occurred within
five years after a prior incident of racketeering activity.

TENN. CODE ANN. § 39-12-203(6) (1991): "Pattern of racketeering activity" means

engaging in at least two (2) incidents of racketeering activity that have the same or
similar intents, results, accomplices, victims or methods of commission or otherwise
are interrelated by distinguishing characteristics and are not isolated incidents;
provided, that at least one (1) of such incidents occurred after July 1, 1986, and that
the last of such incidents occurred within two (2) years after a prior incident of
racketeering conduct.
 WASH. REV. CODE ANN. § 9A.82.010(15) (1988): "Pattern of criminal profiteering
activity" means engaging in at least three acts of criminal profiteering, one of which
occurred after July 1, 1985, and the last of which occurred within five years,
excluding any period of imprisonment, after the commission of the earliest act of
criminal profiteering. In order to constitute a pattern, the three acts must have the
same or similar intent, results, accomplices, principals, victims or methods of
commission, or be otherwise interrelated by distinguishing characteristics including a
nexus to the same enterprise, and must not be isolated events.

112 Id., citing:

CAL. PENAL CODE § 186.2(b) (West 1988): "Pattern of criminal profiteering activity"
means engaging in at least to incidents of criminal profiteering, as defined by this act,
which meet the following requirements: (1) Have the same or similar purpose, result,
principals, victims or methods of commission, or are otherwise interrelated by
distinguishing characteristics[;] (2) Are not isolated events[; and] (3) Were committed
as criminal activity of organized crime.

113 Id., citing:

DEL. CODE ANN. Tit. 11. § 1502(5) (1987): "Pattern of racketeering activity" shall
mean 2 or more incidents of conduct: a. That: 1. Constitute racketeering activity; 2.
Are related to the affairs of the enterprise; 3. Are not so closely related to each other
and connected in point of time and place that they constitute a single event; and b.
Where: 1. At least 1 of the incidents of conduct occurred after July 9, 1986; 2. The
last incident of conduct occurred within 10 years after a prior occasion of conduct . . .

OHIO REV. CODE ANN. §2923.31(E) (Anderson Supp. 1991): "Pattern of corrupt
activity" means two or more incidents of corrupt activity, whether or not there has
been a prior conviction, that are related to the affairs of the same enterprise, are not
isolated, and are not so closely related to each other and connected in time and
place that they constitute a single event. At least one of the incidents forming the
pattern shall occur on or after January 1, 1986. Unless any incident was an
aggravated murder or murder, the last incidents forming the pattern shall occur within
six years after the commission of any prior incident forming the pattern, excluding
any period of imprisonment served by any person engaging in the corrupt activity.

OKLA. STAT. ANN. tit. 22, § 1402(5) (West Supp. 1992): Pattern of racketeering
activity" means two or more occasions of conduct: a. that include each of the
following: (1) constitute racketeering activity, (2) are related to the affairs of the
enterprise, (3) are not isolated, (4) are not so closely related to each other and
connected in point of time and place that they constitute a single event, and b. where
each of the following is present: (1) at least one of the occasions of conduct occurred
after November 1, 1988, (2) the last of the occasions of conduct occurred within
three (3) years, excluding any period of imprisonment served by the person engaging
in the conduct, of a prior occasion of conduct . . .

WIS. STAT. ANN. § 946.82(3) (West Supp. 1991): "Pattern of racketeering activity"
means engaging in at least 3 incidents of racketeering activity that the same or
similar intents, results, accomplices, victims or methods of commission or otherwise
are interrelated by distinguishing characteristics, provided at least one of the
incidents occurred after April 27, 1982 and that the last of the incidents occurred
within 7 years after the first incident of racketeering activity. Acts occurring at the
same time and place which may form the basis for crimes punishable under more
than one statutory provision may count for only one incident of racketeering activity.

114 Id., citing:

 MINN. STAT. ANN. §609.902(6) (West Supp. 1992): "Pattern of criminal activity"
means conduct consisting constituting three or more criminal acts that: (1) were
committed within ten years of the commencement of the criminal proceedings; (2)
are neither isolated incidents, nor so closely related and connected in point of time or
circumstance of commission as to constitute a single criminal offense; and (3) were
either: (i) related to one another through a common scheme or plan or shared
criminal purpose or (ii) committed, solicited, requested, importuned, or intentionally
aided by persons acting with the mental culpability required for the commission of the
criminal acts and associated with or in an enterprise involved in these activities.

N.Y. PENAL LAW §460.10(4) (McKinney 1989): "Pattern of criminal activity" means
conduct engaged in by persons charged in an enterprise corruption count
constituting three or more criminal acts that: (a) were committed within ten years of
the commencement of the criminal action; (b) are neither isolated incidents, nor so
closely related and connected in point in time or circumstance of commission as to
constitute a criminal offense or criminal transaction . . . ; and (c) are either: (i) related
to one another through a common scheme or plan or (ii) were committed, solicited,
requested, importuned or intentionally aided by persons acting with the mental
culpability required for the commission thereof and associated with or in the criminal
enterprise.

115Luskin, Robert D. Behold, The Day of Judgment: Is the RICO Pattern Requirement Void
for Vagueness? 64 ST. JOHN’S LAW REVIEW 779 (1990).

Memorandum for Petitioner, p. 47; TSN, Oral Arguments, September 18, 2001, see pp.
116

224-233.

117 Memorandum for Petitioner, p. 47.

118 See Kolender v. Lawson, supra

119 18 U.S.C. § 1961 (5). .

120 See U.S. v. Batchelder, 442 US 114, 60 L Ed 2d 755, 99 S Ct 2198 (1979).

121 Through Justice Brennan.

122 Supra.

123 Decision, pp. 21-22.

124 Today, July 1, 2001 issue.

125In People vs. Echegaray (267 SCRA 682) the word "heinous" was traced to the early
Spartans’ word "haineus" which means hateful and abominable. In turn, the word came from
the Greek prefix "haton" indicating acts so hateful or shockingly evil. (at 715)

126WHEREAS, the crimes punishable by death under this Act are heinous for being grievous,
odious and hateful offenses and which, by reason of their inherent or manifest wickedness,
viciousness, atrocity and perversity are repugnant and outrageous to the common standards
and norms of decency and morality in a just, civilized and ordered society.

127 Reyes, Luis B. The Revised Penal Code, Book One (13th ed.), p. 56.

128 Petitioner’s Memorandum, p. 81.

129 Dennis v. U.S., 314 U.S. 494 (1951).

 130 Scales v. U.S., 203 (1961).

131 Smith v. California, 361 U.S. 147 (1959).

132 342 U.S. 246 (1952).

133 Regalado, Florenz, Criminal Law Conspectus (2001 ed.), 161-162.

134 Atty. Rene A.V. Saguisag.

135 Senate Bill No. 733.

136 Tañada and Macapagal vs. Cuenco, 103 Phil. 1093.

137 Commercial National Bank v. Rowe, 666 So. 2d 1312 (1996).

138
65 Phil. 56 (1937).

139 Id., at 90.

140 See Explanatory Note, Senate Bill No. 733, Records of the Senate, June 1, 1989, pp. 1-2.

141 See Papachristou v. Jacksonville, 405 U.S. 156 (1972).

One of the reliefs sought in the Prayer contained in the Petition (at p. 37) and in
142

Petitioner’s Memorandum (at p. 84) is for the quashal of the Information in Criminal case No.
26558 for being null and void.

Double jeopardy attaches only when all of the following circumstances are present:
(1) upon a valid indictment; (2) before a competent court; (3) after arraignment; (4)
when a valid plea has been entered; and (5) when the accused was acquitted or
convicted or the case was dismissed or otherwise terminated without the express
consent of the accused (Tecson vs. Sandiganbayan, 318 SCRA 80, 89 [1999]).

The Lawphil Project - Arellano Law Foundation

SEPARATE DISSENTING OPINION

PARDO, J.:

With due respect, I vote to grant the petition on the second ground raised therein, that is, multiplicity
of offenses charged in the amended information.1 Consequently, the resolution of the
Sandiganbayan must be set aside, and the case remanded to the Ombudsman for the amendment
of the information to charge only a single offense.

In my view, it is unnecessary to rule on the unconstitutionality of the entire law,2 R. A. No. 7080, as
amended by R. A. No. 7659, although I share the opinion of the dissenting justices in the case of
People v. Echagaray,3 that the heinous crime law is unconstitutional. Hence, the amendments to the
plunder law prescribing the death penalty therefor are unconstitutional. I am of the view that the
plunder law penalizes acts that are mala in se, and consequently, the charges must be the specific
acts alleged to be in violation of the law, committed with malice and criminal intent. At any rate, I
venture the view that Section 4, R. A. No. 7080, must be interpreted as requiring proof beyond
reasonable doubt of all the elements of plunder as prescribed in the law, including the elements of
the component crimes, otherwise, the section will be unconstitutional.

Footnotes

1 Petition, Annex "B", Motion to Quash, Ground II.

2 ‘The Court will not pass upon a constitutional question although properly presented by the
record if the case can be disposed of on some other ground." (Laurel v. Garcia, 187 SCRA
797, 813 [1990], citing Siler v. Louisville and Nashville R. Co., 312 U.S. 175 [1909]; Railroad
Commission v. Pullman Co., 312 U.S. 496 [1941]; Lalican v. Vergara, 342 Phil. 485, 498
[1997]; Mirasol v. Court of Appeals, G. R. No. 128448, February 1, 2001.

3 335 Phil. 343 [1997].

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

SANDOVAL–GUTIERREZ, J.:

At times when speaking against popular views can subject a member of this Court to all sorts of
unfair criticism and pressure from the media, the lure not to wield the judicial pen is at its crest.
Nevertheless, I cannot relent to such enticement. Silence under such circumstances may mean not
only weakness, but also insensibility to the legal consequence of a constitutional adjudication bound
to affect not only the litigants, but the citizenry as well. Indeed, the core issue in this case is highly
significant, the resolution of which is inevitably historical. Thus, today, I prefer to take a stand and,
therefore, dissent from the majority opinion.

It is beyond dispute that Republic Act No. 7080 (R.A. No. 7080),1 entitled "An Act Penalizing the
Crime of Plunder," is controversial and far-reaching. Nonetheless, it is my view that it is also vague
and fuzzy, inexact and sweeping. This brings us to the query - may R.A. No. 7080 be enforced as
valid and its shortcomings supplied by judicial interpretation? My answer, to be explained later, is
"NO."

As a basic premise, we have to accept that even a person accused of a crime possesses inviolable
rights founded on the Constitution which even the welfare of the society as a whole cannot override.
The rights guaranteed to him by the Constitution are not subject to political bargaining or to the
calculus of social interest. Thus, no matter how socially-relevant the purpose of a law is, it must be
nullified if it tramples upon the basic rights of the accused.

Enshrined in our Constitution is the ultimate guaranty that "no person shall be deprived of life, liberty,
or property without due process of law."2 This provision in the Bill of Rights serves as a protection of
the Filipino people against any form of arbitrariness on the part of the government, whether
committed by the legislature, the executive or the judiciary. Any government act that militates against
the ordinary norms of justice and fair play is considered an infraction of the due process; and this is
true whether the denial involves violation merely of the procedure prescribed by law or affects the
very validity of the law itself.3

The same Due Process Clause protects an accused against conviction except upon proof beyond
reasonable doubt of every fact necessary to constitute the crime with which he is charged. The
reason for this was enunciated in In Re Winship:4 "[t]he accused during a criminal prosecution has at
stake interest of immense importance, both because of the possibility that he may lose his liberty (or
life) upon conviction and because of the certainty that he would be stigmatized by the conviction." In
view thereof, any attempt on the part of the legislature to diminish the requirement of proof in
criminal cases should be discouraged.

R.A. No. 7080, as amended, is unconstitutional. Albeit the legislature did not directly lower the
degree of proof required in the crime of plunder from proof beyond reasonable doubt to mere
preponderance of or substantial evidence, it nevertheless lessened the burden of the prosecution by
dispensing with proof of the essential elements of plunder. Let me quote the offending provision:

SEC. 4. Rule of Evidence. – For purposes of establishing the crime of plunder, it shall not be
necessary to prove each and every criminal act done by the accused in furtherance of the
scheme or conspiracy to amass, accumulate, or acquire ill-gotten wealth, it being sufficient to
establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy.

In every criminal prosecution, the law recognizes certain elements as material or essential. Calling a
particular fact an "essential element" carries certain legal consequences. In this case, the
consequence that matters is that the Sandiganbayan cannot convict the accused unless it
unanimously5 finds that the prosecution has proved beyond reasonable doubt each element of the
crime of plunder.

What factual elements must be proved beyond reasonable doubt to constitute the crime of
plunder?

Ordinarily, the factual elements that make up a crime are specified in the law that defines it. Under
R.A. No 7080, as amended, the essential elements of the crime of plunder are: a) that the offender is
a public officer; b) that he amasses, accumulates or acquires ill-gotten wealth through a combination
or series of overt or criminal acts described in Section 1 (d), to wit:

1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on

the public treasury;

2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks, or

any other form of pecuniary benefit from any person and/or entity in connection with any
government contract or project or by reason of the office or position of the public officer
concerned;

3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National

Government or any of its subdivision, agencies or instrumentalities or government –owned or
controlled corporations and their subsidiaries;

4) By obtaining, receiving or accepting directly, or indirectly any shares of stock, equity or

any other form of interest or participation including the promise of future employment in any
business enterprise or undertaking;

5) By establishing agricultural, industrial or commercial monopolies or other combinations

and/or implementation of decrees and orders intended to benefit particular person or special
interests; or

6) By taking undue advantage of official position, authority, relationship, connection, or

influence to unjustly enrich himself or themselves at the expense and to the damage and
prejudice of the Filipino people and the Republic of the Philippines.
and c) that the aggregate amount or total value of the ill-gotten wealth is at least Fifty Million Pesos
(P50,000,000.00).6

Does the phrase "combination or series of overt or criminal acts described in Section 1 (d)" mean
that the "criminal acts" merely constitute the means to commit plunder? Or does it mean that those
"criminal acts," are essential elements of plunder?

When Section 4 of R.A. No. 7080 mandates that it shall not be necessary for the prosecution to
prove each and every criminal act done by the accused, the legislature, in effect, rendered the
enumerated "criminal acts" under Section 1 (d) merely as means and not as essential elements of
plunder. This is constitutionally infirmed and repugnant to the basic idea of justice and fair play.7 As
a matter of due process, the prosecution is required to prove beyond reasonable doubt every
fact necessary to constitute the crime with which the defendant is charged. The State may
not specify a lesser burden of proof for an element of a crime.8 With more reason, it should not
be allowed to go around the principle by characterizing an essential element of plunder merely as a
"means" of committing the crime. For the result is the reduction of the burden of the prosecution to
prove the guilt of the accused beyond reasonable doubt.

Let me elucidate on the vices that come with Section 4.

First, treating the specific "criminal acts" merely as means to commit the greater crime of plunder, in
effect, allows the imposition of the death penalty even if the Justices of the Sandiganbayan did not
"unanimously" find that the accused are guilty beyond reasonable doubt of those "criminal acts." The
three Justices need only agree that the accused committed at least two of the criminal acts,
even if not proved by evidence beyond reasonable doubt. They do not have to agree
unanimously on which two.

Let us consider the present case against former President Joseph Ejercito Estrada. The accusatory
portion of the information in Criminal Case No. 26558 charges Mr. Estrada and others of willfully,
unlawfully and criminally amassing, accumulating and acquiring ill-gotten wealth in the aggregate
amount of P4,097,804,173.17 more or less, through a combination and series of overt
and criminal acts described as follows:

"a) by receiving, collecting, directly or indirectly, on many instances, so called "jueteng

money" from gambling operators in connivance with co-accused Jose "Jinggoy" Estrada,
Yolanda Ricaforte and Edward Serapio, as witnessed by Gov. Luis Chavit Singson, among
other witnesses, in the aggregate amount of FIVE HUNDRED FORTY-FIVE MILLION
PESOS (P545,000,000.00), more or less, in consideration of their protection from arrest or
interference by law enforcers in their illegal "jueteng" activities; and

b) by misappropriating, converting and misusing his gain and benefit public fund in the
amount of ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less,
representing a portion of the One Hundred Seventy Million Pesos (P170,000,000.00)
tobacco excise tax share allocated for the Province of Ilocos Sur under R.A. No. 7171, in
conspiracy with co-accused Charlie "Atong" Ang, Alma Alfaro, Eleuterio Tan a.k.a Eleuterio
Ramos Tan or Mr. Uy., and Jane Doe a.k.a Delia Rajas as witnesses by Gov. Luis "Chavit"
Singson, among other witnesses; and

c) by directing, ordering and compelling the Government Service Insurance System (GSIS)
and the Social Security System (SSS) to purchase and buy a combined total of
P681,733,000. shares of stock of Belle Corporation in the aggregate value of One Billion
Eight Hundred Forty Seven Pesos and Fifty Centavos (P1,847,578,057.50), for the purpose
of collecting for his personal gain and benefit, as in fact he did collect and receive the sum
of ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND
PESOS(P189,700,000.00), as commission from said stock purchase; and

d) by unjustly enriching himself in the amount of THREE BILLION TWO HUNDRED THIRTY
THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE
PESOS AND SEVENTEEN CENTAVOS (P3,233,104,173.17) comprising his unexplained
 wealth, acquired, accumulated and amassed by him under his account name "Jose Velarde"
with Equitable PCI Bank."

Since it is not necessary to prove each criminal act, the inevitable conclusion is that Mr. Estrada may
be convicted of the crime of plunder without the Justices of the Sandiganbayan "unanimously"
deciding which two of the four criminal acts have actually been committed. In short, all that R.A. No.
7080 requires is that each Justice must be convinced of the existence of a "combination or series."
As to which criminal acts constitute a combination or series, the Justices need not be in full
agreement. Surely, this would cover-up a wide disagreement among them about just what the
accused actually did or did not do. Stated differently, even if the Justices are not unified in their
determination on what criminal acts were actually committed by the accused, which need not be
proved under the law, still, they could convict him of plunder.

Considering that what R.A. No. 7080 punishes is the plurality of criminal acts indicative of the grand
scheme or conspiracy to amass ill-gotten wealth, it is imperative to focus upon the individual
"criminal acts" in order to assure the guilt of the accused of plunder.

Second, R.A. No. 7080 lumps up into one new offense of plunder six (6) distinct crimes which by
themselves are currently punishable under separate statutes or provisions of law. The six (6)
separate crimes become mere "means or similar schemes" to commit the single offense of plunder.
It bears emphasis that each of the separate offenses is a crime mala in se. The commission of any
offense mala in se is inherently accompanied by a guilty mind or a criminal intent.9 Unfortunately,
R.A. No. 7080 converted the six mala in se offenses into one crime which is mala prohibita wherein
the intent becomes insignificant. Upon the commission of the proscribed act, without proof of
intent, the law is considered violated.10 Consequently, even acts recklessly committed (i.e. without
intent) can be punished by death.

Third, Section 4 mandates that it shall not be necessary for the prosecution to prove each and
every criminal act done by the accused x x x it being sufficient to prove beyond reasonable
doubt a pattern of overt or criminal acts. By its own terminology, Section 4 requires that the
"pattern" be proved by evidence beyond reasonable doubt. Initially, we must disassociate the
specific "criminal acts" from the "pattern of criminal acts." These two phrases do not refer to one and
the same thing. Pattern, as defined in the dictionary, means an established mode of behavior.11 In
the crime of plunder, the existence of a "pattern" can only be inferred from the specific "criminal acts"
done by the accused. Several queries may be raised to determine the existence of a "pattern." Are
these criminal acts related or tied to one another? Is the subsequent criminal act a mere continuation
of the prior criminal act? Do these criminal acts complement one another as to bring about a single
result? Inevitably, one must focus first on each criminal act to ascertain the relationship or
connection it bears with the other criminal acts, and from there determine whether a certain "pattern"
exists. But how could "pattern" be proved beyond reasonable doubt when in the first place
the specific "criminal acts" from which such pattern may be inferred are not even required to
be proved?

And fourth, plunder is a very serious offense. What is at stake under the law is not only the liberty of
the accused but his life and property as well. Thus, it will be extremely unjust to lessen the
prosecution’s burden of proof to such a degree not commensurate to what the accused stands to
suffer. If a person will lose his life, justice requires that every fact on which his guilt may be inferred
must be proved beyond reasonable doubt.

Providing a rule of evidence which does not require proof beyond reasonable doubt to establish
every fact necessary to constitute the crime is a clear infringement of due process. While the
principles of the law of evidence are the same whether applied on civil or criminal trials, they are
more strictly observed in criminal cases.12 Thus, while the legislature of a state has the power to
prescribe new or alter existing rules of evidence, or to prescribe methods of proof, the same
must not violate constitutional requirements or deprive any person of his constitutional
rights.13 Unfortunately, under R.A. No. 7080, the State did not only specify a lesser burden of
proof to sustain an element of the crime; it even dispensed with proof by not considering the
specific "criminal acts" as essential elements. That it was the clear intention of the legislature is
evident from the Senate deliberation, thus:
"Senator Guingona. Since it is a series or a scheme,what amount of evidence will, therefore, be
required? Must there be a pattern of the criminal acts? Must there be a series of briberies, for
example? Or, can there be only one?

Senator Tanada. Under Section 4 of the bill, Mr. President, it is provided that:

"For purposes of establishing the OFFENSE, of plunder, it shall not be necessary to prove each and
every criminal act done by the accused in furtherance of the scheme or conspiracy to amass,
accumulate, or acquire ill-gotten wealth… But, there must be enough evidence "sufficient to
establish beyond reasonable doubt a pattern of overt or criminal acts of the overall unlawful scheme
or conspiracy."

So, that is the quantum of evidence that would be required under this proposal measure.

Senator Guingona. That is sufficient to establish the prima facie case.14

xxxxxx

Senator Romulo. That, perhaps, is a good provision of the bill. But, may I ask, Mr. President, what
is in this bill that would insure that there would be a speedier process by which this crime of plunder
would readily and immediately processed and convicted or acquitted than is now existing in present
laws?

Senator Tanada. Yes, x x x.

Now, on the second point, Mr. President, I believe that what could make faster and speedier
prosecutions of these grafters would be a change that will be authorized in this bill, at least, in the
filing of information against the perpetrators. Under the existing criminal procedure, as I said earlier,
there can only be one offense charged per information. So, if there is going to be a series of overt or
criminal acts committed by the grafter, then that would necessitate the filing of so many informations
against him. Now, if this bill becomes a law, then that means that there can be only one information
filed against the alleged grafter. And the evidence that will be required to convict him would not
be evidence for each and every individual criminal act but only evidence sufficient to
establish the conspiracy or scheme to commit this crime of plunder.15

xxxxxx

Senator Guingona. May I just be clarified Mr. President. In this Section 4, a pattern of the criminal
acts is all that is required. Would this pattern of criminal acts be also sufficient to establish a prima
facie case?

Senator Tanada. Mr. President, under Section 4, it would not only be sufficient to establish a prima
facie case. It would be sufficient to establish guilt as long as the evidence, necessary to establish
guilt beyond reasonable doubt is presented."16

In dispensing with proof of each criminal act, the clear objective of Congress is to render it less
difficult for the prosecution to prove the crime of plunder. While this presupposes a noble intention, I
do not think there is a sufficient justification. I, too, have the strong desire to eliminate the sickness of
corruption pervading in the Philippine government, but more than anything else, I believe there are
certain principles which must be maintained if we want to preserve fairness in our criminal justice
system. If the prosecution is not mandated to prove the specific "criminal acts," then how can it
establish the existence of the requisite "combination or series" by proof beyond reasonable doubt?

II

Another valid constitutional objection to R.A. No. 7080 is the vagueness of the term "pattern." As
stated by Mr. Justice Kapunan, in his Dissent, the concept of "pattern of overt or criminal acts"
embodied in the law was derived by Congress from the RICO (Racketeer Influenced and Corrupt
Organizations) statute.17 I am, therefore, constrained to refer to US law and jurisprudence. "Pattern"
as defined in the RICO statute means "as requiring at least two acts of racketeering activity….the
last of which occurred within ten years….after the commission of the prior act of racketeering
activity.18

Mr. Justice Kapunan observed that unlike the RICO law, the law on plunder does not specify a) the
number of criminal acts necessary before there could be a "pattern," as well as b) the period within
which the succeeding criminal acts should be committed. These failures render the law void for its
vagueness and broadness.

Indeed, Congress left much to be desired. I am at a quandary on how many delictual acts are
necessary to give rise to a "pattern of overt or criminal acts" in the crime of plunder. If there is no
numerical standard, then, how should the existence of "pattern" be ascertained? Should it be by
proximity of time or of relationship? May an act committed two decades after the prior criminal act be
linked with the latter for the purpose of establishing a pattern?

It must be remembered that plunder, being a continuous offense, the "pattern of overt or criminal
acts" can extend indefinitely, i.e., as long as the succeeding criminal acts may be linked to the initial
criminal act. This will expose the person concerned to criminal prosecution ad infinitum. Surely, it will
undermine the purpose of the statute of limitations, i.e., to discourage prosecution based on facts
obscured by the passage of time, and to encourage law enforcement officials to investigate
suspected criminal activity promptly.19 All these undesirable consequences arise from the fact
that the plunder law fails to provide a period within which the next criminal act must be
committed for the purpose of establishing a pattern. I believe R.A. No. 7080 should have
provided a cut-off period after which a succeeding act may no longer be attached to the prior act for
the purpose of establishing a pattern. In reiteration, the RICO law defines "pattern" as requiring at
least two acts of racketeering activity… the last of which occurred within ten years… after the
commission of the prior act of racketeering activity. Such limitation prevents a subsequent
racketeering activity, separated by more than a decade from the prior act of racketeering, from being
appended to the latter for the purpose of coming up with a pattern. We do not have the same
safeguard under our law.

Significantly, in Sedima, S.P.R.L v. Imrex Co.,20 the United States Supreme Court expressed dismay
that Congress has failed to properly define the term "pattern" at all but has simply required that a
"pattern" includes at least two acts of racketeering activity. The Court concluded that "pattern"
involves something more than two acts, and after examining RICO’s legislative history, settled on
"continuity plus relationship" as the additional requirement.

Years later, in H.C. Inc. v. The Northwestern Bell Tel.,21 the U.S. Supreme Court conceded that "the
continuity plus relationship" means different things to different circuits. Nevertheless, it held firm to
the Sedima requirement that "in order to establish a pattern, the government has to show "that the
racketeering predicates are related, and that they amount to or pose a threat of continued criminal
activity." Justice Scalia, in a concurring opinion in which three other justices joined, derided the
"relationship" requirement as not "much more helpful [to the lower courts] than telling them to look
for a "pattern" - - which is what the statute already says." As for the continuity requirement, Justice
Scalia said: "Today’s opinion has added nothing to improve our prior guidance, which has created a
kaleidoscope of circuit positions, except to clarify that RICO may in addition be violated when there
is a 'threat of continuity'. It seems to me this increases rather than removes the vagueness. There is
no reason to believe that the Court of Appeals will be any more unified in the future, than they have
in the past, regarding the content of this law."

Aware of the ambiguities present in the RICO law the drafters of the New York "Organized Crime
Control Act" (a progeny of RICO) now more specifically define "pattern of criminal activity" as
conduct engaged in by persons charged in an enterprise corruption count constituting three or more
criminal acts that (a) were committed within ten years from the commencement of the criminal
action; (b) are neither isolated incidents, nor so closely related and connected in point of time or
circumstance of commission as to constitute a criminal offense or criminal transaction, as those
terms are defined in section 40.10 of the criminal procedure law; and (c) are either: (i) related to one
another through a common scheme or plan or (ii) were committed, solicited, requested, importuned
or intentionally aided by persons acting with the mental culpability required for the commission
thereof and associated with or in the criminal enterprise.22

If the term "pattern" as defined in the RICO law is continuously subjected to constitutional attacks
because of its alleged vagueness, how much more the term "pattern" in R.A. No. 7080 which does
not carry with it any limiting definition and can only be read in context. Indeed, there is no doubt that
the invalidity of the law based on vagueness is not merely debatable - it is manifest. Thus, this Court
should declare R.A. No. 7080 unconstitutional.

III

Lastly, the terms "combination" and "series" are likewise vague. Hence, on the basis of the law, a
conviction of an accused cannot be sustained. A statute that does not provide adequate standards
for adjudication, by which guilt or innocence may be determined, should be struck down.23 Crimes
must be defined in a statute with appropriate certainty and definiteness.24 The standards of certainty
in a statute prescribing punishment for offenses are higher than in those depending primarily on civil
sanctions for their enforcement.25 A penal statute should therefore be clear and unambiguous.26 It
should explicitly establish the elements of the crime which it creates27 and provide some reasonably
ascertainable standards of guilt.28 It should not admit of such a double meaning that a citizen may
act on one conception of its requirements and the courts on another.29

I agree with the observation of Mr. Justice Kapunan that "resort to the dictionary meaning of the
terms ‘combination’ and ‘series’ as well as recourse to the deliberations of the lawmakers only serve
to prove that R.A. No. 7080 failed to satisfy the requirement of the Constitution on clarity and
definiteness." The deliberations of our law-makers, as quoted verbatim in Justice Kapunan's Dissent,
indeed, failed to shed light on what constitute "combination" and "series."30

I believe this is fatal.

The essence of the law on plunder lies in the phrase "combination or series of overt or criminal acts."
As can be gleaned from the Record of the Senate, the determining factor of R.A. 7080 is
the plurality of the overt acts or criminal acts under a grand scheme or conspiracy to amass
ill-gotten wealth. Thus, even if the amassed wealth equals or exceeds fifty million pesos, a person
cannot be prosecuted for the crime of plunder if there is only a single criminal act.31

Considering that without plurality of overt or criminal acts, there can be no crime of plunder, due
process of law demands that the terms "combination" and "series" be defined with exactitude in the
law itself. Equating these terms with mere "plurality" or "two or more," is inaccurate and speculative.
For one, a "series" is a group of usually three or more things or events standing or succeeding in
order and having like relationship to each other.32 The Special Prosecution Division Panel defines it
as "at least three of the acts enumerated under Section 1(d) thereof."33 But it can very well be
interpreted as only one act repeated at least three times. And the Office of the Solicitor General,
invoking the deliberations of the House of Representatives, contends differently. It defines the term
series as a "repetition" or pertaining to "two or more."34 The disparity in the Prosecution and OSG’s
positions clearly shows how imprecise the term "series" is.

This should not be countenanced. Crimes are not to be created by inference.35 No one may be
required, at the peril of life, liberty or property to guess at, or speculate as to, the meaning of a penal
statute.36 An accused, regardless of who he is, is entitled to be tried only under a clear and valid law.

Respondents argue that the vagueness of R.A. No. 7080, as amended, is cured when the
Information clearly specified the acts constituting the crime of plunder. I do not agree. It is the statute
and not the accusation under it that prescribes the rule to govern conduct and warns against
aggression.37 If on its face, a statute is repugnant to the due process clause on account of
vagueness, specification in the Information of the details of the offense intended to be charged will
not serve to validate it.38

On the argument that this Court may clarify the vague terms or explain the limits of the overbroad
provisions of R.A. No. 7080, I should emphasize that this Court has no power to legislate.
Precision must be the characteristic of penal legislation. For the Court to define what is a crime is to
go beyond the so-called positive role in the protection of civil liberties or promotion of public
interests. As stated by Justice Frankfurter, the Court should be wary of judicial attempts to impose
justice on the community; to deprive it of the wisdom that comes from self-inflicted wounds and the
strengths that grow with the burden of responsibility.39

A statute which is so vague as to permit the infliction of capital punishment on acts already punished
with lesser penalties by clearly formulated law is unconstitutional. The vagueness cannot be cured
by judicial construction.

Also, not to be glossed over is the fact that R.A. 7080, as amended, is a novel law. Hence, there is
greater need for precision of terms. The requirement that law creating a crime must be sufficiently
explicit to inform those subject to it, what conduct on their part will render them liable to its penalties,
has particular force when applied to statutes creating new offenses. For that reason, those statutes
may not be generally understood, or may be subject of generally accepted construction.40

Today, I recall what James Madison remarked in presenting the Bill of Rights to the United States
Congress in 1789: "if they (Bill of Rights) are incorporated into the Constitution, independent
tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they
will be an impenetrable bulwark against every assumption of power in the legislative or executive;
and they will be naturally led to resist every encroachment upon rights expressly stipulated for in the
Constitution by the declaration of rights."41 Time did not render his foreboding stale. Indeed, in every
constitutional democracy, the judiciary has become the vanguard of these rights. Now, it behooves
this Court to strike an unconstitutional law. The result, I concede, may not be politically desirable and
acceptable, nevertheless, I am fully convinced that it is constitutionally correct.

To recapitulate, R.A. No. 7080 is unconstitutional because it violates the DUE PROCESS CLAUSE
of the Constitution. The vagueness of its terms and its incorporation of a rule of evidence that
reduces the burden of the prosecution in proving the crime of plunder tramples upon the basic
constitutional rights of the accused.

In fine, I can only stress that the one on trial here is not Mr. Estrada, but R.A. No. 7080. The issue
before this Court is not the guilt or innocence of the accused, but the constitutionality of the law. I
vote to grant the petition, not because I favor Mr. Estrada, but because I look beyond today and I
see that this law can pose a serious threat to the life, liberty and property of anyone who may come
under its unconstitutional provisions. As a member of this Court, my duty is to see to it that the law
conforms to the Constitution and no other. I simply cannot, in good conscience, fortify a law that is
patently unconstitutional.

WHEREFORE, I vote to grant the petition.

Footnotes

1As amended by Republic Act No. 7659 - "An Act to Impose the Death Penalty on Certain
Heinous Crimes, Amending for that Purpose the Revised Penal Code, other Special Penal
Laws and for other Purpose (1993).

2 Section 1, Article III of the 1987 Constitution.

3 Cruz, Constitutional Law, 1995 Ed. p. 95.

4 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2nd 368.

5 Section 1 (b) Rule XVIII, Revised Rules of the Sandiganbayan

 "The unanimous vote of three Justices in a division shall be necessary for the
rendition of a judgment or order. In the event that three Justices do not reach a
unanimous vote, the Presiding Justice shall designate by raffle two justices from
among the other members of the Sandiganbayan to sit temporarily with them forming
a special division of five Justices, and the vote of a majority of such special division
shall be necessary for the rendition of a judgment or order.

6 Section 2 of R.A. No. 7080.

7 It is an elementary principle of criminal jurisprudence, a principle firmly embedded in the

organic law of every free state and vindicated by statutory guarantee as well as by
innumerable judicial decisions, that every criminal, however hideous his alleged crime, or
however, debauched and fiendish his character, may require that the elements of that crime
shall be clearly and indisputably defined by law, and that his commission of and relationship
to the alleged offense shall be established by legal evidence delivered in his presence. (Rice,
The Law of Evidence on Evidence, Vol. 3, p. 421.

8
29 Am Jur 2d Section 168, p. 192. Re Winship, 397 US 358, 25 L Ed 2d 368; State v.
Krantz, 498 US 938, 112 L Ed 2d 306.

9In U.S. vs. Ah Chong, 15 Phil. 488 (1910), it was held that the crime must be the product of
a free, intelligent, and intentional act.

10 U.S. vs. Go Chico, 14 Phil. 134 (1909-1910).

11 Webster, Third New International Dictionary, Unabridged, 1993, p. 1657.

12 Harris and Wilshere’s Criminal Law, Seventeenth Division, 1943, pp.513-514.

13 Burgett v. Texas, 389 US 109, 19 L Ed 2d 319, 88 Ct 258; 29 Am Jur 6.

14 Records of the Senate, June 5, 1989, Vol. IV, No. 140, p. 1314.

15 Records of the Senate, Vol. IV, No. 140, p. 1316.

16 Records of the Senate, June 16, 1989, Vol. IV, No. 141, p. 1403.

17See Records Joint Conference Committee Meeting, May 7, 1991, p. 12. Representative
Pablo Garcia, Chairman of the House of Representatives Committee on Justice, observed
that R.A. No. 7080 was patterned after the RICO law.

18 Rotella v. Wood, United States Supreme Court, February 23, 2000.

19
Toussie vs. United States, 397 U.S. 112, 115 (1970).

20 473 U.S. 479, 105 S. Ct. 3275, 87 L. Ed. 2d 346 (1985).

21 492 U.S. 229, 109 S. Ct. 2893, 106 L Ed. 2d 195 (1989).

22 The People of the State of New York v. Capaldo et al., 151 Misc. 2d 114 (1991).

23 21 Am Jur §349, p.399.

24 22 C.J.S. §24 (2) p. 62; Pierce v. United States 314 US 306; 86 L. Ed 226.

"The constitutional vice in a vague or indefinite statute is the injustice to accused in

placing him on trial for an offense as to the nature of which he is given no fair notice.
 (American Communications Associations C.I.O. v. Douds, N.Y. 70 S. Ct. 674, 339
U.S. 382, 94 L. Ed 1391) In determining whether a statute meets the requirement of
certainty, the test is whether the language conveys sufficiently definite warning as to
the proscribe conduct when measured by a common understanding and practices.
Penal statutes affecting public officers and employees and public funds or property
will be held invalid where the prohibited conduct is not sufficiently defined. (Jordan v.
De George III341 U.S. 223, 95 L. Ed. 886; Winters v. People of State of New York.
333 U.S. 507; 92 L. Ed 840) The requirement of statutory specificity has the dual
purpose of giving adequate notice of acts which are forbidden and of informing
accused of the nature of offense charged so that he may defend himself. (Amsel v.
Brooks, 106 A. 2d 152, 141 Conn. 288; 67 S. Ct. 125, 348 U.S. 880, 91 L. Ed. 693)".

25"Winters v. People of State of Newyork 333 US 507; 92 L. Ed. 840 -- "A penal statute must
set up ascertainable standards so that men of common intelligence are not required to guess
at its meaning, either as to persons within the scope of the act or as to the apllicable test to
ascertain guilt."

26
Sullivan v. United States 332 U.S. 689; 92 L. Ed. 297.

27 United States v. Dettra Flag co. D.C. Pa., 86 F. Supp. 84.

28 Winters v. People of State of New York, supra.

29 State v. Tsutomu Ikeda, 143 P. 2d 880, followed in State v. Waller 143 P. 2d 884.

30"Senator Gonzales. To commit the offense of plunder, as defined in this Act and while
constituting a single offense, it must consist of a series of overt or criminal acts, such as
bribery, extortion, malversation, of public funds, swindling, falsification of public documents,
coercion, theft, fraud and illegal exaction, and graft or corrupt practices act and like offenses.
Now, Mr. President, I think, this provision, by itself, will be vague. I am afraid that it might be
faulted for being violative of the due process clause and the right to be informed of the nature
and cause of accusation of an accused. Because, what is meant by "series of overt or
criminal acts"? I mean, would 2, 3, 4 or 5 constitute a series? During the period of
amendments, can we establish a minimum of overt acts like, for example, robbery in band?
The law defines what is robbery in band by the number of participants therein. In this
particular case, probably, we can statutorily provide for the definition of "series" so that two,
for example, would that already be a series? Or, three, what would be the basis for such a
determination?" (Record of the Senate, June 5, 1989, Vol. IV, No. 140, p. 1310).

31"Senator Paterno. Mr. President, not too clear yet on the reason for trying to define a crime
of plunder. Could I get some further clarification?

Senator Tanada. Yes, Mr. President.

Because of our experience in the former regime, we feel that there is a need for
Congress to pass the legislation which would cover a crime of this magnitude. While
it is true, we already have the Anti-Graft Law. But that does not directly deal with
plunder. That covers only the corrupt practices of public officials as well as their
spouses and relatives within the civil degree, and the Anti-Graft law as presently
worded would not adequately or sufficiently address the problems that we
experienced during the past regime.

Senator Paterno. May I try to give the Gentleman, Mr. President, my understanding
of the bill?

Senator Tanada. Yes.

 Senator Paterno. I envision that this bill or this kind of plunder would cover a
discovered interconnection of certain acts, particularly, violations of Anti-Graft and
Corrupt Practices Act when, after the different acts are looked at, a scheme of
conspiracy can be detected, such scheme or conspiracy consummated by the
different criminal acts or violations of Anti-Graft and Corrupt Practices Act, such that
the scheme or conspiracy becomes a sin, as a large scheme to defraud the public or
rob the public treasury. It is parang robo and banda. It is considered as that. And, the
bill seeks to define or says that P100 million is that level at which ay talagang sobra
na dapat nang parusahan ng husto. Would it be a correct interpretation or
assessment of the intent of the bill?

Senator Tanada. Yes, Mr. President. The fact that under existing law, there can be
only one offense charged in the information, that makes it very cumbersome and
difficult to go after these grafters if we would not come out with this bill. That is what
is happening now; because of that rule that there can be only one offense charged
per information, then we are having difficulty in charging all the public officials who
would seem to have committed these corrupt practices. With this bill, we could come
out with just one information, and that would cover all the series of criminal acts that
may have been committed by him.

xxxxxx

Senator Romulo. To follow up the interpolations of Senator Paterno and Maceda, this
crime of plunder as envisioned here contemplates of a series or a scheme as
responded by the distinguished Sponsor.

Senator Tanada. That is correct, Mr. President. (Record of Senate, June 5, 1989,
Vol. IV, No. 140, p. 1315)

xxxxxx

Senator Romulo. Mr. President, I was going to suggest prior to Senator Maceda that
on line 24: "SHALL THROUGH ONE overt or criminal act OR…." I was just thinking
of one which is really not a "series.",

The President. If there is only one, then he has to be prosecuted under the particular
crime. But when we say "acts of plunder" there should be, at least, two or more.
(Record of the Senate, June 6, 1989, Vol. IV, No. 141, p. 1399).

Tarsia v. Nick’s Laundry & Linen Supply Co., 399 P. 2d 28, 29, 239 Or. 562; Words and
32

Phrases, 38A p. 441.

For purposes of Rule permitting government to charge several defendants under one
indictment if they have participated in same "series" of acts or transactions, a
"series" is something more than mere "similar" acts.

33 Opposition to the Motion to Quash of Accused Joseph Estrada dated June 21, 2001, p. 9.

34 Comment to the Amended Petition dated July 16, 2001, p. 14.

35 United States v. Laub, 385 US 475, 17 L Ed 2d 526, 87 S Ct 574.

36 State v. Nelson, 95 N.W. 2d 678.

3722 C.J.S. §24 (2); People v. Bevilacqua, 170 N.Y. S. 2d 423; Lanzetta v. State of New
Jersey, 306 U.S. 451, 59 S Ct 618, 83 L. Ed. 888; United States v. DeCadena, D.C. 105 F.
Supp. 202.
 38 21 Am Jur §17 p. 129.

39 Tresolini and Shapiro, American Constitutional Law, 3rd Edition, p. 23.

40 State v. Evans, 245 P. 2d 788, 73 Idaho 50.

41 Abraham, Perry, Freedom and the Court, 1998, p. 25.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

YNARES-SANTIAGO, J.:

It is an ancient maxim in law that in times of frenzy and excitement, when the desire to do justice is
tarnished by anger and vengeance, there is always the danger that vital protections accorded an
accused may be taken away.

The Plunder Law and its amendment were enacted to meet a national problem demanding
especially immediate and effective attention. By its very nature, the law deserved or required
legislative drafting of the highest order of clarity and precision.

Substantive due process dictates that there should be no arbitrariness, unreasonableness or

ambiguity in any law which deprives a person of his life or liberty. The trial and other procedures
leading to conviction may be fair and proper. But if the law itself is not reasonable legislation, due
process is violated. Thus, an accused may not be sentenced to suffer the lethal injection or life
imprisonment for an offense understood only after judicial construction takes over where Congress
left off, and interpretation supplies its meaning.

The Constitution guarantees both substantive and procedural due process1 as well as the right of the
accused to be informed of the nature and cause of the accusation against him.2 Substantive due
process requires that a criminal statute should not be vague and uncertain.3 More explicitly –

That the terms of a penal statute. . . must be sufficiently explicit to inform those who are subject to it
what conduct on their part will render them liable to penalties, is a well–recognized requirement,
consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which
either forbids or requires the doing of an act in terms so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its application, violates the first essential of
due process.4

The doctrine of constitutional uncertainty is also based on the right of the accused to be informed of
the nature and cause of the accusation.5 Fundamental fairness dictates that a person cannot be sent
to jail for a crime that he cannot with reasonable certainty know he was committing.6 Statutes
defining crimes run afoul of the due process clause if they fail to give adequate guidance to those
who would be law-abiding, to advise defendants of the nature of the offense with which they are
charged or to guide courts trying those who are accused.7 In short, laws which create crime ought to
be so explicit that all men subject to their penalties may know what acts it is their duty to avoid.8

A reading of the Plunder Law immediately shows that it is phrased in a manner not susceptible to
ready or clear understanding. In the desire to cover under one single offense of plunder every
conceivable criminal activity committed by a high government official in the course of his duties,
Congress has come out with a law unduly vague, uncertain and broad.
The doctrines of overbreadth and void-for-vagueness in Constitutional Law were developed in the
context of freedom of speech and of the press. However, they apply equally, if not more so, to
capital offenses. In the present case, what the law seeks to protect or regulate involves the
deprivation of life itself and not merely the regulation of expression.

In its early formulation, the overbreadth doctrine states that a governmental purpose to control or
prevent activities constitutionally subject to regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms.9

A statute, especially one involving criminal prosecution, must be definite to be valid. A statute is
vague or overbroad, in violation of the due process clause, where its language does not convey
sufficiently definite warning to the average person as to the prohibited conduct. A statute is
unconstitutionally vague if people of common intelligence must necessarily guess at its meaning.10

It is not only prosecutors and judges who are concerned. The need for definiteness applies with
greater force to the accused and those in positions where opportunities for them to commit the
proscribed offense are present. They must understand exactly what prohibited activity will be
punished by capital punishment. Sadly, even the record of deliberations in Congress cited in the
motion to quash shows that even the members of the Senate who are illustrious lawyers found the
Plunder Law vague.

Under Section 1 of R.A. 7080 and Section 12 of R.A. 7659, the acquisition of at least
P50,000,000.00 of ill-gotten wealth is punished by reclusion perpetua to death, if committed as
follows:

1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on

the public treasury;

2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or

any other form of pecuniary benefit from any person and/or entity in connection with any
government contract or project or by reason of the office or position of the public officer
concerned;

3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National

Government or any of its subdivisions, agencies or instrumentalities or government-owned or
controlled corporations and their subsidiaries;

4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any
other form of interest or participation including the promise of future employment in any
business enterprise or undertaking;

5) By establishing agricultural, industrial or commercial monopolies or other combinations

and/or implementation of decrees and orders intended to benefit particular persons or
special interests; or

6) By taking undue advantage of official position, authority, relationship, connection or

influence to unjustly enrich himself or themselves at the expense and to the damage and
prejudice of the Filipino people and the Republic of the Philippines.11

The crimes of malversation of public funds and bribery, which appear to be included among the
modes of committing plunder, have acquired well-defined meanings under our present penal
statutes. The accused immediately knows how to defend and justify his actions. The prosecution
understands the quantum and nature of the evidence he has to produce in court. The Judge can
apply the law with straight and positive judgment because there is no vagueness about it.

The Sandiganbayan, however, has ruled that the Plunder Law does not make any reference to any
specific provision of laws other than R.A. 7080, as amended. It is an entirely new offense where
malversation or bribery become "generic terms" according to the court. And since "generic" refers to
an entire group or class of related matters, the discretion given to the prosecutor and the judge
figuratively runs riot.

Under the same paragraph of the Plunder Law, malversation is lumped with "misuse of public funds."
Misuse can be as innocuous as error or it can be as severe as corruption or embezzlement. The
terms "abuse," "distortion," "misapplication," "mismanagement," "poor stewardship," "malpractice,"
"debasement," or "breach of trust," all conceivably fall under the generic term "misuse." Exactly
when does an administrative offense of misuse become the capital crime of plunder? What degree
of misuse is contemplated under the law?

A penal law violates due process where inherently vague statutory language permits selective law
enforcement.12Under the Plunder Law, a crusading public officer who steps on too many important
toes in the course of his campaign could be prosecuted for a capital offense, while for exactly the
same acts, an official who tries to please everybody can be charged whether administratively or for a
much lighter offense.

For instance, direct bribery under Article 210 of the Revised Penal Code is punished with prision
mayor in its medium or minimum periods, prision correccional in its medium period, or prision
mayor in its minimum period, depending on the manner of commission.13 Indirect bribery under
Article 211 is punished with prision correccional in its medium and maximum periods.14 Under the
Plunder Law, the penalty is reclusion perpetua to death. The void-for-vagueness infirmity becomes
all the more apparent if the proscribed activity is "misuse of public funds." The prosecutor is given
broad powers of selective law enforcement. For "misuse," exactly the same acts could be punished
with death under the Plunder Law, or mere dismissal with prejudice to future government
employment under the Civil Service Law.

The provision in the Plunder Law on "implementation of decrees and orders intended to benefit
particular persons or special interests" also calls for more specific elucidation. If the only person
benefited is himself, does that fall under "particular person?" Decrees and orders issued by a top
government official may be intended to benefit certain segments of society such as farmers,
manufacturers, residents of a geographical area and the like. If in the process a close relative
acquires P50,000,000.00 because of development in that sector solely because of the decree and
without lifting a finger, is that plunder? The vagueness can be better appreciated by referring to
petitioner’s arguments that the element of mens rea in mala in se crimes has been abolished and the
offenses have been converted to mala prohibita. If the guilty intent is eliminated, even innocent acts
can be plunder. The law was not drafted for petitioner alone. It applies to all public officers.

As petitioner has stated, what Congress did in enacting the Plunder Law was to take out the
provisions of the Revised Penal Code on malversation, estafa, bribery, and other crimes committed
by public officers, mix these with special laws on graft and corruption and together with a couple of
non-criminal acts, combine them into a special law and call it "plunder."

Early in the history of this Court, it ruled that in acts mala in se, the criminal intent governs. But in
those acts mala prohibita, the only inquiry is: has the law been violated?15 Acts constituting
malversation, estafa, and bribery are mala in se. The courts must inquire into the criminal intent, the
evil nature or wrongful disposition behind the criminal acts. In mala prohibita crimes, there is a
violation of a prohibitory law and the inquiry is, therefore, has the law been violated?

In the crime of plunder, it is enough that the acts defining malversation or bribery are described. The
court then proceeds to determine whether the acts fall under the prohibitory terms of the law.
Criminal intent no longer has to be proved. The criminal intent to commit the crime is not required to
be proved. The desire to benefit particular persons does not have to spring from criminal intent
under the special law creating the crime of plunder. In malversation or bribery under the Revised
Penal Code, the criminal intent is an important element of the criminal acts. Under the Plunder Law,
it is enough that the acts are committed.

Thus, even if the accused can prove lack of criminal intent with respect to crimes mala in se, this will
not exonerate him under the crime mala prohibita. This violates substantive due process and the
standards of fair play because mens rea is a constitutional guarantee under the due process clause.
Indeed, as stated by the U.S. Supreme Court in Morisette v. U.S.:16

The Government asks us by a feat of construction radically to change the weights and balances in
the scales of justice. The purpose and obvious effect of doing away with the requirement of a
guilty intent is to ease the prosecution’s party to conviction, to strip the defendant of such
benefit as he derived at common law from innocence of evil purpose, and to circumscribe the
freedom heretofore allowed juries. Such a manifest impairment of the immunities of the
individual should not be extended to common law crimes on judicial initiative. (Emphasis
ours)

By grafting several felonies, some mala in se and some mala prohibita, to constitute the crime of
plunder and by doing away with the standard of proof beyond reasonable doubt for the component
elements, the State would practically be given the judicial imprimatur to impose the extreme penalty
of death on the basis of proof only of the overall pattern of overt or criminal acts showing unlawful
scheme or conspiracy. This attempt of Congress to tip the scales of criminal justice in favor of the
state by doing away with the element of mens rea and to pave the way for the accused to be
convicted by depriving him of the defense of criminal intent as to mala in se components of plunder
will be anathema to substantive due process which insures "respect for those personal immunities
which are so rooted in the traditions and conscience of our people as to be ranked as
fundamental."17

Equally disagreeable is the provision of the Plunder Law which does away with the requirement that
each and every component of the criminal act of plunder be proved and instead limits itself to
proving only a pattern of overt acts indicative of the unlawful scheme or conspiracy.18 In effect, the
law seeks to penalize the accused only on the basis of a proven scheme or conspiracy, and does
away with the rights of the accused insofar as the component crimes are concerned. In other words,
R.A. No. 7080 circumvents the obligation of the prosecution to prove beyond reasonable doubt every
fact necessary to constitute the crime of plunder, because the law requires merely proof of a pattern
of overt acts showing an unlawful scheme or conspiracy. What aggravates matters on this point is
that under controlling case law, conspiracy to defraud is not punishable under the Revised Penal
Code.19 Cutting corners on the burden of proof is unconstitutional because the standard of
reasonable doubt is part of the due process safeguard accorded an accused. The due process
clause protects the accused against conviction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with which he is charged.20

Under R.A. 7659, plunder is a heinous crime punishable by death. It is described as grievous, odious
and hateful because of its inherent or magnified wickedness, viciousness, atrocity, and perversity.
There can be no quarrel with the legislative objective of reducing the upsurge of such crimes which
affect sustainable economic development and undermine the people’s faith in Government and the
latter’s ability to maintain peace and order. Nevertheless, due process commands that even though
the governmental purpose is legitimate and substantial, that purpose cannot be pursued by means
so vague and broad that they infringe on life or stifle liberty when the end can be more narrowly
achieved through existing penal statutes.

Where the statute has an overbroad sweep just as when it is vague, the hazard of loss or
impairment of life or liberty is critical.21

The problem of vagueness is reduced or eliminated if the different schemes mentioned in the law as
used in the acquisition of ill-gotten wealth are prosecuted under existing penal law. The offenses are
by their nature distinct and separate from each other and have acquired established meanings.

Thus, the acts of misappropriation or malversation may be prosecuted as separate offenses. So may
the receipt of commissions, gifts, or kickbacks by higher officials in connection with government
contracts. The four other methods or schemes mentioned in the law may be the objects of separate
penal statutes.

When the law creates a new crime of plunder through a combination or series of overt or criminal
acts, the courts have to supply missing elements if conviction is to be achieved.
Bribery is punished as plunder under the law only when there is a combination or series of criminal
acts. But when do certain acts constitute a combination or series? Does the Plunder law provide that
two or three acts of one crime of bribery constitute a combination or series which qualify bribery into
plunder? Or does bribery have to be conjoined with the separate offense of malversation to become
a combination? Or with malversation and fraudulent conveyance or disposition of public assets or
one of the other means or schemes before it becomes a series?

I find it difficult to accept the wide discretion given to the prosecution by the Plunder Law. An elective
official who is a political threat may be charged for plunder as one single offense punishable by
death while one in the good graces of the powers-that-be is charged only under the Revised Penal
Code.

The confusion generated by a vague law is exemplified in the informations filed against petitioner in
this case. Petitioner was charged with eight crimes, namely: [1] plunder; [2] violation of Section 3 (e)
of R.A. 3019; [3] violation of Section 3 (a) of R.A. 3019; [4] another violation of Section 3 (e) of R.A.
3019; [5] violation of Section 3 (c) of R.A. 3019; [6] violation of Section 7 (d) of R.A. 6713; [7] perjury;
[8] illegal use of alias.

Only twelve days later, the prosecution withdrew five (5) of the informations which it consolidated
into only one offense of plunder. The prosecution was not clear about the steps to take in instances
where the words "combination" or "series" may or may not apply. It could not understand the
coverage of the law as acts repetitive of the same offense or acts constituting one crime lumped up
with other crimes or both criminal and non-criminal acts punished as one new offense of plunder.

In the following exchange during the deliberations on Senate Bill No. 733, Senators Neptali
Gonzales and Wigberto Tanada voiced serious doubts on the constitutionality of the definition of
plunder, thus:

Senator Gonzales:

To commit the offense of plunder, as defined in this act, and while constituting a single offense, it
must consist of a series of overt or criminal acts, such as bribery, extortion, malversation of public
funds, swindling, falsification of public documents, coercion, theft, fraud, and illegal exaction and
graft or corrupt practices and like offenses. Now, Mr. President, I think this provision, by itself will
be vague. I am afraid that it may be faulted for being violative of the due process clause and
the right to be informed of the nature and cause of accusation of an accused. Because what
is meant by "series of overt or criminal acts?" I mean, would 2, 4, or 5 constitute a
series? During the period of amendments, can we establish a minimum of overt acts like, for
example, robbery in band? The law defines what is robbery in band by the number of participants
therein. In this particular case, probably, we can statutorily provide for the definition of "series"
so that two, for example, would that already be a series? Or, three, what would be the basis
for such determination?

Senator Tanada:

I think, Mr. President, that would be called for, this being a penal legislation, we should be very
clear as to what it encompasses; otherwise, we may contravene the constitutional provision
on the right of accused to due process. (Emphasis ours)22

The foregoing concerns to statutorily provide for the definition of "series" or "combination" have,
however, not been addressed and the terms were left undefined. The law, as presently crafted, does
not specify whether a "series" means two, three, four or even more of the overt or criminal acts listed
in Section 1 (d) of R.A. 7080.

Even more difficult to accept is when the trial court has to supply the missing elements, in effect
taking over corrective or punitive legislation from Congress. The attempts of the Sandiganbayan in
the questioned Resolution do not clarify. They instead serve to confuse and increase the ambiguity
even more.
The Sandiganbayan interprets the words "combination" and "series" of overt or criminal acts through
terms found in American decisions like "pattern," "conspiracy," "over-all unlawful scheme," or
"general plan of action or method."

The above definitions are not found in the Plunder Law. The use of such phrases as "over-all
scheme" or "general plan" indicates that the Sandiganbayan is expanding the coverage of the law
through the use of ambiguous phrases capable of dual or multiple applications. When do two or
three acts of the same offense of malversation constitute a "pattern," "a general plan of action," or an
"over-all scheme?" Would one malversation in the first week of a public officer’s tenure and another
similar act six (6) years later become a "combination," a "pattern," or a "general plan of action?"

I agree with petitioner’s concern over the danger that the trial court may allow the specifications of
details in an information to validate a statute inherently void for vagueness. An information cannot
rise higher than the statute upon which it is based. Not even the construction by the Sandiganbayan
of a vague or ambiguous provision can supply the missing ingredients of the Plunder Law.

The right of an accused to be informed of the nature and cause of the accusation against him is
most often exemplified in the care with which a complaint or information should be drafted. However,
the clarity and particularity required of an information should also be present in the law upon which
the charges are based. If the penal law is vague, any particularity in the information will come from
the prosecutor. The prosecution takes over the role of Congress.

The fact that the details of the charges are specified in the Information will not cure the statute of its
constitutional infirmity. If on its face the challenged provision is repugnant to the due process clause,
specification of details of the offense intended to be charged would not serve to validate it.23 In other
words, it is the statute, not the accusation under it, that prescribes the rule to govern conduct and
warns against transgression. No one may be required at peril of life, liberty or property to speculate
as to the meaning of penal statutes. All are entitled to be informed as to what the State commands
or forbids.24

Definiteness is a due process requirement. It is especially important in its application to penal

statutes. Vagueness and unintelligibility will invariably lead to arbitrary government action. The
purpose of the due process clause is to exclude everything that is arbitrary and capricious affecting
the rights of the citizen.25 Congress, in exercising its power to declare what acts constitute a crime,
must inform the citizen with reasonable precision what acts it intends to prohibit so that he may have
a certain understandable rule of conduct and know what acts it is his duty to avoid.26

The questioned statutes were enacted purportedly in the interest of justice, public peace and order,
and the rule of law. These purposes are not served by R.A. Nos. 7080 and 7659. These statutes
allow the prosecutors and the courts arbitrary and too broad discretionary powers in their
enforcement. Fair, equal and impartial justice would be denied.

For all the foregoing reasons, I vote to grant the petition and nullify the Plunder Law for being
unconstitutional.

Footnotes

1 Constitution, Article III, Sections 1, 12 & 14.

2 Constitution, Article III, Section 14.

3 People v. Nazario, 165 SCRA 186, 195 [1988].

4 Connally v. General Construction Co., 269 U.S. 385 [1926].

5 Yu Cong Eng v. Trinidad, 271 U.S. 500 [1926].

6 People v. Nazario, supra; Scull v. Commonwealth, 359 U.S. 344, 353.

7 Musser v. Utah, 333 U.S. 95; 92 L Ed. 562.

8 U.S. v. Brewer, 139 U.S. 278, 35 L Ed. 190, 193.

9National Association for the Advancement of Colored People (NAACP) v. Alabama, 377
U.S. 288.

10 U.S. v. Petrillo, 332 U.S. 1; U.S. v. Spector, 343 U.S. 169; U.S. v. Darby, 312 U.S. 100.

11 Republic Act No. 7080, Section 1 (d).

12 Smith v. Goguen, 415 U.S. 566.

13"Any public officer who shall agree to perform an act constituting a crime, in connection
with the performance of his official duties, in consideration of any offer, promise, gift or
present received by such officer, personally or through the mediation of another, shall suffer
the penalty of prision mayor in its medium and minimum periods and a fine of not less than
three times the value of the gift, in addition to the penalty corresponding to the crime agreed
upon, if the same shall have been committed.

"If the gift was accepted by the officer in consideration of the execution of an act
which does not constitute a crime, and the officer executed said act, he shall suffer
the same penalty provided in the preceding paragraph; and if said act shall not have
been accomplished, the officer shall suffer the penalties of prision correccional in its
medium period and a fine of not less than twice the value of such gift.

"If the object for which the gift was received or promised was to make the public
officer refrain from doing something which it was his official duty to do, he shall suffer
the penalties of prision correccionalin its maximum period to prision mayor in its
minimum period and a fine of not less than three times the value of such gift.

"In addition to the penalties provided in the preceding paragraphs, the culprit shall
suffer the penalty of special temporary disqualification.

"The provisions contained in the preceding paragraphs shall be made applicable to

assessors, arbitrators, appraisal and claim commissioners, experts or any other
persons performing public duties."

14"The penalties of prision correccional in its medium and maximum periods, suspension and
public censure shall be imposed upon any public officer who shall accept gifts offered to him
by reason of his office."

15 U.S. v. Go Chico, 14 Phil. 134 [1909].

16 342 U.S. 246.

17 Rochin v. California, 324 U.S. 165, 168.

18Republic Act No. 7080, "Section 4. Rule of Evidence. –-- For purposes of establishing the
crime of plunder, it shall not be necessary to prove each and every criminal act done by the
accused in furtherance of the scheme or conspiracy to amass, accumulate of acquire ill-
gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt
criminal acts indicative of the overall unlawful scheme or conspiracy."
 19 U.S. v. Lim Buanco, 14 Phil. 472 [1910]; U.S. v. Remigio, 39 Phil. 599 [1919].

20 In re Winship, 397 U.S. 358 ,364.

21See Keyshian v. Board of Regents of the University of the State of New York, 385 U.S.
589; and Shelton v. Tucker, 364 U.S. 479.

22 Record of the Senate, June 5, 1989, Vol. IV, No. 140, p. 1310.

23 Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939).

24 Ibid., p. 453.

25 Nebbia v. New York, 291 U.S. 502.

26Musser v. Utah, supra; Giaccio v. Pennsylvania, 382 U.S. 399; United States v.
Brewer, supra.

The Lawphil Project - Arellano Law Foundation

MENDOZA, J., concurring in the judgment:

Before I explain my vote, I think it necessary to restate the basic facts.

Petitioner Joseph Ejercito Estrada was President of the Philippines until January 20, 2001 when he
was forced to vacate the presidency by people power and then Vice President Gloria Macapagal-
Arroyo succeeded him in office.1He was charged, in eight cases filed with the Sandiganbayan, with
various offenses committed while in office, among them plunder, for allegedly having amassed ill-
gotten wealth in the amount of P4.1 billion, more or less. He moved to quash the information for
plunder on the ground that R.A. No. 7080, otherwise called the Anti-Plunder Law, is unconstitutional
and that the information charges more than one offense.

In its resolution dated July 9, 2001, the Sandiganbayan denied petitioner’s motion, along with those
filed by his co-accused, Edward Serapio, and his son, Jose "Jinggoy" Estrada. Petitioner brought this
petition for certiorari and prohibition under Rule 65 to set aside the Sandiganbayan’s resolution
principally on the ground that the Anti-Plunder Law is void for being vague and overbroad. We gave
due course to the petition and required respondents to file comments and later heard the parties in
oral arguments on September 18, 2001 and on their memoranda filed on September 28, 2001 to
consider the constitutional claims of petitioner.

I. THE ANTI-PLUNDER LAW

The Anti-Plunder Law (R.A. No. 7080) was enacted by Congress on July 12, 1991 pursuant to the
constitutional mandate that "the State shall maintain honesty and integrity in the public service and
take positive and effective measures against graft and corruption."2 Section 2 of the statute provides:

Definition of the Crime of Plunder; Penalties. ¾ Any public officer who, by himself or in connivance
with members of his family, relatives by affinity or consanguinity, business associates, subordinates
or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or
series of overt or criminal acts as described in Section 1(d) hereof in the aggregate amount or total
value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall
be punished by reclusion perpetua to death. Any person who participated with the said public officer
in the commission of an offense contributing to the crime of plunder shall likewise be punished for
such offense. In the imposition of penalties, the degree of participation and the attendance of
mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be
considered by the court. The court shall declare any and all ill-gotten wealth and their interests and
other incomes and assets including the properties and shares of stocks derived from the deposit or
investment thereof forfeited in favor of the State. (As amended by Sec. 12, R.A. No. 7659).

The term "ill-gotten wealth" is defined in §1(d) as follows:

"Ill-gotten wealth," means any asset, property, business enterprise or material possession of any
person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through
dummies, nominees, agents, subordinates and/or business associates by any combination or series
of the following means or similar schemes:

1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on

the public treasury.

2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or

any other form of pecuniary benefit from any person and/or entity in connection with any
government contract or project or by reason of the office or position of the public officer
concerned;

3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National

Government or any of its subdivisions, agencies or instrumentalities or government-owned or
controlled corporations and their subsidiaries.

4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any
other form of interest or participation including the promise of future employment in any
business enterprise or undertaking;

5) By establishing agricultural, industrial or commercial monopolies or other combinations

and/or implementation of decrees and orders intended to benefit particular persons or
special interests; or

6) By taking undue advantage of official position, authority, relationship, connection or

influence to unjustly enrich himself or themselves at the expense and to the damage and
prejudice of the Filipino people and the Republic of the Philippines.

Section 4 of the said law states:

Rule of Evidence. ¾ For purposes of establishing the crime of plunder, it shall not be necessary to
prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy
to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable
doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.

II. ANTI-PLUNDER LAW NOT TO BE JUDGED

"ON ITS FACE"

The amended information against petitioner charges violations of §2, in relation to §1(d)(1)(2), of the
statute. It reads:

AMENDED INFORMATION

The undersigned Ombudsman Prosecutor and OIC-Director, EPIB, Office of the Ombudsman,
hereby accuses former President of the Republic of the Philippines, Joseph Ejercito Estrada a.k.a
"Asiong Salonga" and a.k.a "Jose Velarde," together with Jose "Jinggoy" Estrada, Charlie "Atong"
Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a. Eleuterio Tan or Eleuterio
Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John Does & Jane Does, of the crime of
plunder, defined and penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659,
committed as follows:
That during the period from June, 1998 to January, 2001, in the Philippines, and within the
jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, then a public officer, being
then the President of the Republic of the Philippines, by himself and/or in connivance/conspiracy
with his co-accused, who are members of his family, relatives by affinity or consanguinity, business
associates, subordinates and/or other persons, by taking undue advantage of his official position,
authority, relationship, connection, or influence, did then and there wilfully, unlawfully and criminally
amass, accumulate and acquire by himself, directly or indirectly, ill-gotten wealth in the aggregate
amount or total value of four billion ninety seven million eight hundred four thousand one hundred
seventy three pesos and seventeen centavos [P4,097,804,173.17], more or less, thereby unjustly
enriching himself or themselves at the expense and to the damage of the Filipino people and the
Republic of the Philippines, through any or a combination or a series of overt or criminal acts, or
similar schemes or means, described as follows:

(a) by receiving or collecting, directly or indirectly, on several instances, money in the

aggregate amount of five hundred forty-five million pesos (P545,000,000.00), more or less,
from illegal gambling in the form of gift, share, percentage, kickback or any form of pecuniary
benefit, by himself and/or in connivance with co-accused Charlie "Atong" Ang, Jose
"Jinggoy" Estrada, Yolanda T. Ricaforte, Edward Serapio, and John Does and Jane Does, in
consideration of toleration or protection of illegal gambling;

(b) by diverting, receiving, misappropriating, converting or misusing directly or indirectly, for

his or their personal gain and benefit, public funds in the amount of ONE HUNDRED THIRTY
MILLION PESOS [P130,000,000.00], more or less, representing a portion of the two hundred
million pesos [P200,000,000.00] tobacco excise tax share allocated for the Province of Ilocos
Sur under R.A. No. 7171, by himself and/or in connivance with co-accused Charlie "Atong"
Ang, Alma Alfaro, John Doe a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, and
Jane Doe a.k.a. Delia Rajas, and other John Does and Jane Does;

(c) by directing, ordering and compelling, for his personal gain and benefit, the Government
Service Insurance System (GSIS) to purchase 351,878,000 shares of stocks, more or less,
and the Social Security System (SSS), 329,855,000 shares of stocks, more or less, of the
Belle Corporation in the amount of more or less one billion one hundred two million nine
hundred sixty five thousand six hundred seven pesos and fifty centavos [P1,102,965,607.50]
and more or less seven hundred forty four million six hundred twelve thousand and four
hundred fifty pesos [P744,612,450.00], respectively, or a total of more or less one billion
eight hundred forty seven million five hundred seventy eight thousand fifty seven pesos and
fifty centavos [P1,847,578,057.50]; and by collecting or receiving, directly or indirectly, by
himself and/or in connivance with John Does and Jane Does, commissions or percentages
by reason of said purchases of shares of stock in the amount of one hundred eighty nine
million seven hundred thousand pesos [P189,700,000.00], more or less, from the Belle
Corporation which became part of the deposit in the Equitable-PCI Bank under the account
name "Jose Velarde";

(d) by unjustly enriching himself from commissions, gifts, shares, percentages, kickbacks, or
any form of pecuniary benefits, in connivance with John Does and Jane Does, in the amount
of more or less three billion two hundred thirty three million one hundred four thousand one
hundred seventy three pesos and seventeen centavos [P3,233,104,173.17] and depositing
the same under his account name "Jose Velarde" at the Equitable-PCI Bank.

CONTRARY TO LAW.

Manila for Quezon City, Philippines, 18 April 2001

But, although this is a prosecution under §2, in relation to §1(d)(1)(2), what we are seeing here is a
wholesale attack on the validity of the entire statute. Petitioner makes little effort to show the alleged
invalidity of the statute as applied to him. His focus is instead on the statute as a whole as he attacks
"on their face" not only §§1(d)(1)(2) of the statute but also its other provisions which deal with
plunder committed by illegal or fraudulent disposition of government assets (§1(d)(3)), acquisition of
interest in business (§1(d)(4)), and establishment of monopolies and combinations or
implementation of decrees intended to benefit particular persons or special interests (§1(d)(5)).

These other provisions of the statute are irrelevant to this case. What relevance do questions
regarding the establishment of monopolies and combinations, or the ownership of stocks in a
business enterprise, or the illegal or fraudulent dispositions of government property have to the
criminal prosecution of petitioner when they are not even mentioned in the amended information filed
against him? Why should it be important to inquire whether the phrase "overt act" in §1(d) and §2
means the same thing as the phrase "criminal act" as used in the same provisions when the acts
imputed to petitioner in the amended information are criminal acts? Had the provisions of the
Revised Penal Code been subjected to this kind of line-by-line scrutiny whenever a portion thereof
was involved in a case, it is doubtful if we would have the jurisprudence on penal law that we have
today. The prosecution of crimes would certainly have been hampered, if not stultified. We should
not even attempt to assume the power we are asked to exercise. "The delicate power of
pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical
cases . . . . In determining the sufficiency of the notice a statute must of necessity be examined in
the light of the conduct with which a defendant is charged."3

Nonetheless, it is contended that because these provisions are void for being vague and overbroad,
the entire statute, including the part under which petitioner is being prosecuted, is also void. And if
the entire statute is void, there is no law under which he can be prosecuted for plunder. Nullum
crimen sine lege, nullum poena sine lege.

Two justifications are advanced for this facial challenge to the validity of the entire statute. The first is
that the statute comes within the specific prohibitions of the Constitution and, for this reason, it must
be given strict scrutiny and the normal presumption of constitutionality should not be applied to it nor
the usual judicial deference given to the judgment of Congress.4 The second justification given for
the facial attack on the Anti-Plunder Law is that it is vague and overbroad.5

We find no basis for such claims either in the rulings of this Court or of those of the U.S. Supreme
Court, from which petitioner’s counsel purports to draw for his conclusions. We consider first the
claim that the statute must be subjected to strict scrutiny.

A. Test of Strict Scrutiny Not Applicable to Penal Statutes

Petitioner cites the dictum in Ople v. Torres6 that "when the integrity of a fundamental right is at
stake, this Court will give the challenged law, administrative order, rule or regulation stricter scrutiny"
and that "It will not do for authorities to invoke the presumption of regularity in the performance of
official duties." As will presently be shown, "strict scrutiny," as used in that decision, is not the same
thing as the "strict scrutiny" urged by petitioner. Much less did this Court rule that because of the
need to give "stricter scrutiny" to laws abridging fundamental freedoms, it will not give such laws the
presumption of validity.

Petitioner likewise cites "the most celebrated footnote in [American] constitutional law," i.e., footnote
4 of the opinion in United States v. Carolene Products Co.,7 in which it was stated:

There may be narrower scope for operation of the presumption of constitutionality when legislation
appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten
amendments, which are deemed equally specific when held to be embraced within the Fourteenth.

It is unnecessary to consider now whether legislation which restricts those political processes which
can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more
exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most
other types of legislation.

Nor need we inquire whether similar considerations enter into the review of statutes directed at
particular religious, or national, or racial minorities: whether prejudice against discrete and insular
minorities may be a special condition, which tends seriously to curtail the operation of those political
processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly
more searching judicial inquiry.

Again, it should be noted that what the U.S. Supreme Court said is that "there may be narrower
scope for the operation of the presumption of constitutionality" for legislation which comes within the
first ten amendments to the American Federal Constitution compared to legislation covered by the
Fourteenth Amendment Due Process Clause. The American Court did not say that such legislation
is not to be presumed constitutional, much less that it is presumptively invalid, but only that a
"narrower scope" will be given for the presumption of constitutionality in respect of such statutes.
There is, therefore, no warrant for petitioner’s contention that "the presumption of constitutionality of
a legislative act is applicable only where the Supreme Court deals with facts regarding ordinary
economic affairs, not where the interpretation of the text of the Constitution is involved."8

What footnote 4 of the Carolene Products case posits is a double standard of judicial review: strict
scrutiny for laws dealing with freedom of the mind or restricting the political process,
and deferential or rational basis standard of review for economic legislation. As Justice (later Chief
Justice) Fernando explained in Malate Hotel and Motel Operators Ass’n v. The City Mayor,9 this
simply means that "if the liberty involved were freedom of the mind or the person, the standard for
the validity of governmental acts is much more rigorous and exacting, but where the liberty curtailed
affects what are at the most rights of property, the permissible scope of regulatory measures is
wider."

Hence, strict scrutiny is used today to test the validity of laws dealing with the regulation of speech,
gender, or race and facial challenges are allowed for this purpose. But criminal statutes, like the
Anti-Plunder Law, while subject to strict construction, are not subject to strict scrutiny. The two (i.e.,
strict construction and strict scrutiny) are not the same. The rule of strict construction is a rule of
legal hermeneutics which deals with the parsing of statutes to determine the intent of the legislature.
On the other hand, strict scrutiny is a standard of judicial review for determining the quality and the
amount of governmental interest brought to justify the regulation of fundamental freedoms. It is set
opposite such terms as "deferential review" and "intermediate review."

Thus, under deferential review, laws are upheld if they rationally further a legitimate governmental
interest, without courts seriously inquiring into the substantiality of such interest and examining the
alternative means by which the objectives could be achieved. Under intermediate review, the
substantiality of the governmental interest is seriously looked into and the availability of less
restrictive alternatives are considered. Under strict scrutiny, the focus is on the presence of
compelling, rather than substantial, governmental interest and on the absence of less restrictive
means for achieving that interest.10

Considering these degrees of strictness in the review of statutes, how many criminal laws can
survive the test of strict scrutiny to which petitioner proposes to subject them? How many can pass
muster if, as petitioner would have it, such statutes are not to be presumed constitutional? Above all,
what will happen to the State’s ability to deal with the problem of crimes, and, in particular, with the
problem of graft and corruption in government, if criminal laws are to be upheld only if it is shown
that there is a compelling governmental interest for making certain conduct criminal and if there is no
other means less restrictive than that contained in the law for achieving such governmental interest?

B. Vagueness and Overbreadth Doctrines, as Grounds for Facial Challenge,

Not Applicable to Penal Laws

Nor do allegations that the Anti-Plunder Law is vague and overbroad justify a facial review of its
validity. The void-for-vagueness doctrine states that "a statute which either forbids or requires the
doing of an act in terms so vague that men of common intelligence must necessarily guess at its
meaning and differ as to its application, violates the first essential of due process of law."11 The
overbreadth doctrine, on the other hand, decrees that "a governmental purpose may not be achieved
by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms."12

A facial challenge is allowed to be made to a vague statute and to one which is overbroad because
of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or
proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating
the statutes in a single prosecution, the transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly broad statutes with no requirement that
the person making the attack demonstrate that his own conduct could not be regulated by a statute
drawn with narrow specificity."13 The possible harm to society in permitting some unprotected speech
to go unpunished is outweighed by the possibility that the protected speech of others may be
deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad
statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect
resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State
may well be prevented from enacting laws against socially harmful conduct. In the area of criminal
law, the law cannot take chances as in the area of free speech.

The overbreadth and vagueness doctrines then have special application only to free speech cases.
They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an
opinion by Chief Justice Rehnquist, "we have not recognized an ‘overbreadth’ doctrine outside the
limited context of the First Amendment."14 In Broadrick v. Oklahoma,15 the Court ruled that "claims of
facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to
regulate only spoken words" and, again, that "overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws that are sought to be applied to protected
conduct." For this reason, it has been held that "a facial challenge to a legislative Act is … the most
difficult challenge to mount successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid."16 As for the vagueness doctrine, it is said
that a litigant may challenge a statute on its face only if it is vague in all its possible applications. "A
plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness
of the law as applied to the conduct of others."17

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed
for testing "on their faces" statutes in free speech cases or, as they are called in American law, First
Amendment cases. They cannot be made to do service when what is involved is a criminal statute.
With respect to such statute, the established rule is that "one to whom application of a statute is
constitutional will not be heard to attack the statute on the ground that impliedly it might also be
taken as applying to other persons or other situations in which its application might be
unconstitutional."18 As has been pointed out, "vagueness challenges in the First Amendment context,
like overbreadth challenges typically produce facial invalidation, while statutes found vague as a
matter of due process typically are invalidated [only] ‘as applied’ to a particular
defendant."19 Consequently, there is no basis for petitioner’s claim that this Court review the Anti-
Plunder Law on its face and in its entirety.

C. Anti-Plunder Law Should be Construed "As Applied"

Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that
they might be applied to parties not before the Court whose activities are constitutionally
protected.20 It constitutes a departure from the case and controversy requirement of the Constitution
and permits decisions to be made without concrete factual settings and in sterile abstract
contexts.21 But, as the U.S. Supreme Court pointed out in Younger v. Harris:22

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of
these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the
judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative
process of the relief sought, and above all the speculative and amorphous nature of the required
line-by-line analysis of detailed statutes,...ordinarily results in a kind of case that is wholly
unsatisfactory for deciding constitutional questions, whichever way they might be decided.

This is the reason "on its face" invalidation of statutes has been described as "manifestly strong
medicine," to be employed "sparingly and only as a last resort,"23 and is generally disfavored.24 In
determining the constitutionality of a statute, therefore, its provisions which are alleged to have been
violated in a case must be examined in the light of the conduct with which the defendant is
charged.25

This brings me to the question whether, as applied, §2, in relation to §1(d)(1)(2), of the Anti-Plunder
Law is void on the ground of vagueness and overbreadth.

III. ANTI-PLUNDER LAW NEITHER VAGUE NOR OVERBROAD

As earlier noted, the case against petitioner Joseph Ejercito Estrada in the Sandiganbayan is for
violation of §2, in relation to §1(d)(1)(2), of the Anti-Plunder Law, which, so far as pertinent, provide:

SEC. 2. Definition of the Crime of Plunder; Penalties. ¾ Any public officer who, by himself or in
connivance with members of his family, relatives by affinity or consanguinity, business associates,
subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a
combination or series of overt or criminal acts as described in Section 1(d) hereof in the aggregate
amount or total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of
plunder and shall be punished by reclusion perpetua to death....

SEC. 1. Definition of Terms. ¾ ...

(d) "Ill-gotten wealth," means any asset, property, business enterprise or material possession of any
person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through
dummies, nominees, agents, subordinates and/or business associates by any combination or series
of the following means or similar schemes:

1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on

the public treasury.

2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or

any other form of pecuniary benefit from any person and/or entity in connection with any
government contract or project or by reason of the office or position of the public officer
concerned;

The charge is that in violation of these provisions, during the period June 1998 to January 2001,
petitioner, then the President of the Philippines, willfully, unlawfully, and criminally amassed wealth
in the total amount of P4,097,804,173.17, more or less, through "a combination or series of overt or
criminal acts," to wit: (1) by receiving or collecting the total amount of P545,000,000.00, more or
less, from illegal gambling by himself and/or in connivance with his co-accused named therein, in
exchange for protection of illegal gambling; (2) by misappropriating, converting, or misusing, by
himself or in connivance with his co-accused named therein, public funds amounting to
P130,000,000.00, more or less, representing a portion of the share of the Province of Ilocos Sur in
the tobacco excise tax; (3) by ordering the GSIS and the SSS to buy shares of stocks of the Belle
Corp., worth P1,102,965,607.50 and P744,612,450.00 respectively, or the total amount of
P1,847,578,057.50, for which he received as commission the amount of P189,700,000.00, more or
less, from Belle Corp.; (4) by unjustly enriching himself from commissions, gifts, shares,
percentages, and kickbacks in the amount of P3,233,104,173.17, which he deposited in the
Equitable-PCI Bank under the name of "Jose Velarde."

Anyone reading the law in relation to this charge cannot possibly be mistaken as to what petitioner is
accused of in Criminal Case No. 26558 of the Sandiganbayan. But, repeatedly, petitioner complains
that the law is vague and deprives him of due process. He invokes the ruling in Connally v. General
Constr. Co.26 that "a statute which either forbids or requires the doing of an act in terms so vague
that men of common intelligence must necessarily guess at its meaning and differ as to its
application, violates the first essential of due process of law." He does this by questioning not only
§2, in relation to §1(d)(1)(2), as applied to him, but also other provisions of the Anti-Plunder Law not
involved in this case. In 55 out of 84 pages of discussion in his Memorandum, petitioner tries to
show why on their face these provisions are vague and overbroad by asking questions regarding the
meaning of some words and phrases in the statute, to wit:
 1. Whether "series" means two, three, or four overt or criminal acts listed in §1(d) in view of
the alleged divergence of interpretation given to this word by the Ombudsman, the Solicitor
General, and the Sandiganbayan, and whether the acts in a series should be directly related
to each other;

2. Whether "combination" includes two or more acts or at least two of the "means or similar
schemes" mentioned in §1(d);

3. Whether "pattern" as used in §1(d) must be related to the word "pattern" in §4 which
requires that it be "indicative of an overall unlawful scheme or conspiracy";

4. Whether "overt" means the same thing as "criminal";

5. Whether "misuse of public funds" is the same as "illegal use of public property or technical
malversation";

6. Whether "raids on the public treasury" refers to raids on the National Treasury or the
treasury of a province or municipality;

7. Whether the receipt or acceptance of a gift, commission, kickback, or pecuniary benefits in

connection with a government contract or by reason of his office, as used in §1(d)(2), is the
same as bribery in the Revised Penal Code or those which are considered corrupt practices
of public officers;

8. Whether "illegal or fraudulent conveyance or disposition of assets belonging to the

National Government," as used in §1(d)(3), refers to technical malversation or illegal use of
public funds or property in the Revised Penal Code;

9. Whether mere ownership of stocks in a private corporation, such as a family firm engaged
in fishing, is prohibited under §1(d)(4);

10. Whether the phrase "monopolies or other combinations in restraint of trade" in §1(d)(5)
means the same thing as "monopolies and combinations in restraint of trade" in the Revised
Penal Code because the latter contemplates monopolies and combinations established by
any person, not necessarily a public officer; and

11. Whether under §1(d)(5) it is the public officer who intends to confer benefit on a particular
person by implementing a decree or it is the decree that is intended to benefit the particular
person and the public officer simply implements it.

Many more questions of this tenor are asked in the memorandum of petitioner27 as well as in the
dissent of MR. JUSTICE KAPUNAN. Not only are they irrelevant to this case, as already pointed out.
It is also evident from their examination that what they present are simply questions of statutory
construction to be resolved on a case-to-case basis. Consider, for example, the following words and
phrases in §1(d) and §2:

A. "Combination or series of overt or criminal acts"

Petitioner contends that the phrase "combination or series of overt, or criminal acts" in §1(d) and §2
should state how many acts are needed in order to have a "combination" or a "series." It is not really
required that this be specified. Petitioner, as well as MR. JUSTICE KAPUNAN, cites the following
remarks of Senators Gonzales and Tañada during the discussion of S. No. 733 in the Senate:

SENATOR GONZALES. To commit the offense of plunder, as defined in this Act while constituting a
single offense, it must consist of a series of overt or criminal acts, such as bribery, extortion,
malversation of public funds, swindling, falsification of public documents, coercion, theft, fraud, and
illegal exaction, and graft or corrupt practices act and like offenses. Now, Mr. President, I think, this
provision, by itself, will be vague. I am afraid that it might be faulted for being violative of the due
process clause and the right to be informed of the nature and cause of accusation of an accused.
Because, what is meant by "series of overt or criminal acts"? I mean, would 2, 3, 4 or 5 constitute a
series? During the period of amendments, can we establish a minimum of overt acts like, for
example, robbery in band? The law defines what is robbery in band by the number of participants
therein.

In this particular case, probably, we can statutorily provide for the definition of "series" so that two,
for example, would that be already a series? Or, three, what would be the basis for such a
determination?

SENATOR TAÑADA. I think, Mr. President, that would be called for, this being a penal legislation,
we should be very clear as to what it encompasses; otherwise, we may contravene the constitutional
provision on the right of the accused to due process.28

But, as the later discussion in the Senate shows, the senators in the end reached a consensus as to
the meaning of the phrase so that an enumeration of the number of acts needed was no longer
proposed. Thus, the record shows:

SENATOR MACEDA. In line with our interpellations that sometimes "one" or maybe even "two" acts
may already result in such a big amount, on line 25, would the Sponsor consider deleting the words
"a series of overt or." To read, therefore: "or conspiracy COMMITTED by criminal acts such."
Remove the idea of necessitating "a series." Anyway, the criminal acts are in the plural.

SENATOR TAÑADA. That would mean a combination of two or more of the acts mentioned in this.

THE PRESIDENT. Probably, two or more would be . . .

SENATOR MACEDA. Yes, because "a series" implies several or many; two or more.

SENATOR TAÑADA: Accepted, Mr. President.

....

THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime. But
when we say "acts of plunder" there should be, at least, two or more.

SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President.29

Indeed, the record shows that no amendment to S. No. 733 was proposed to this effect. To the
contrary, Senators Gonzales and Tañada voted in favor of the bill on its third and final reading on
July 25, 1989. The ordinary meaning of the term "combination" as the "union of two things or acts"
was adopted, although in the case of "series," the senators agreed that a repetition of two or more
times of the same thing or act would suffice, thus departing from the ordinary meaning of the word
as "a group of usually three or more things or events standing or succeeding in order and having a
like relationship to each other," or "a spatial or temporal succession of persons or things," or "a
group that has or admits an order of arrangement exhibiting progression."30

In the Bicameral Conference Committee on Justice meeting held on May 7, 1991, the same
meanings were given to the words "combination" and "series." Representative Garcia explained that
a combination is composed of two or more of the overt or criminal acts enumerated in §1(d), while a
series is a repetition of any of the same overt or criminal acts. Thus:

REP. ISIDRO: I am just intrigued again by our definition of plunder. We say, THROUGH A
COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE
HEREOF. Now when we say combination, we actually mean to say, if there are two or more means,
we mean to say that number one and two or number one and something else are included, how
about a series of the same act? For example, through misappropriation, conversion, misuse, will
these be included also?
....

REP. ISIDRO: When we say combination, it seems that ¾

THE CHAIRMAN (REP. GARCIA): Two.

REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of
one enumeration.

THE CHAIRMAN (REP. GARCIA): No, no, not twice.

REP. ISIDRO: Not twice?

THE CHAIRMAN (REP. GARCIA): Yes, combination is not twice ¾ but combination, two acts.

REP. ISIDRO: So in other words, that’s it. When we say combination, we mean, two different acts. It
can not be a repetition of the same act.

THE CHAIRMAN (REP. GARCIA): That be referred to series. Yeah.

REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.

THE CHAIRMAN (REP. GARCIA): A series.

REP. ISIDRO: That’s not [a] series. It’s a combination. Because when we say combination or series,
we seem to say that two or more, ‘di ba?

THE CHAIRMAN (REP. GARCIA): Yes, this distinguishes it, really, from ordinary crimes. That is
why, I said, that is a very good suggestion because if it is only one act, it may fall under ordinary
crime but we have here a combination or series of overt or criminal acts. So. . .

....

REP. ISIDRO: When you say "combination", two different?

THE CHAIRMAN (REP. GARCIA): Yes.

THE CHAIRMAN (SEN. TAÑADA): Two different. . . .

REP. ISIDRO: Two different acts.

THE CHAIRMAN (REP. GARCIA): For example, ha. . .

REP. ISIDRO: Now a series, meaning, repetition. . .31

Thus, resort to the deliberations in Congress will readily reveal that the word "combination" includes
at least two different overt or criminal acts listed in R.A. No. 7080, such as misappropriation
(§1(d)(1)) and taking undue advantage of official position (§1(d)(6)). On the other hand, "series" is
used when the offender commits the same overt or criminal act more than once. There is no plunder
if only one act is proven, even if the ill-gotten wealth acquired thereby amounts to or exceeds the
figure fixed by the law for the offense (now P50,000,000.00). The overt or criminal acts need not be
joined or separated in space or time, since the law does not make such a qualification. It is enough
that the prosecution proves that a public officer, by himself or in connivance with others, amasses
wealth amounting to at least P50 million by committing two or more overt or criminal acts.
Petitioner also contends that the phrase "series of acts or transactions" is the subject of conflicting
decisions of various Circuit Courts of Appeals in the United Sates. It turns out that the decisions
concerned a phrase in Rule 8(b) of the Federal Rules of Criminal Procedure which provides:

(b) Joinder of Defendants: Two or more defendants may be charged in the same indictment or
information if they are alleged to have participated in the same act or transaction or in the
same series of acts or transactions constituting an offense or offenses. Such defendants may be
charged in one or more counts together or separately and all of the defendants need not be charged
on each count. (Emphasis added)

The fact that there is a conflict in the rulings of the various courts does not mean that Rule 8(b) is
void for being vague but only that the U.S. Supreme Court should step in, for one of its essential
functions is to assure the uniform interpretation of federal laws.

We have a similar provision in Rule 3, §6 of the 1997 Code of Civil Procedure. It reads:

SEC. 6. Permissive joinder of parties. ¾ All persons in whom or against whom any right to relief in
respect to or arising out of the same transaction or series of transactions is alleged to exist, whether
jointly, severally, or in the alternative, may, except as otherwise provided in these Rules, join as
plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to
all such plaintiffs or to all such defendants may arise in the action; but the court may make such
orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to
expense in connection with any proceedings in which he may have no interest. (Emphasis added)

This provision has been in our Rules of Court since 1940 but it has never been thought of as vague.
It will not do, therefore, to cite the conflict of opinions in the United States as evidence of the
vagueness of the phrase when we do not have any conflict in this country.

B. "Pattern of overt or criminal acts"

Petitioner contends that it is not enough that there be at least two acts to constitute either a
combination or series because §4 also mentions "a pattern of overt or criminal acts indicative of the
overall scheme or conspiracy," and "pattern" means "an arrangement or order of things or activity."

A "pattern of overt or criminal acts" is required in §4 to prove "an unlawful scheme or conspiracy." In
such a case, it is not necessary to prove each and every criminal act done in furtherance of the
scheme or conspiracy so long as those proven show a pattern indicating the scheme or conspiracy.
In other words, when conspiracy is charged, there must be more than a combination or series of two
or more acts. There must be several acts showing a pattern which is "indicative of the overall
scheme or conspiracy." As Senate President Salonga explained, if there are 150 constitutive crimes
charged, it is not necessary to prove beyond reasonable doubt all of them. If a pattern can be shown
by proving, for example, 10 criminal acts, then that would be sufficient to secure conviction.32

The State is thereby enabled by this device to deal with several acts constituting separate crimes as
just one crime of plunder by allowing their prosecution by means of a single information because
there is a common purpose for committing them, namely, that of "amassing, accumulating or
acquiring wealth through such overt or criminal acts." The pattern is the organizing principle that
defines what otherwise would be discreet criminal acts into the single crime of plunder.

As thus applied to petitioner, the Anti-Plunder Law presents only problems of statutory construction,
not vagueness or overbreadth. In Primicias v. Fugoso,33 an ordinance of the City of Manila,
prohibiting the holding of parades and assemblies in streets and public places unless a permit was
first secured from the city mayor and penalizing its violation, was construed to mean that it gave the
city mayor only the power to specify the streets and public places which can be used for the purpose
but not the power to ban absolutely the use of such places. A constitutional doubt was thus resolved
through a limiting construction given to the ordinance.

Nor is the alleged difference of opinion among the Ombudsman, the Solicitor General, and the
Sandiganbayan as to the number of acts or crimes needed to constitute plunder proof of the
vagueness of the statute and, therefore, a ground for its invalidation. For sometime it was thought
that under Art. 134 of the Revised Penal Code convictions can be had for the complex crime of
rebellion with murder, arson, and other common crimes. The question was finally resolved in 1956
when this Court held that there is no such complex crime because the common crimes were
absorbed in rebellion.34 The point is that Art. 134 gave rise to a difference of opinion that nearly split
the legal profession at the time, but no one thought Art. 134 to be vague and, therefore, void.

Where, therefore, the ambiguity is not latent and the legislative intention is discoverable with the aid
of the canons of construction, the void for vagueness doctrine has no application.

In Connally v. General Constr. Co.35 the test of vagueness was formulated as follows:

[A] statute which either forbids or requires the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its application, violates the first
essential of due process of law.

Holmes’s test was that of the viewpoint of the bad man. In The Path of the Law, Holmes said:

If you want to know the law and nothing else, you must look at it as a bad man, who cares only for
the material consequences which such knowledge enables him to predict, not as a good one, who
finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of
conscience.36

Whether from the point of view of a man of common intelligence or from that of a bad man, there can
be no mistaking the meaning of the Anti-Plunder Law as applied to petitioner.

IV. PLUNDER A COMPLEX CRIME REQUIRING PROOF OF MENS REA

Petitioner argues that, in enacting the statute in question, Congress eliminated the element of mens
rea, or the scienter, thus reducing the burden of evidence required for proving the crimes which
are mala in se.37

There are two points raised in this contention. First is the question whether the crime of plunder is
a malum in se or a malum prohibitum. For if it is a malum prohibitum, as the Ombudsman and the
Solicitor General say it is,38 then there is really a constitutional problem because the predicate crimes
are mainly mala in se.

A. Plunder A Malum In Se Requiring Proof of Mens Rea

Plunder is a malum in se, requiring proof of criminal intent. Precisely because the constitutive crimes
are mala in sethe element of mens rea must be proven in a prosecution for plunder. It is noteworthy
that the amended information alleges that the crime of plunder was committed "willfully, unlawfully
and criminally." It thus alleges guilty knowledge on the part of petitioner.

In support of his contention that the statute eliminates the requirement of mens rea and that is the
reason he claims the statute is void, petitioner cites the following remarks of Senator Tañada made
during the deliberation on S. No. 733:

SENATOR TAÑADA. . . . And the evidence that will be required to convict him would not be
evidence for each and every individual criminal act but only evidence sufficient to establish the
conspiracy or scheme to commit this crime of plunder.39

However, Senator Tañada was discussing §4 as shown by the succeeding portion of the transcript
quoted by petitioner:

SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in Section 4, Rule
of Evidence, which, in the Gentleman’s view, would provide for a speedier and faster process of
attending to this kind of cases?
SENATOR TAÑADA. Yes, Mr. President . . .40

Señator Tañada was only saying that where the charge is conspiracy to commit plunder, the
prosecution need not prove each and every criminal act done to further the scheme or conspiracy, it
being enough if it proves beyond reasonable doubt a pattern of overt or criminal acts indicative of the
overall unlawful scheme or conspiracy. As far as the acts constituting the pattern are concerned,
however, the elements of the crime must be proved and the requisite mens rea must be shown.

Indeed, §2 provides that ¾

Any person who participated with the said public officer in the commission of an offense contributing
to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the
degree of participation and the attendance of mitigating and extenuating circumstances, as provided
by the Revised Penal Code, shall be considered by the court.

The application of mitigating and extenuating circumstances in the Revised Penal Code to
prosecutions under the Anti-Plunder Law indicates quite clearly that mens rea is an element of
plunder since the degree of responsibility of the offender is determined by his criminal intent. It is
true that §2 refers to "any person who participates with the said public officers in the commission of
an offense contributing to the crime of plunder." There is no reason to believe, however, that it does
not apply as well to the public officer as principal in the crime. As Justice Holmes said: "We agree to
all the generalities about not supplying criminal laws with what they omit, but there is no canon
against using common sense in construing laws as saying what they obviously mean."41

Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have been
resolved in the affirmative by the decision of Congress in 1993 to include it among the heinous
crimes punishable by reclusion perpetua to death. Other heinous crimes are punished with death as
a straight penalty in R.A. No. 7659. Referring to these groups of heinous crimes, this Court held
in People v. Echagaray:42

The evil of a crime may take various forms. There are crimes that are, by their very nature,
despicable, either because life was callously taken or the victim is treated like an animal and utterly
dehumanized as to completely disrupt the normal course of his or her growth as a human being. . . .
Seen in this light, the capital crimes of kidnapping and serious illegal detention for ransom resulting
in the death of the victim or the victim is raped, tortured, or subjected to dehumanizing acts;
destructive arson resulting in death; and drug offenses involving minors or resulting in the death of
the victim in the case of other crimes; as well as murder, rape, parricide, infanticide, kidnapping and
serious illegal detention, where the victim is detained for more than three days or serious physical
injuries were inflicted on the victim or threats to kill him were made or the victim is a minor, robbery
with homicide, rape or intentional mutilation, destructive arson, and carnapping where the owner,
driver or occupant of the carnapped vehicle is killed or raped, which are penalized by reclusion
perpetua to death, are clearly heinous by their very nature.

There are crimes, however, in which the abomination lies in the significance and implications of the
subject criminal acts in the scheme of the larger socio-political and economic context in which the
state finds itself to be struggling to develop and provide for its poor and underprivileged masses.
Reeling from decades of corrupt tyrannical rule that bankrupted the government and impoverished
the population, the Philippine Government must muster the political will to dismantle the culture of
corruption, dishonesty, greed and syndicated criminality that so deeply entrenched itself in the
structures of society and the psyche of the populace. [With the government] terribly lacking the
money to provide even the most basic services to its people, any form of misappropriation or
misapplication of government funds translates to an actual threat to the very existence of
government, and in turn, the very survival of the people it governs over. Viewed in this context, no
less heinous are the effects and repercussions of crimes like qualified bribery, destructive arson
resulting in death, and drug offenses involving government officials, employees or officers, that their
perpetrators must not be allowed to cause further destruction and damage to society.

The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is
a malum in se. For when the acts punished are inherently immoral or inherently wrong, they
are mala in se43 and it does not matter that such acts are punished in a special law, especially since
in the case of plunder the predicate crimes are mainly mala in se. Indeed, it would be absurd to treat
prosecutions for plunder as though they are mere prosecutions for violations of the Bouncing Check
Law (B.P. Blg. 22) or of an ordinance against jaywalking, without regard to the inherent wrongness
of the acts.

B. The Penalty for Plunder

The second question is whether under the statute the prosecution is relieved of the duty of proving
beyond reasonable doubt the guilt of the defendant. It is contended that, in enacting the Anti-Plunder
Law, Congress simply combined several existing crimes into a single one but the penalty which it
provided for the commission of the crime is grossly disproportionate to the crimes combined while
the quantum of proof required to prove each predicate crime is greatly reduced.

We have already explained why, contrary to petitioner’s contention, the quantum of proof required to
prove the predicate crimes in plunder is the same as that required were they separately prosecuted.
We, therefore, limit this discussion to petitioner’s claim that the penalty provided in the Anti-Plunder
Law is grossly disproportionate to the penalties imposed for the predicate crimes. Petitioner cites the
following examples:

For example, please consider the following ‘combination’ or ‘series’ of overt or criminal acts
(assuming the P50 M minimum has been acquired) in light of the penalties laid down in the Penal
Code:

a. One act of indirect bribery (penalized under Art. 211 of the Revised Penal Code with prision
correccional in its medium and maximum periods),

– combined with –

one act of fraud against the public treasury (penalized under Art. 213 of the Revised Penal Code
with prision correccional in its medium period to prision mayor in its minimum period,

- equals -

plunder (punished by reclusion perpetua to death plus forfeiture of assets under R.A. 7080)

b. One act of prohibited transaction (penalized under Art. 215 of the revised Penal Code with prision
correccionalin its minimum period or a fine ranging from P200 to P1,000 or both),

– combined with –

one act of establishing a commercial monopoly (penalized under Art. 186 of Revised Penal Code
with prision correccional in its minimum period or a fine ranging from P200 to P6,000, or both),

-equals-

plunder (punished by reclusion perpetua to death, and forfeiture of assets under R.A. 7080.

c. One act of possession of prohibited interest by a public officer (penalized with prision
correccional in its minimum period or a fine of P200 to P1,000, or both under Art. 216 of the
Revised Penal Code),

– combined with –

one act of combination or conspiracy in restraint of trade (penalized under Art. 186 of the Revised
penal Code with prision correccional in its minimum period, or a fine of P200 to P1,000, or both,

- equals -
plunder, punished by reclusion perpetua to death, and forfeiture of assets)44

But this is also the case whenever other special complex crimes are created out of two or more
existing crimes. For example, robbery with violence against or intimidation of persons under Art. 294,
par. 5 of the Revised Penal Code is punished with prision correccional in its maximum period (4
years, 2 months, and 1 day) to prision mayor in its medium period (6 years and 1 day to 8 years).
Homicide under Art. 249 of the same Code is punished with reclusion temporal (12 years and 1 day
to 20 years). But when the two crimes are committed on the same occasion, the law treats them as a
special complex crime of robbery with homicide and provides the penalty of reclusion perpetua to
death for its commission. Again, the penalty for simple rape under Art. 266-B of the Revised Penal
Code is reclusion perpetua, while that for homicide under Art. 249 it is reclusion temporal (12 years
and 1 day to 20 years). Yet, when committed on the same occasion, the two are treated as one
special complex crime of rape with homicide and punished with a heavier penalty of reclusion
perpetua to death. Obviously, the legislature views plunder as a crime as serious as robbery with
homicide or rape with homicide by punishing it with the same penalty. As the explanatory note
accompanying S. No. 733 explains:

Plunder, a term chosen from other equally apt terminologies like kleptocracy and economic treason,
punishes the use of high office for personal enrichment, committed thru a series of acts done not in
the public eye but in stealth and secrecy over a period of time, that may involve so many persons,
here and abroad, and which touch so many states and territorial units. The acts and/or omissions
sought to be penalized do not involve simple cases of malversation of public funds, bribery,
extortion, theft and graft but constitute the plunder of an entire nation resulting in material damage to
the national economy. The above-described crime does not yet exist in Philippine statute books.
Thus, the need to come up with a legislation as a safeguard against the possible recurrence of the
depravities of the previous regime and as a deterrent to those with similar inclination to succumb to
the corrupting influences of power.

Many other examples drawn from the Revised Penal Code and from special laws may be cited to
show that, when special complex crimes are created out of existing crimes, the penalty for the new
crime is heavier.

______________________

To recapitulate, had R.A. No. 7080 been a law regulating speech, I would have no hesitation
examining it on its face on the chance that some of its provisions ¾ even though not here before us
¾ are void. For then the risk that some state interest might be jeopardized, i.e., the interest in the
free flow of information or the prevention of "chill" on the freedom of expression, would trump any
marginal interest in security.

But the Anti-Plunder Law is not a regulation of speech. It is a criminal statute designed to combat
graft and corruption, especially those committed by highly-placed public officials. As conduct and not
speech is its object, the Court cannot take chances by examining other provisions not before it
without risking vital interests of society. Accordingly, such statute must be examined only "as
applied" to the defendant and, if found valid as to him, the statute as a whole should not be declared
unconstitutional for overbreadth or vagueness of its other provisions. Doing so, I come to the
following conclusions:

1. That the validity of R.A. No. 7080, otherwise known as the Anti-Plunder Law, cannot be
determined by applying the test of strict scrutiny in free speech cases without disastrous
consequences to the State’s effort to prosecute crimes and that, contrary to petitioner’s
contention, the statute must be presumed to be constitutional;

2. That in determining the constitutionality of the Anti-Plunder Law, its provisions must be
considered in light of the particular acts alleged to have been committed by petitioner;

3. That, as applied to petitioner, the statute is neither vague nor overbroad;

 4. That, contrary to the contention of the Ombudsman and the Solicitor General, the crime of
plunder is a malum in se and not a malum prohibitum and the burden of proving each and
every predicate crime is on the prosecution.

For these reasons, I respectfully submit that R.A. No. 7080 is valid and that, therefore, the petition
should be dismissed.

Footnotes

1See Estrada v. Desierto, G.R. No. 146710, March 2, 2001; Estrada v. Macapagal-Arroyo,
G.R. No. 146715, March 2, 2001.

2 CONST., ART., Art. II, §27.

3United States v. National Dairy Prod. Corp., 372 U.S. 29, 32-33, 9 L.Ed.2d 561, 565-6
(1963) (internal quotation marks omitted).

4 Memorandum for the Petitioner, pp. 4-7.

5 Id. at 11-66.

6 293 SCRA 161, 166 (1998).

7 304 U.S. 144, 152, 82 L.Ed. 1234, 1241 (1938) (cases cited omitted).

8 Memorandum for the Petitioner, p. 5.

9 20 SCRA 849, 865 (1967).

10 Geoffrey R. Stone, Content-Neutral Restrictions, 54 Univ. of Chi. L. Rev. 46, 50-53 (1987).

Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L.Ed. 328 (1926) cited in Ermita-
11

Malate Hotel and Motel Operators Ass’n v. City Mayor, 20 SCRA 849, 867 (1967).

12NAACP v. Alabama, 377 U.S. 288, 307, 12 L.Ed.2d 325, 338 (1958); Shelton v. Tucker,
364 U.S. 479, 5 L.Ed.2d 231 (1960).

Gooding v. Wilson, 405 U.S. 518, 521, 31 L.Ed.2d 408, 413 (1972) (internal quotation
13

marks omitted).

14 United States v. Salerno, 481 U.S. 739, 745, 95 L.Ed.2d 697, 707 (1987). See also People
v. De la Piedra, G.R. No. 121777, Jan. 24, 2001.

15 413 U.S. 601, 612-613, 37 L.Ed. 2d 830, 840-841 (1973).

16 United States v. Salerno, supra.

17Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71
L.Ed.2d 362, 369 (1982).

18United States v. Raines, 362 U.S. 17, 21, 4 L.Ed.2d 524, 529 (1960). The paradigmatic
case is Yazoo & Mississippi Valley RR. v. Jackson Vinegar Co., 226 U.S. 217, 57 L.Ed. 193
(1912).
19 K. Sullivan & G. Gunther, Constitutional Law 1299 (14th ed., 2001).

20Id. at 1328. See also Richard H. Fallon, Jr., As Applied and Facial Challenges, 113 Harv.
L. Rev. 1321 (2000), arguing that, in an important sense, as applied challenges are the basic
building blocks of constitutional adjudication and that determinations that statutes are facially
invalid properly occur only as logical outgrowths of rulings on whether statutes may be
applied to particular litigants on particular facts.

21Const., Art. VIII, §§1 and 5. Compare Angara v. Electoral Commission, 63 Phil. 139, 158
(1936): "[T]he power of judicial review is limited to actual cases and controversies to be
exercised after full opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis motapresented. Any attempt at abstraction could
only lead to dialectics and barren legal questions and to sterile conclusions unrelated to
actualities."

22401 U.S. 37, 52-53, 27 L.Ed.2d 669, 680 (1971). Accord, United States v. Raines, 362
U.S. 17, 4 L.Ed.2d 524 (1960); Board of Trustees, State Univ. of N.Y v. Fox, 492 U.S. 469,
106 L.Ed.2d 388 (1989).

23Broadrick v. Oklahoma, 413 U.S. at 613, 37 L.Ed.2d at 841; National Endowment for the
Arts v. Finley, 524 U.S. 569, 580 (1998).

FW/PBS, Inc. v. City of Dallas, 493 U.S. 223, 107 L.Ed.2d 603 (1990); Cruz v. Secretary of
24

Environment and Natural Resources, G.R. No. 135385, Dec. 6, 2000 (Mendoza, J., Separate
Opinion).

25United States v. National Dairy Prod. Corp., 372 U.S. 29, 32-33, 9 L.Ed.2d 561, 565-6
(1963).

269 U.S. 385, 391, 70 L.Ed. 328 (1926) cited in Ermita-Malate Hotel and Motel Operators
26

Ass’n v. City Mayor, 20 SCRA 849, 867 (1967).

27 Memorandum for the Petitioner, pp. 11-66.

28 4 Record of the Senate 1310, June 5, 1989.

29 4 Record of the Senate 1339, June 6, 1989.

30 Webster’s Third New International Dictionary 2073 (1993).

31 Deliberations of the Joint Conference Committee on Justice held on May 7, 1991.

32Deliberations of the Conference Committee on Constitutional Amendments and Revision

of Laws held on Nov. 15, 1988.

33 80 Phil. 71 (1948).

34 People v. Hernandez, 99 Phil. 515 (1956); People v. Geronimo, 100 Phil. 90 (1956).

269 U.S. 385, 391, 70 L.Ed. 328 (1926) cited in Ermita-Malate Hotel and Motel Operators
35

Ass’n v. City Mayor, 20 SCRA 849, 867 (1967).

36 Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 459 (1897).

37 Memorandum for the Petitioner, p. 32.

38
See Memorandum for the Respondents, pp. 79-88.
 39 4 Record of the Senate 1316, June 5, 1989.

40 Id.

41 Roschen v. Ward, 279 U.S. 337, 339, 73 L.Ed. 722, 728 (1929).

42 267 SCRA 682, 721-2 (1997) (emphasis added).

43 Black’s Law Dictionary 959 (1990); Lozano v. Martinez, 146 SCRA 324, 338 (1986).

44 Memorandum for the Petitioner, pp. 62-63 (emphasis in the original).

The Lawphil Project - Arellano Law Foundation

SEPARATE OPINION

(Concurring)

PANGANIBAN, J.:

In his Petition for Certiorari under Rule 65 of the Rules of Court, former President Joseph Ejercito
Estrada seeks the annulment of the Sandiganbayan Resolution dated July 9, 2001, which denied his
Motion to Quash. He further prays to prohibit the anti-graft court from conducting the trial of
petitioner in Criminal Case No. 26558, on the ground that the statute under which he has been
charged – the Anti-Plunder Law or Republic Act (RA) 7080 -- is unconstitutional.

In sum, he submits three main arguments to support his thesis, as follows:

1. "RA 7080 is vague and overbroad on its face and suffers from structural deficiency and
ambiguity."1

2. "RA 7080 reduces the standard of proof necessary for criminal conviction, and dispenses
with proof beyond reasonable doubt of each and every criminal act done in furtherance of the
crime of plunder."2

3. "RA 7080 has been admitted by respondent to be malum prohibita which deprives
petitioner of a basic defense in violation of due process."3

I have read former President Estrada’s Petition, Reply, Memorandum and other pleadings and
listened carefully to his Oral Argument. However, I cannot agree with his thesis, for the following
reasons:

(1) RA 7080 is not vague or overbroad. Quite the contrary, it is clear and specific especially
on what it seeks to prohibit and to penalize.

(2) The Anti-Plunder Law does not lessen the degree of proof necessary to convict its
violator -- in this case, petitioner.

(3) Congress has the constitutional power to enact laws that are mala prohibita and, in
exercising such power, does not violate due process of law.

First Issue: "Void for Vagueness" Not Applicable

In the main, petitioner attacks RA 7080 for being allegedly vague and ambiguous, for "wanting in its
essential terms," and for failing to "define what degree of participation means as [it] relates to the
person or persons charged with having participated with a public officer in the commission of
plunder."4

In Dans v. People,5 reiterated recently in Sajul v. Sandiganbayan,6 this Court debunked the "void for
vagueness" challenge to the constitutionality of Section 3(g) of the Anti-Graft Law (RA 3019, as
amended) and laid down the test to determine whether a statute is vague. It has decreed that as
long as a penal law can answer the basic query "What is the violation?," it is constitutional. "Anything
beyond this, the ‘hows’ and the ‘whys,’ are evidentiary matters which the law cannot possibly
disclose in view of the uniqueness of every case x x x."

Elements of Plunder

The Anti-Plunder Law more than adequately answers the question "What is the violation?" Indeed, to
answer this question, any law student -- using basic knowledge of criminal law -- will refer to the
elements of the crime, which in this case are plainly and certainly spelled out in a straightforward
manner in Sections 2 and 1(d) thereof. Those elements are:

1. The offender is a public officer acting by himself or in connivance with members of his
family, relatives by affinity or consanguinity, business associates, subordinates or other
persons.

2. The offender amasses, accumulates or acquires ill-gotten wealth.

3. The aggregate amount or total value of the ill-gotten wealth so amassed, accumulated or
acquired is at least fifty million pesos (P50,000,000).

4. Such ill-gotten wealth -- defined as any asset, property, business enterprise or material
possession of any of the aforesaid persons (the persons within the purview of Section 2, RA
7080) -- has been acquired directly or indirectly through dummies, nominees, agents,
subordinates and/or business associates by any combination or series of the following
means or similar schemes:

(i) through misappropriation, conversion, misuse or malversation of public funds or

raids on the public treasury;

(ii) by receiving, directly or indirectly, any commission, gift, share, percentage,

kickbacks or any other form of pecuniary benefit from any person and/or entity in
connection with any government contract or project or by reason of the office or
position of the public officer concerned;

(iii) by the illegal or fraudulent conveyance or disposition of assets belonging to the

national government or any of its subdivisions, agencies or instrumentalities or
government-owned or controlled corporations and their subsidiaries;

(iv) by obtaining, receiving or accepting directly or indirectly any shares of stock,

equity or any other form of interest or participation including the promise of future
employment in any business enterprise or undertaking;

(v) by establishing agricultural, industrial or commercial monopolies or other

combination and/or implementation of decrees and orders intended to benefit
particular persons or special interests; or

(vi) by taking undue advantage of official position, authority, relationship, connection

or influence to unjustly enrich himself or themselves at the expense and to the
damage and prejudice of the Filipino people and the Republic of the Philippines.7
Petitioner argues that, notwithstanding the above-detailed statement of the elements of the crime,
there is still vagueness because of the absence of definitions of the
terms combination, series and pattern in the text of the law.

Citing People v. Nazario,8 petitioner adds that "a statute or act may be said to be vague when it lacks
comprehensible standards that men of common intelligence must necessarily guess at its meaning
and differ as to its application."

I say, however, that in that very case cited by petitioner, the Court cautioned that "the act (or law)
must be utterly vague on its face." When it can be "clarified either by a saving clause or
by construction," the law cannot be decreed as invalid. In other words, the absence of statutory
definitions of words used in a statute will not render the law "void for vagueness," if the meanings of
such words can be determined through the judicial function of construction.9

Solution: Simple
Statutory Construction

Indeed, simple statutory construction, not a declaration of unconstitutionality, is the key to the
allegedly vague words of the Anti-Plunder Law. And the most basic rule in statutory construction is to
ascertain the meaning of a term from the legislative proceedings. Verily, in the judicial review of a
law’s meaning, the legislative intent is paramount.10

Pervading the deliberations of the Bicameral Conference Committee on Justice held on May 7, 1991
was the common understanding of combination as a joining or combining of at least two dissimilar
things or acts, and seriesas a repetition or recurrence of the same thing at least twice.11 As a matter
of fact, the same understanding of those terms also prevailed during the Senate deliberations on
Senate Bill No. 733 (Plunder) earlier held on June 6, 1989.12 The Records of those deliberations
speak for themselves.

It is true that during the deliberations in the Senate, the late Senator Neptali A. Gonzales initially
raised concerns over the alleged vagueness in the use of the terms combination and series. I
respectfully submit, however, that the reliance13 of petitioner on such concerns is misplaced. That
portion of the interpellations, evincing the late senator’s reservations on the matter, had taken place
during the session of June 5, 1989.14 And the clarificatory remarks of Senate President Jovito R.
Salonga and Senators Wigberto Tañada, Alberto Romulo and Ernesto Maceda, which threw light on
the matters in doubt, happened the following day, June 6, 1989.15 In brief, the misgivings voiced by
Senator Gonzales as to the use of the two terms were adequately addressed, answered and
disposed of the following day.

Thus, Senate Bill No. 733, defining and penalizing plunder, was passed and approved on third
reading on July 25, 1989, with 19 affirmative votes (including those of Senators Gonzales, Tañada,
Maceda, and petitioner himself) sans any negative vote or abstention. Indeed, some of the sharpest
legal minds in the country voted to approve the bill, even though it was bereft of statutory definitions.
Likewise, it would certainly be inconceivable for Senator Gonzales to have voted for the approval of
the Bill had he believed that it was vague to the point of constitutional infirmity; or at the very least, if
he believed that his earlier reservations or apprehensions were not fully satisfied.

At this juncture, may I call attention to the Record of the Joint Conference Meeting held on May 7,
1991.16 The portion thereof relied upon by petitioner17 features the exchanges involving
Representatives Garcia and Isidro and Senator Tañada on the meanings of the
terms combination and series. The quoted part of the Record would suggest that, somehow,
particularly towards the end of the meeting, the discussion among the legislators seemed to have
degenerated into a clutch of unfinished sentences and unintelligible phrases. Still, I believe that the
deliberations did not actually sound the way they were subsequently transcribed or as they now
appear on the Record. Even more reluctant am I to agree with petitioner that the apparent tenor of
the deliberations evinced "a dearth of focus to render precise the definition of the terms," or that the
Committee members themselves were not clear on the meanings of the terms in question.
Most of us in the legal profession are all too familiar with the vagaries of stenographic note-taking,
especially in courtrooms and legislative halls. Too often, lawyers, parties-litigants and even judges
find themselves at the mercy of stenographers who are unfamiliar with certain legal terms; or who
cannot hear well enough or take notes fast enough; or who simply get confused, particularly when
two or more persons happen to be speaking at the same time. Often, transcripts of stenographic
notes have portrayed lawyers, witnesses, legislators and judges as blithering idiots, spouting utterly
nonsensical jargon and plain inanities in the course of a proceeding. The Record in question is no
exception.

Rather than believe that the distinguished lawmakers went about their business uttering senseless
half-sentences to one another, I think that these learned and intelligent legislators of both chambers
knew what they were talking about, spoke their minds, and understood each other well, for the
Record itself does not indicate the contrary. Neither does it show any details or minutiae that would
indicate that they abandoned their earlier common understanding of the
terms combination and series.

Specific Number or
Percentage Not Always Necessary

Regrettably, I shall also have to take issue with petitioner’s disquisition to the effect that "when penal
laws enacted by Congress make reference to a term or concept requiring a quantitative definition,
these laws are so crafted as to specifically state the exact number or percentage necessary to
constitute the elements of a crime," followed by a recitation of the minimum number of
malefactors mentioned in the statutory definitions of band, conspiracy, illegalrecruitment by
syndicate, large-scale illegal recruitment, organized/syndicated crime group, and swindling by a
syndicate. Thus, he insinuates that, because RA 7080 has failed to specify precisely the minimum
number of malefactors needed for an offense to be properly classified as plunder, the law is vague
or has somehow failed to meet the standard for penal laws.

The aforequoted discourse would appear to be incongruous, if not totally misleading. As pointed out
during the Oral Argument on September 18, 2001, the crime of plunder can be committed by a
public officer acting alone. Section 2 of RA 7080 reads as follows: "Definition of the Crime of
Plunder; Penalties. – Any public officer who, by himself or in connivance with x x x." Thus, the
insistence on a mathematical specification or precise quantification is essentially without basis. And
lest anyone believe that the Anti-Plunder Law is unusual in this respect, let me just recall that the
RICO law, to which petitioner made repeated references in his Amended Petition, can likewise be
violated by a single individual.18

Not Oppressive
or Arbitrary

Neither can it be said that RA 7080 is oppressive or arbitrary for imposing a more severe penalty on
a combinationor series of the offenses enumerated in Section 1(d) of the law, than would otherwise
be imposed if the said offenses were taken separately. As Mr. Justice Mendoza lucidly pointed out in
his interpellation during the Oral Argument, the Anti-Plunder Law is merely employing a
familiar technique or feature of penal statutes, when it puts together what would otherwise be
various combinations of traditional offenses already proscribed by existing laws and attaching
thereto higher or more severe penalties than those prescribed for the same offenses taken
separately.

Here, Mr. Justice Mendoza is referring to special complex crimes like rape with homicide or robbery
with homicide. During the Oral Argument, he asked whether petitioner’s counsel was in fact
suggesting that such special complex crimes -- a very important part of the Revised Penal Code and
well-entrenched in our penal system -- were violative of due process and the constitutional
guarantees against cruel and unusual punishment and should also be struck down. It goes without
saying that the legislature is well within its powers to provide higher penalties in view of the grave
evils sought to be prevented by RA 7080.

Innocent Acts Not

Penalized by RA 7080

Petitioner insists that innocent acts are in effect criminalized by RA 7080, because it allegedly
penalizes combinations or series of acts coming within the purview of the means or similar schemes
enumerated under items 4 and 5 of Section 1(d) of the law, which reads as follows:

"4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other
forms of interest or participation including the promise of future employment in any business
enterprise or undertaking;

"5. By establishing agricultural, industrial or commercial monopolies or other combinations and/or

implementation of decrees and orders intended to benefit particular persons or special interests"

That such contention "deserves scant attention" is an understatement of the extreme sort. The claim
of "innocent acts" is possible only because items 4 and 5 have been taken completely out of context
and read in isolation instead of in relation to the other provisions of the same law, particularly
Section 2. The above-enumerated acts, means or similar schemes must be understood as having
reference to or connection with the acquisition of ill-gotten wealth by a public officer, by himself or in
connivance with others. Those acts are therefore not innocent acts. Neither are those prohibitions
new or unfamiliar. The proscribed acts under item 4, for instance, may to some extent be traced
back to some of the prohibitions in RA 3019 (the Anti-Graft Law). Section 3, the pertinent part of
such law, reads as follows:

"SEC. 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers
already penalized by existing law, the following shall constitute corrupt practices of any public officer
and are hereby declared to be unlawful:

"(a) x x x x x x x x x

"(b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for
himself or for any other person, in connection with any contract or transaction between the
Government and any other party wherein the public officer in his official capacity has to intervene
under the law.

"(c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material
benefit, for himself or for another, from any person for whom the public officer, in any manner or
capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in
consideration for the help given or to be given, without prejudice to Section Thirteen of this Act.

"(d) Accepting or having any member of his family accept employment in a private enterprise which
has pending official business with him during the pendency thereof or within one year after its
termination.

xxx xxx xxx

"(h) Directly or indirectly having financial or pecuniary interest in any business, contract or
transaction in connection with which he intervenes or takes part in his official capacity, or in which he
is prohibited by the Constitution or by any law from having any interest.

x x x x x x x x x."

On the other hand, the prohibited acts under item 5 have antecedents in the Revised Penal Code’s
interdiction against monopolies and combinations in restraint of trade. Clearly, the acts dealt with in
Items 4 and 5 of Section 1(d) are in no wise the innocent or innocuous deeds that petitioner would
have us mistake them for.

RA 7080 Not Suffering from Overbreadth

In connection with the foregoing discussion, petitioner also charges that RA 7080 suffers from
"overbreadth." I believe petitioner misconstrues the concept. In the very recent case People v. Dela
Piedra,19 this Court held:

"A statute may be said to be overbroad where it operates to inhibit the exercise of individual
freedoms affirmatively guaranteed by the Constitution, such as the freedom of speech or religion. A
generally worded statute, when construed to punish conduct which cannot be constitutionally
punished, is unconstitutionally vague to the extent that it fails to give adequate warning of the
boundary between the constitutionally permissible and the constitutionally impermissible applications
of the statute.

"In Blo Umpar Adiong vs. Commission on Elections, for instance, we struck down as void for
overbreadth provisions prohibiting the posting of election propaganda in any place – including
private vehicles – other than in the common poster areas sanctioned by the COMELEC. We held
that the challenged provisions not only deprived the owner of the vehicle the use of his property but
also deprived the citizen of his right to free speech and information. The prohibition
in Adiong, therefore, was so broad that it covered even constitutionally guaranteed rights and,
hence, void for overbreadth. In the present case, however, appellant did not even specify
what constitutionally protected freedoms are embraced by the definition of ‘recruitment and
placement’ that would render the same constitutionally overbroad." (Italics supplied)

Similarly, in the instant case, petitioner has not identified which of his constitutionally protected
freedoms, if any, are allegedly being violated by the Anti-Plunder Law. As Mr. Justice Mendoza
pointed out to petitioner’s counsel during the Oral Argument, specious and even frivolous is the
contention that RA 7080 infringes on the constitutional right of petitioner by depriving him of his
liberty pending trial and by paving the way for his possible conviction because, following that line of
argument, the entire Revised Penal Code would be reckoned to be an infringement of constitutional
rights.

"Pattern of Overt or Criminal Acts"

Petitioner, in line with his "void for vagueness" attack on RA 7080, faults the statute for failing to
provide a definition of the phrase a pattern of overt or criminal acts indicative of the overall unlawful
scheme or conspiracy used in Section 4 of the law. This definition is crucial since, according to him,
such pattern is an essential element of the crime of plunder.

A plain reading of the law easily debunks this contention. First, contrary to petitioner’s suggestions,
such pattern of overt or criminal acts and so on is not and should not be deemed an essential or
substantive element of the crime of plunder. It is possible to give full force and effect to RA 7080
without applying Section 4 -- an accused can be charged and convicted under the Anti-Plunder Law
without resorting to that specific provision. After all, the heading and the text of Section 4, which I
quote below, leave no room for doubt that it is not substantive in nature:

"SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be
necessary to prove each and every criminal act done by the accused in furtherance of the scheme or
conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond
reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or
conspiracy." (Boldface supplied)

As Mr. Chief Justice Davide very astutely pointed out during the Oral Argument, Section 2 in relation
to Section 1(d) deals with how the crime of plunder is committed. Hence, these two sections
constitute the substantive elements, whereas Section 4 deals with how the crime is proved and is
therefore not substantive, but merely procedural. It may be disregarded or discarded if found
defective or deficient, without impairing the rest of the statute.

Actually, the root of this problem may be traced to an observation made by Rep. Pablo Garcia, chair
of the House Committee on Justice, that RA 7080 had been patterned after the RICO
Law.20 Petitioner apparently seized on this statement and on the assertions in H.J. Inc. v.
Northwestern Bell21 and other cases that a pattern of racketeering is a "key requirement" in the RICO
Law and a "necessary element" of violations thereof. He then used these as the springboard for his
vagueness attacks on RA 7080. However, his reliance on the RICO law is essentially misplaced.
Respondent Sandiganbayan correctly held that the said legislation was essentially different from our
Anti-Plunder Law, as it pointed out in its Resolution of July 9, 2001, which I quote:

"Accused Joseph E. Estrada claims that the Anti-Plunder Law does not define ‘pattern of overt or
criminal acts’ indicative of the overall scheme or conspiracy, thereby giving prosecutors and judges
unlimited discretion to determine the nature and extent of evidence that would show ‘pattern.’"
(Motion to Quash dated June 7, 2001, p. 13) The Court disagrees with this contention.

"x x x. According to the sponsors of the Anti-Plunder Law in Congress, the said law is similar to the
U.S. RICO (Deliberations of the House of Representatives Committee on Revision of Law and
Justice, May 24, 1990). However, the similarities extend only insofar as both laws penalize with
severe penalties the commission by a single accused or multiple accused of a pattern of overt or
criminal acts as one continuing crime. However, the legislative policies and objectives as well as
the nature of the crimes penalized respectively by the RICO and the Anti-Plunder Law are
different." (Boldface and underscoring supplied)

Indeed, a careful reading of RICO vis-à-vis RA 7080 can lead to no other conclusion than that the
crimes being penalized are completely different in nature and character, and that the legislative
objectives and policies involved are quite dissimilar.

In the case of RICO, legislative concern focused on the threat of continued racketeering activity, and
that was why pattern was imbued with such importance. "Congress was concerned in RICO with
long-term criminal conduct,"22 as the following quote indicates:

"RICO’s legislative history reveals Congress’ intent that to prove a pattern of racketeering activity a
plaintiff or prosecutor must show that the racketeering predicates are related, and that they amount
to or pose a threat of continued criminal activity.23

xxx xxx xxx

"What a plaintiff or prosecutor must prove is continuity of racketeering activity, or its

threat, simpliciter. This may be done in a variety of ways, thus making it difficult to formulate in the
abstract any general test for continuity. We can, however, begin to delineate the requirement.

"‘Continuity’ is both a closed and open-ended concept, referring either to a closed period of repeated
conduct, or to past conduct that by its nature projects into the future with a threat of repetition. x x x.
It is, in either case, centrally a temporal concept – and particularly so in the RICO context,
where what must be continuous, RICO’s predicate acts or offenses, and the relationship these
predicates must bear one to another, are distinct requirements. A party alleging a RICO violation
may demonstrate continuity over a closed period by proving a series of related predicates extending
over a substantial period of time. Predicate acts extending over a few weeks or months and
threatening no future criminal conduct do not satisfy this requirement. Congress was concerned in
RICO with long-term criminal conduct. Often a RICO action will be brought before continuity can be
established in this way. In such cases, liability depends on whether the threat of continuity is
demonstrated."24 (italics and underscoring supplied)

However, in RA 7080, precisely because of the sheer magnitude of the crimes in question and their
extremely deleterious effects on society, the legislative sentiment of great urgency – the necessity of
immediate deterrence of such crimes -- was incompatible with the RICO concept of "pattern"
as connoting either continuity over a substantial period of time or threat of continuity or repetition.
The legislative intent25 and policy of RA 7080 centered on imposing a heavy penalty in order to
achieve a strong, if not permanent, deterrent effect -- the sooner the better. The following Senate
deliberations are instructive:

"Senator Paterno. Mr. President, [I’m] not too clear yet on the reason for trying to define a crime of
plunder. Could I get some further clarification?
"Senator Tañada. Yes, Mr. President.

"Because of our experience in the former regime, we feel that there is a need for Congress to pass
the legislation which would cover a crime of this magnitude. While it is true, we already have the
Anti-Graft Law. But that does not directly deal with plunder. That covers only the corrupt practices of
public officials as well as their spouses and relatives within the civil degree, and the Anti-Graft law as
presently worded would not adequately or sufficiently address the problems that we experienced
during the past regime.

"Senator Paterno. May I try to give the Gentleman, Mr. President, my understanding of the bill?

"Senator Tañada. Yes.

"Senator Paterno. I envision that this bill or this kind of plunder would cover a discovered
interconnection of certain acts, particularly, violations of Anti-Graft and Corrupt Practices Act when,
after the different acts are looked at, a scheme or conspiracy can be detected, such scheme or
conspiracy consummated by the different criminal acts or violations of Anti-Graft and Corrupt
Practices Act, such that the scheme or conspiracy becomes a sin, as a large scheme to defraud the
public or rob the public treasury. It is parang robo and banda. It is considered as that. And, the bill
seeks to define or says that P100 million is that level at which ay talagang sobra na, dapat nang
parusahan ng husto. Would it be a correct interpretation or assessment of the intent of the bill?

"Senator Tañada. Yes, Mr. President. X x x x x.

"Senator Paterno. Would the Author not agree that this crime of plunder should be considered a
heinous crime, Mr. President?

"Senator Tañada. Yes, Mr. President. That is why, the penalty imposed under this bill is life
imprisonment, and permanent disqualification from holding public office.

"Senator Paterno. I would really ask, Mr. President, whether the Author would not consider that this
is a heinous crime which, for compelling reasons, namely to try and dampen the graft and corruption,
Congress should provide the death penalty for the crime of plunder.

"Senator Tañada. I personally would have some problem with that, Mr. President, because I am
against the restoration of death penalty in our criminal code. I would submit that to this Body.

"Senator Paterno. I respect the ministerial attitude and the respect for human life of the author, Mr.
President, but I just feel that graft and corruption is such a large problem in our society that, perhaps,
it is necessary for this Congress to express itself that this crime of plunder is a heinous crime which
should be levied the death penalty, Mr. President."26

Thus, it is clear and unarguable that "pattern," a key requirement or necessary element of RICO, is
in no wise an essential element of RA 7080.

This conclusion is further bolstered by the fact that pattern, in the RICO law context, is nowhere to
be found in the language of RA 7080 or in the deliberations of Congress. Indeed, the legislators
were well aware of the RICO Act; hence, they could have opted to adopt its concepts, terms and
definitions and installed pattern in the RICO sense as an essential element of the crime of plunder, if
that were their intent. At the very least, they would not have relegated the term pattern to a
procedural provision such as Section 4.

Second, to answer petitioner’s contention directly, the Anti-Plunder Law does in fact provide
sufficient basis to get at the meaning of the term pattern as used in Section 4. This meaning is
brought out in the disquisition of Respondent Sandiganbayan in its challenged Resolution,
reproduced hereunder:
"The term ‘pattern’ x x x is sufficiently defined in the Anti-Plunder Law, specifically through Section 4
x x x, read in relation to Section 1(d) and Section 2 of the same law. Firstly, under Section 1(d) x x
x, a pattern consists of at least a combination or a series of overt or criminal acts enumerated in
subsections (1) to (6) of Section 1(d). Secondly, pursuant to Section 2 of the law, the ‘pattern’ of
overt or criminal acts is directed towards a common purpose or goal which is to enable a public
officer to amass, accumulate or acquire ill-gotten wealth; and [t]hirdly, there must either be an
‘overall unlawful scheme’ or ‘conspiracy’ to achieve said common goal. As commonly understood,
the term ‘overall unlawful scheme’ indicates ‘a general plan of action or method’ which the principal
accused and public officer and others conniving with him follow to achieve the aforesaid common
goal. In the alternative, if there is no such overall scheme or where the schemes or methods used by
multiple accused vary, the overt or criminal acts must form part of a conspiracy to attain said
common goal.

"Parenthetically, it can be said that the existence of a pattern indicating an overall scheme or a
single conspiracy would serve as the link that will tie the overt or criminal acts into one continuing
crime of plunder. A conspiracy exists when two or more persons come into an agreement
concerning the commission of a felony and decide to commit it. (Art. 8, Revised Penal Code). To use
an analogy made by U.S. courts in connection with RICO violations, a pattern may be likened to a
wheel with spokes (the overt or criminal acts which may be committed by a single or multiple
accused), meeting at a common center (the acquisition or accumulation of ill-gotten wealth by a
public officer) and with the rim (the over-all unlawful scheme or conspiracy) of the wheel enclosing
the spokes. In this case, the information charges only one count of [the] crime of plunder,
considering the prosecution’s allegation in the amended information that the series or combination of
overt or criminal acts charged form part of a conspiracy among all the accused."27

Judiciary Empowered to Construe and Apply the Law

At all events, let me stress that the power to construe law is essentially judicial. To declare what the
law shall be is a legislative power, but to declare what the law is or has been is judicial.28 Statutes
enacted by Congress cannot be expected to spell out with mathematical precision how the law
should be interpreted under any and all given situations. The application of the law will depend on
the facts and circumstances as adduced by evidence which will then be considered, weighed and
evaluated by the courts. Indeed, it is the constitutionally mandated function of the courts to interpret,
construe and apply the law as would give flesh and blood to the true meaning of legislative
enactments.

Moreover, a statute should be construed in the light of the objective to be achieved and the evil or
mischief to be suppressed and should be given such construction as will advance the purpose,
suppress the mischief or evil, and secure the benefits intended.29 A law is not a mere composition,
but an end to be achieved; and its general purpose is a more important aid to its meaning than any
rule that grammar may lay down.30 A construction should be rejected if it gives to the language used
in a statute a meaning that does not accomplish the purpose for which the statute was enacted and
that tends to defeat the ends that are sought to be attained by its enactment.31

As can be gleaned from the legislative deliberations, the Plunder Law was enacted to curb the
"despoliation of the National Treasury by some public officials who have held the levers of power"
and to penalize "this predatory act which has reached unprecedented heights and has been
developed by its practitioners to a high level of sophistication during the past dictatorial regime."
Viewed broadly, "plunder involves not just plain thievery but economic depredation which affects not
just private parties or personal interests but the nation as a whole." Invariably, plunder partakes of
the nature of "a crime against national interest which must be stopped, and if possible, stopped
permanently."32

No Patent and Clear Conflict with Constitution

Against the foregoing backdrop, I believe petitioner’s heavy reliance on the void-for-vagueness
concept cannot prevail, considering that such concept, while mentioned in passing in Nazario and
other cases, has yet to find direct application in our jurisdiction. To this date, the Court has not
declared any penal law unconstitutional on the ground of ambiguity.33 On the other hand, the
constitutionality of certain penal statutes has been upheld in several cases, notwithstanding
allegations of ambiguity in the provisions of law. In Caram Resources Corp. v.
Contreras34 and People v. Morato,35 the Court upheld the validity of BP 22 (Bouncing Checks Law)
and PD 1866 (Illegal Possession of Firearms), respectively, despite constitutional challenges
grounded on alleged ambiguity.

Similarly, the cases cited by petitioner involving U.S. federal court decisions relative to the RICO
Law did not at all arrive at a finding of unconstitutionality of the questioned statute. To repeat,
reference to these U.S. cases is utterly misplaced, considering the substantial differences in the
nature, policies and objectives between the RICO Law and the Anti-Plunder Law. Verily, "the RICO
Law does not create a new type of substantive crime since any acts which are punishable under the
RICO Law also are punishable under existing federal and state statutes."36 Moreover, the main
purpose of the RICO Law is "to seek the eradication of organized crime in the United States."37

On the other hand, the Plunder Law creates an entirely new crime that may consist of both (a)
criminal acts already punished by the Revised Penal Code or special laws and (b) acts that may not
be punishable by previously existing laws. Furthermore, unlike in the RICO Law, the motivation
behind the enactment of the Anti-Plunder Law is "the need to for a penal law that can adequately
cope with the nature and magnitude of the corruption of the previous regime"38 in accordance with
the constitutional duty of the State "to take positive and effective measures against graft and
corruption."39

In sum, the law must be proven to be clearly and unequivocally repugnant to the Constitution before
this Court may declare its unconstitutionality. To strike down the law, there must be a clear showing
that what the fundamental law prohibits, the statute allows to be done.40 To justify the nullification of
the law, there must be a clear, unequivocal breach of the Constitution; not a doubtful, argumentative
implication.41 Of some terms in the law which are easily clarified by judicial construction, petitioner
has, at best, managed merely to point out alleged ambiguities. Far from establishing, by clear and
unmistakable terms, any patent and glaring conflict with the Constitution, the constitutional challenge
to the Anti-Plunder law must fail. For just as the accused is entitled to the presumption of innocence
in the absence of proof beyond reasonable doubt, so must a law be accorded the presumption of
constitutionality without the same requisite quantum of proof.

Second Issue:

Quantum of Evidence Not Lowered by RA 7080

I will now tackle petitioner’s impassioned asseverations that the Anti-Plunder Law violates the due
process clause and the constitutional presumption of innocence.

Section 4 of RA 7080 provides that, for purposes of establishing the crime of plunder, it shall not be
necessary to prove each and every criminal act done by the accused in furtherance of the scheme or
conspiracy to amass, accumulate or acquire ill-gotten wealth. This is because it would be
sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the
overall unlawful scheme or conspiracy.

Hence, petitioner now concludes that the Anti-Plunder Law "eliminates proof of each and every
component criminal act of plunder by the accused and limits itself to establishing just the pattern of
overt or criminal acts indicative of unlawful scheme or conspiracy." He thus claims that the statute
penalizes the accused on the basis of a proven scheme or conspiracy to commit plunder, without the
necessity of establishing beyond reasonable doubt each and every criminal act done by the
accused. From these premises, he precipitately, albeit inaccurately, concludes that RA 7080
has ipso facto lowered the quantum of evidence required to secure a conviction under the
challenged law. This is clearly erroneous.

First, petitioner’s allegation as to the meaning and implications of Section 4 can hardly be taken
seriously, because it runs counter to certain basic common sense presumptions that apply to the
process of interpreting statutes: that in the absence of evidence to the contrary, it will be presumed
that the legislature intended to enact a valid, sensible and just law; that the law-making body
intended right and justice to prevail;42 and that the legislature aimed to impart to its enactments such
meaning as would render them operative and effective and prevent persons from eluding or
defeating them.

Second, petitioner’s allegation is contradicted by the legislative Records that manifest the real intent
behind Section 4, as well as the true meaning and purpose of the provision therein. This intent is
carefully expressed by the words of Senate President Salonga:

"Senate Pres. Salonga. Is that, if there are let’s say 150 crimes all in all, criminal acts, whether
bribery, misappropriation, malversation, extortion, you need not prove all of those beyond
reasonable doubt. If you can prove by pattern, let’s say 10, but each must be proved beyond
reasonable doubt, you do not have to prove 150 crimes. That’s the meaning of this."43 (italics
supplied)

All told, the above explanation is in consonance with what is often perceived to be the reality with
respect to the crime of plunder -- that "the actual extent of the crime may not, in its breadth and
entirety, be discovered, by reason of the ‘stealth and secrecy’ in which it is committed and the
involvement of ‘so many persons here and abroad and [the fact that it] touches so many states and
territorial units.’"44 Hence, establishing a pattern indicative of the overall unlawful scheme becomes
relevant and important.

Proof of Pattern Beyond Reasonable Doubt

Nevertheless, it should be emphasized that the indicative pattern must be proven beyond
reasonable doubt. To my mind, this means that the prosecution’s burden of proving the crime of
plunder is, in actuality, much greater than in an ordinary criminal case. The prosecution, in
establishing a pattern of overt or criminal acts, must necessarily show a combination or series of
acts within the purview of Section 1(d) of the law.

These acts which constitute the combination or series must still be proven beyond reasonable doubt.
On top of that, the prosecution must establish beyond reasonable doubt such pattern of overt or
criminal acts indicative of the overall scheme or conspiracy, as well as all the other elements thereof.

Thus, Respondent Sandiganbayan was correct in its ratiocination on that point:

"The accused misread the import and meaning of the above-quoted provision (Sec. 4). The latter did
not lower the quantum of evidence necessary to prove all the elements of plunder, which still
remains proof beyond reasonable doubt. For a clearer understanding of the import of Section 4 of
the Anti-Plunder Law, quoted hereunder are pertinent portions of the legislative deliberations on the
subject:

‘MR. ALBANO. Now, Mr. Speaker, it is also elementary in our criminal law that what is alleged in the
information must be proven beyond reasonable doubt. If we will prove only one act and find him
guilty of the other acts enumerated in the information, does that not work against the right of the
accused especially so if the amount committed, say, by falsification is less than P100 million, but the
totality of the crime committed is P100 million since there is malversation, bribery, falsification of
public document, coercion, theft?

‘MR. GARCIA (P). Mr. Speaker, not everything alleged in the information needs to be proved beyond
reasonable doubt. What is required to be proved beyond reasonable doubt is every element of the
crime charged. For example, Mr. Speaker, there is an enumeration of the things taken by the robber
in the information – three pairs of pants, pieces of jewelry. These need not be proved beyond
reasonable doubt, but these will not prevent the conviction of a crime for which he was charged just
because, say, instead of 3 pairs of diamond earrings the prosecution proved only two. Now, what is
required to be proved beyond reasonable doubt is the element of the offense.

‘MR. ALBANO. I am aware of that, Mr. Speaker, but considering that in the crime of plunder the
totality of the amount is very important, I feel that such a series of overt (or) criminal acts has to be
taken singly. For instance, in the act of bribery, he was able to accumulate only P50,000 and in the
crime of extortion, he was only able to accumulate P1 million. Now, when we add the totality of the
other acts as required under this bill through the interpretation on the rule of evidence, it is just one
single act, so how can we now convict him?

‘MR. GARCIA (P). With due respect, Mr. Speaker, for purposes of proving an essential element of
the crime, there is a need to prove that element beyond reasonable doubt. For example, one
essential element of the crime is that the amount involved is P100 million. Now, in a series of
defalcations and other acts of corruption and in the enumeration the total amount would be P110 or
P120 million, but there are certain acts that could not be proved, so, we will sum up the amounts
involved in these transactions which were proved. Now, if the amount involved in these transactions,
proved beyond reasonable doubt, is P100 million, then there is a crime of plunder.’ (Deliberations of
House of Representatives on RA 7080, dated October 9, 1990).’

xxx xxx xxx

"According to the Explanatory Note of Senate Bill No. 733, the crime of plunder, which is a ‘term
chosen from other equally apt terminologies like kleptocracy and economic treason, punishes the
use of high office for personal enrichment, committed through a series [or combination] of acts done
not in the public eye but in stealth or secrecy over a period of time, that may involve so many
persons, here and abroad, and which touch so many states and territorial units.’ For this reason, it
would be unreasonable to require the prosecution to prove all the overt and criminal acts committed
by the accused as part of an ‘over-all unlawful scheme or conspiracy’ to amass ill-gotten wealth as
long as all the elements of the crime of plunder have been proven beyond reasonable doubt, such
as, the combination or series of overt or criminal acts committed by a public officer alone or in
connivance with other persons to accumulate ill-gotten wealth in the amount of at least Fifty Million
Pesos.

"The statutory language does not evince an intent to do away with the constitutional presumption of
guilt nor to lower the quantum of proof needed to establish each and every element or ingredient of
the crime of plunder."45

In connection with the foregoing, I emphasize that there is no basis for petitioner’s concern that the
conspiracy to defraud, which is not punishable under the Revised Penal Code, may have been
criminalized under RA 7080. The Anti-Plunder Law treats conspiracy as merely a mode of incurring
criminal liability, but does not criminalize or penalize it per se.

In sum, it is clear that petitioner has misunderstood the import of Section 4. Apropos the foregoing, I
maintain that, between an interpretation that produces questionable or absurd results and one that
gives life to the law, the choice for this Court is too obvious to require much elucidation or debate.

Even granting arguendo that Section 4 of the Anti-Plunder law suffers from some constitutional
infirmity, the statute may nonetheless survive the challenge of constitutionality in its entirety.
Considering that this provision pertains only to a rule on evidence or to a procedural matter that does
not bear upon or form any part of the elements of the crime of plunder, the Court may declare the
same unconstitutional and strike it off the statute without necessarily affecting the essence of the
legislative enactment. For even without the assailed provision, the law can still stand as a valid penal
statute inasmuch as the elements of the crime, as well as the penalties therein, may still be clearly
identified or sufficiently derived from the remaining valid portions of the law. This finds greater
significance when one considers that Section 7 of the law provides for a separability clause declaring
the validity, the independence and the applicability of the other remaining provisions, should any
other provision of the law be held invalid or unconstitutional.

Third Issue:

The Constitutional Power of Congress to Enact Mala Prohibita Laws

Petitioner maintains that RA 7080 "eliminated the element of mens rea from crimes which are mala
in se and converted these crimes which are components of plunder into mala prohibita, thereby
rendering it easier to prove" since, allegedly, "the prosecution need not prove criminal intent."
This asseveration is anchored upon the postulate (a very erroneous one, as already discussed
above) that the Anti-Plunder Law exempts the prosecution from proving beyond reasonable
doubt the component acts constituting plunder, including the element of criminal intent. It thus
concludes that RA 7080 violates the due process and the equal protection clauses of the
Constitution.

While I simply cannot agree that the Anti-Plunder Law eliminated mens rea from the component
crimes of plunder, my bottom-line position still is: regardless of whether plunder is classified as mala
prohibita or in se, it is the prerogative of the legislature -- which is undeniably vested with the
authority -- to determine whether certain acts are criminal irrespective of the actual intent of the
perpetrator.

The Power of the Legislature to Penalize Certain Acts

Jurisprudence dating as far back as United States v. Siy Cong Bieng46 has consistently recognized
and upheld "the power of the legislature, on grounds of public policy and compelled by necessity,
‘the great master of things,’ to forbid in a limited class of cases the doing of certain acts, and to make
their commission criminal without regard to the intent of the doer." Even earlier, in United States v.
Go Chico,47 Justice Moreland wrote that the legislature may enact criminal laws that penalize certain
acts, like the "discharge of a loaded gun," without regard for the criminal intent of the wrongdoer. In
his words:

"In the opinion of this Court it is not necessary that the appellant should have acted with criminal
intent. In many crimes, made such by statutory enactment, the intention of the person who commits
the crime is entirely immaterial. This is necessarily so. If it were not, the statute as a deterrent
influence would be substantially worthless. It would be impossible of execution. In many cases the
act complained of is itself that which produces the pernicious effect which the statute seeks to avoid.
In those cases the pernicious effect is produced with precisely the same force and result whether the
intention of the person performing the act is good or bad. The case at bar is a perfect illustration of
this. The display of a flag or emblem used, particularly within a recent period, by the enemies of the
Government tends to incite resistance to governmental functions and insurrection against
governmental authority just as effectively if made in the best of good faith as if made with the most
corrupt intent. The display itself, without the intervention of any other factor, is the evil. It is quite
different from that large class of crimes, made such by the common law or by statute, in which the
injurious effect upon the public depends upon the corrupt intention of the person perpetrating the act.
If A discharges a loaded gun and kills B, the interest which society has in the act depends, not upon
B’s death, but upon the intention with which A consummated the act. If the gun were discharged
intentionally, with the purpose of accomplishing the death of B, then society has been injured and its
security violated; but if the gun was discharged accidentally on the part of A, the society, strictly
speaking, has no concern in the matter, even though the death of B results. The reason for this is
that A does not become a danger to society and its institutions until he becomes a person with a
corrupt mind. The mere discharge of the gun and the death of B do not of themselves make him so.
With those two facts must go the corrupt intent to kill. In the case at bar, however, the evil to society
and to the Government does not depend upon the state of mind of the one who displays the banner,
but upon the effect which that display has upon the public mind. In the one case the public is
affected by the intention of the actor; in the other by the act itself."

Without being facetious, may I say that, unlike the act of discharging a gun, the acts mentioned in
Section 1(d) -- bribery, conversion, fraudulent conveyance, unjust enrichment and the like -- cannot
be committed sans criminal intent. And thus, I finally arrive at a point of agreement with petitioner:
that the acts enumerated in Section 1(d) are by their nature mala in se, and most of them are in fact
defined and penalized as such by the Revised Penal Code. Having said that, I join the view that
when we speak of plunder, we are referring essentially to two or more instances of mala in
se constituting one malum prohibitum. Thus, there should be no difficulty if each of the predicate
acts be proven beyond reasonable doubt as mala in se, even if the defense of lack of intent be taken
away as the solicitor general has suggested.
In brief, the matter of classification is not really significant, contrary to what petitioner would have us
believe. The key, obviously, is whether the same burden of proof -- proof beyond reasonable doubt -
- would apply.

Furthermore, I also concur in the opinion of the solicitor general: if it is conceded that the legislature
possesses the requisite power and authority to declare, by legal fiat, that acts not inherently criminal
in nature are punishable as offenses under special laws, then with more reason can it punish as
offenses under special laws those acts that are already inherently criminal. "This is so because the
greater (power to punish not inherently criminal acts) includes the lesser (power to punish inherently
criminal acts). In eo plus sit, semper inest et minus."48

Epilogue

"The constitutionality of laws is presumed. To justify nullification of a law, there must be a clear and
unequivocal breach of the Constitution, not a doubtful or argumentative implication; a law shall not
be declared invalid unless the conflict with the Constitution is clear beyond a reasonable doubt. ‘The
presumption is always in favor of constitutionality x x x. To doubt is to sustain.’ x x x."49

A law should not be overturned on the basis of speculation or conjecture that it is unconstitutionally
vague. Everyone is duty-bound to adopt a reasonable interpretation that will uphold a statute, carry
out its purpose and render harmonious all its parts. Indeed, the constitutionality of a statute must be
sustained if, as in this case, a ground therefor can possibly be found. For the unbending teaching is
that a law cannot be declared invalid, unless the conflict with the Constitution is shown to be clearly
beyond reasonable doubt.

To lend color and vividness to the otherwise boring legalese that has been used to dissect RA 7080,
the parties to this case laced their arguments with interesting little stories. Thus, petitioner opened
his Oral Argument with an admittedly apocryphal account of a befuddled student of law who could
not make heads or tails of the meanings of series, combination and pattern.

On the other hand, the solicitor general compares petitioner with Hans Christian Andersen’s fabled
tailors who tried to fool the emperor into walking around naked by making him believe that anyone
who did not see the invisible garment, which they had supposedly sewn for him, was "too stupid and
incompetent to appreciate its quality." This is no doubt a parody of the alleged vagueness of RA
7080, which is purportedly "invisible only to anyone who is too dull or dense to appreciate its
quality."50

I do not begrudge petitioner (or his lawyers) for exhausting every known and knowable legal tactic to
exculpate himself from the clutches of the law. Neither do I blame the solicitor general, as the
Republic’s counsel, for belittling the attempt of petitioner to shortcut his difficult legal dilemmas.
However, this Court has a pressing legal duty to discharge: to render justice though the heavens
may fall.

By the Court’s Decision, petitioner is now given the occasion to face squarely and on the merits the
plunder charges hurled at him by the Ombudsman. He may now use this opportunity to show the
courts and the Filipino people that he is indeed innocent of the heinous crime of plunder – to do so,
not by resorting to mere legalisms, but by showing the sheer falsity of the wrongdoings attributed to
him.

I think that, given his repeated claims of innocence, petitioner owes that opportunity to himself, his
family, and the teeming masses he claims to love. In short, the Court has rendered its judgment, and
the heavens have not fallen. Quite the contrary, petitioner is now accorded the opportunity to prove
his clear conscience and inculpability.

WHEREFORE, I vote to DISMISS the Petition and to uphold the constitutionality of RA 7080.