G.R. No.

208566

November 19, 2013

GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR. JOSE L. GONZALEZ

REUBEN M. ABANTE and QUINTIN PAREDES SAN DIEGO, Petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR. SECRETARY OF BUDGET
AND MANAGEMENT FLORENCIO B. ABAD, NATIONAL TREASURER ROSALIA V. DE LEON
SENATE OF THE PHILIPPINES represented by FRANKLIN M. DRILON m his capacity as
SENATE PRESIDENT and HOUSE OF REPRESENTATIVES represented by FELICIANO S.
BELMONTE, JR. in his capacity as SPEAKER OF THE HOUSE, Respondents.
x-----------------------x
G.R. No. 208493
SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON S. ALCANTARA, Petitioner,
vs.
HONORABLE FRANKLIN M. DRILON in his capacity as SENATE PRESIDENT and
HONORABLE FELICIANO S. BELMONTE, JR., in his capacity as SPEAKER OF THE HOUSE
OF REPRESENTATIVES, Respondents.
x-----------------------x
G.R. No. 209251
PEDRITO M. NEPOMUCENO, Former Mayor-Boac, Marinduque Former Provincial Board
Member -Province of Marinduque, Petitioner,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III* and SECRETARY FLORENCIO BUTCH ABAD,
DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.
DECISION
PERLAS-BERNABE, J.:
"Experience is the oracle of truth."

-James Madison
Before the Court are consolidated petitions taken under Rule 65 of the Rules of Court, all of which
assail the constitutionality of the Pork Barrel System. Due to the complexity of the subject matter, the
Court shall heretofore discuss the systems conceptual underpinnings before detailing the particulars
of the constitutional challenge.
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The Facts
I. Pork Barrel: General Concept.
"Pork Barrel" is political parlance of American -English origin. Historically, its usage may be
traced to the degrading ritual of rolling out a barrel stuffed with pork to a multitude of black
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slaves who would cast their famished bodies into the porcine feast to assuage their hunger
with morsels coming from the generosity of their well-fed master. This practice was later
compared to the actions of American legislators in trying to direct federal budgets in favor of
their districts. While the advent of refrigeration has made the actual pork barrel obsolete, it
persists in reference to political bills that "bring home the bacon" to a legislators district and
constituents. In a more technical sense, "Pork Barrel" refers to an appropriation of
government spending meant for localized projects and secured solely or primarily to bring
money to a representative's district. Some scholars on the subject further use it to refer to
legislative control of local appropriations.
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In the Philippines, "Pork Barrel" has been commonly referred to as lump-sum, discretionary
funds of Members of the Legislature, although, as will be later discussed, its usage would
evolve in reference to certain funds of the Executive.
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II. History of Congressional Pork Barrel in the Philippines.

A. Pre-Martial Law Era (1922-1972).
Act 3044, or the Public Works Act of 1922, is considered as the earliest form of
"Congressional Pork Barrel" in the Philippines since the utilization of the funds
appropriated therein were subjected to post-enactment legislator approval.
Particularly, in the area of fund release, Section 3 provides that the sums
appropriated for certain public works projects "shall be distributed x x x subject to the
approval of a joint committee elected by the Senate and the House of
Representatives. "The committee from each House may also authorize one of its
members to approve the distribution made by the Secretary of Commerce and
Communications." Also, in the area of fund realignment, the same section provides
that the said secretary, "with the approval of said joint committee, or of the authorized
members thereof, may, for the purposes of said distribution, transfer unexpended
portions of any item of appropriation under this Act to any other item hereunder."
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In 1950, it has been documented that post-enactment legislator participation

broadened from the areas of fund release and realignment to the area of project
identification. During that year, the mechanics of the public works act was modified to
the extent that the discretion of choosing projects was transferred from the Secretary
of Commerce and Communications to legislators. "For the first time, the law carried a
list of projects selected by Members of Congress, they being the representatives of
the people, either on their own account or by consultation with local officials or civil
leaders." During this period, the pork barrel process commenced with local
government councils, civil groups, and individuals appealing to Congressmen or
Senators for projects. Petitions that were accommodated formed part of a legislators
allocation, and the amount each legislator would eventually get is determined in a
caucus convened by the majority. The amount was then integrated into the
administration bill prepared by the Department of Public Works and Communications.
Thereafter, the Senate and the House of Representatives added their own provisions
to the bill until it was signed into law by the President the Public Works Act. In the
1960s, however, pork barrel legislation reportedly ceased in view of the stalemate
between the House of Representatives and the Senate.
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B. Martial Law Era (1972-1986).

While the previous" Congressional Pork Barrel" was apparently discontinued in 1972
after Martial Law was declared, an era when "one man controlled the
legislature," the reprieve was only temporary. By 1982, the Batasang Pambansa
had already introduced a new item in the General Appropriations Act (GAA) called
the" Support for Local Development Projects" (SLDP) under the article on "National
Aid to Local Government Units". Based on reports, it was under the SLDP that the
practice of giving lump-sum allocations to individual legislators began, with each
assemblyman receiving P500,000.00. Thereafter, assemblymen would communicate
their project preferences to the Ministry of Budget and Management for approval.
Then, the said ministry would release the allocation papers to the Ministry of Local
Governments, which would, in turn, issue the checks to the city or municipal
treasurers in the assemblymans locality. It has been further reported that
"Congressional Pork Barrel" projects under the SLDP also began to cover not only
public works projects, or so- called "hard projects", but also "soft projects", or nonpublic works projects such as those which would fall under the categories of, among
others, education, health and livelihood.
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C. Post-Martial Law Era:

Corazon Cojuangco Aquino Administration (1986-1992).
After the EDSA People Power Revolution in 1986 and the restoration of Philippine
democracy, "Congressional Pork Barrel" was revived in the form of the "Mindanao
Development Fund" and the "Visayas Development Fund" which were created with
lump-sum appropriations of P480 Million and P240 Million, respectively, for the
funding of development projects in the Mindanao and Visayas areas in 1989. It has
been documented that the clamor raised by the Senators and the Luzon legislators
for a similar funding, prompted the creation of the "Countrywide Development Fund"
(CDF) which was integrated into the 1990 GAA with an initial funding ofP2.3 Billion
to cover "small local infrastructure and other priority community projects."
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Under the GAAs for the years 1991 and 1992, CDF funds were, with the approval of
the President, to be released directly to the implementing agencies but "subject to
the submission of the required list of projects and activities."Although the GAAs from
1990 to 1992 were silent as to the amounts of allocations of the individual legislators,
as well as their participation in the identification of projects, it has been reported that
by 1992, Representatives were receivingP12.5 Million each in CDF funds, while
Senators were receiving P18 Million each, without any limitation or qualification, and
that they could identify any kind of project, from hard or infrastructure projects such
as roads, bridges, and buildings to "soft projects" such as textbooks, medicines, and
scholarships.
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D. Fidel Valdez Ramos (Ramos) Administration (1992-1998).

The following year, or in 1993, the GAA explicitly stated that the release of CDF
funds was to be made upon the submission of the list of projects and activities
identified by, among others, individual legislators. For the first time, the 1993 CDF
Article included an allocation for the Vice-President. As such, Representatives were
allocated P12.5 Million each in CDF funds, Senators, P18 Million each, and the VicePresident, P20 Million.
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In 1994, 1995, and 1996, the GAAs contained the same provisions on project
identification and fund release as found in the 1993 CDF Article. In addition, however,
the Department of Budget and Management (DBM) was directed to submit reports to
the Senate Committee on Finance and the House Committee on Appropriations on
the releases made from the funds.
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Under the 1997 CDF Article, Members of Congress and the Vice-President, in
consultation with the implementing agency concerned, were directed to submit to the
DBM the list of 50% of projects to be funded from their respective CDF allocations
which shall be duly endorsed by (a) the Senate President and the Chairman of the
Committee on Finance, in the case of the Senate, and (b) the Speaker of the House
of Representatives and the Chairman of the Committee on Appropriations, in the
case of the House of Representatives; while the list for the remaining 50% was to be
submitted within six (6) months thereafter. The same article also stated that the
project list, which would be published by the DBM, "shall be the basis for the release
of funds" and that "no funds appropriated herein shall be disbursed for projects not
included in the list herein required."
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The following year, or in 1998, the foregoing provisions regarding the required lists
and endorsements were reproduced, except that the publication of the project list
was no longer required as the list itself sufficed for the release of CDF Funds.
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The CDF was not, however, the lone form of "Congressional Pork Barrel" at that
time. Other forms of "Congressional Pork Barrel" were reportedly fashioned and
inserted into the GAA (called "Congressional Insertions" or "CIs") in order to
perpetuate the ad ministrations political agenda. It has been articulated that since
CIs "formed part and parcel of the budgets of executive departments, they were not
easily identifiable and were thus harder to monitor." Nonetheless, the lawmakers
themselves as well as the finance and budget officials of the implementing agencies,
as well as the DBM, purportedly knew about the insertions. Examples of these CIs
are the Department of Education (DepEd) School Building Fund, the Congressional
Initiative Allocations, the Public Works Fund, the El Nio Fund, and the Poverty
Alleviation Fund. The allocations for the School Building Fund, particularly, shall
be made upon prior consultation with the representative of the legislative district
concerned. Similarly, the legislators had the power to direct how, where and when
these appropriations were to be spent.
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E. Joseph Ejercito Estrada (Estrada) Administration (1998-2001).

In 1999, the CDF was removed in the GAA and replaced by three (3) separate
forms of CIs, namely, the "Food Security Program Fund," the "Lingap Para Sa
Mahihirap Program Fund," and the "Rural/Urban Development Infrastructure
Program Fund," all of which contained a special provision requiring "prior
consultation" with the Member s of Congress for the release of the funds.
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It was in the year 2000 that the "Priority Development Assistance Fund" (PDAF)
appeared in the GAA. The requirement of "prior consultation with the respective
Representative of the District" before PDAF funds were directly released to the
implementing agency concerned was explicitly stated in the 2000 PDAF Article.
Moreover, realignment of funds to any expense category was expressly allowed, with
the sole condition that no amount shall be used to fund personal services and other
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personnel benefits. The succeeding PDAF provisions remained the same in view of
the re-enactment of the 2000 GAA for the year 2001.
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F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010).

The 2002 PDAF Article was brief and straightforward as it merely contained a single
special provision ordering the release of the funds directly to the implementing
agency or local government unit concerned, without further qualifications. The
following year, 2003, the same single provision was present, with simply an
expansion of purpose and express authority to realign. Nevertheless, the provisions
in the 2003 budgets of the Department of Public Works and Highways (DPWH) and
the DepEd required prior consultation with Members of Congress on the aspects of
implementation delegation and project list submission, respectively. In 2004, the
2003 GAA was re-enacted.
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In 2005, the PDAF Article provided that the PDAF shall be used "to fund priority
programs and projects under the ten point agenda of the national government and
shall be released directly to the implementing agencies." It also introduced the
program menu concept, which is essentially a list of general programs and
implementing agencies from which a particular PDAF project may be subsequently
chosen by the identifying authority. The 2005 GAA was re-enacted in 2006 and
hence, operated on the same bases. In similar regard, the program menu concept
was consistently integrated into the 2007, 2008, 2009, and 2010 GAAs.
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Textually, the PDAF Articles from 2002 to 2010 were silent with respect to the specific
amounts allocated for the individual legislators, as well as their participation in the
proposal and identification of PDAF projects to be funded. In contrast to the PDAF
Articles, however, the provisions under the DepEd School Building Program and the
DPWH budget, similar to its predecessors, explicitly required prior consultation with
the concerned Member of Congress anent certain aspects of project implementation.
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Significantly, it was during this era that provisions which allowed formal participation
of non-governmental organizations (NGO) in the implementation of government
projects were introduced. In the Supplemental Budget for 2006, with respect to the
appropriation for school buildings, NGOs were, by law, encouraged to participate. For
such purpose, the law stated that "the amount of at least P250 Million of the P500
Million allotted for the construction and completion of school buildings shall be made
available to NGOs including the Federation of Filipino-Chinese Chambers of
Commerce and Industry, Inc. for its "Operation Barrio School" program, with
capability and proven track records in the construction of public school buildings x x
x." The same allocation was made available to NGOs in the 2007 and 2009 GAAs
under the DepEd Budget. Also, it was in 2007 that the Government Procurement
Policy Board (GPPB) issued Resolution No. 12-2007 dated June 29, 2007 (GPPB
Resolution 12-2007), amending the implementing rules and regulations of RA
9184, the Government Procurement Reform Act, to include, as a form of negotiated
procurement, the procedure whereby the Procuring Entity (the implementing
agency) may enter into a memorandum of agreement with an NGO, provided that
"an appropriation law or ordinance earmarks an amount to be specifically contracted
out to NGOs."
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G. Present Administration (2010-Present).

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Differing from previous PDAF Articles but similar to the CDF Articles, the 2011 PDAF
Article included an express statement on lump-sum amounts allocated for individual
legislators and the Vice-President: Representatives were given P70 Million each,
broken down into P40 Million for "hard projects" and P30 Million for "soft projects";
while P200 Million was given to each Senator as well as the Vice-President, with
a P100 Million allocation each for "hard" and "soft projects." Likewise, a provision on
realignment of funds was included, but with the qualification that it may be allowed
only once. The same provision also allowed the Secretaries of Education, Health,
Social Welfare and Development, Interior and Local Government, Environment and
Natural Resources, Energy, and Public Works and Highways to realign PDAF Funds,
with the further conditions that: (a) realignment is within the same implementing unit
and same project category as the original project, for infrastructure projects; (b)
allotment released has not yet been obligated for the original scope of work, and (c)
the request for realignment is with the concurrence of the legislator concerned.
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In the 2012 and 2013 PDAF Articles, it is stated that the "identification of projects
and/or designation of beneficiaries shall conform to the priority list, standard or
design prepared by each implementing agency (priority list requirement) x x x."
However, as practiced, it would still be the individual legislator who would choose
and identify the project from the said priority list.
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Provisions on legislator allocations as well as fund realignment were included in

the 2012 and 2013 PDAF Articles; but the allocation for the Vice-President, which
was pegged at P200 Million in the 2011 GAA, had been deleted. In addition, the 2013
PDAF Article now allowed LGUs to be identified as implementing agencies if they
have the technical capability to implement the projects. Legislators were also
allowed to identify programs/projects, except for assistance to indigent patients and
scholarships, outside of his legislative district provided that he secures the written
concurrence of the legislator of the intended outside-district, endorsed by the
Speaker of the House. Finally, any realignment of PDAF funds, modification and
revision of project identification, as well as requests for release of funds, were all
required to be favorably endorsed by the House Committee on Appropriations and
the Senate Committee on Finance, as the case may be.
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III. History of Presidential Pork Barrel in the Philippines.

While the term "Pork Barrel" has been typically associated with lump-sum, discretionary
funds of Members of Congress, the present cases and the recent controversies on the
matter have, however, shown that the terms usage has expanded to include certain funds of
the President such as the Malampaya Funds and the Presidential Social Fund.
On the one hand, the Malampaya Funds was created as a special fund under Section 8 of
Presidential Decree No. (PD) 910, issued by then President Ferdinand E. Marcos (Marcos)
on March 22, 1976. In enacting the said law, Marcos recognized the need to set up a special
fund to help intensify, strengthen, and consolidate government efforts relating to the
exploration, exploitation, and development of indigenous energy resources vital to economic
growth. Due to the energy-related activities of the government in the Malampaya natural
gas field in Palawan, or the "Malampaya Deep Water Gas-to-Power Project", the special
fund created under PD 910 has been currently labeled as Malampaya Funds.
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On the other hand the Presidential Social Fund was created under Section 12, Title IV of PD
1869, or the Charter of the Philippine Amusement and Gaming Corporation (PAGCOR). PD
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1869 was similarly issued by Marcos on July 11, 1983. More than two (2) years after, he
amended PD 1869 and accordingly issued PD 1993 on October 31, 1985, amending
Section 12 of the former law. As it stands, the Presidential Social Fund has been described
as a special funding facility managed and administered by the Presidential Management
Staff through which the President provides direct assistance to priority programs and projects
not funded under the regular budget. It is sourced from the share of the government in the
aggregate gross earnings of PAGCOR.
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IV. Controversies in the Philippines.

Over the decades, "pork" funds in the Philippines have increased tremendously, owing in no
small part to previous Presidents who reportedly used the "Pork Barrel" in order to gain
congressional support. It was in 1996 when the first controversy surrounding the "Pork
Barrel" erupted. Former Marikina City Representative Romeo Candazo (Candazo), then an
anonymous source, "blew the lid on the huge sums of government money that regularly went
into the pockets of legislators in the form of kickbacks." He said that "the kickbacks were
SOP (standard operating procedure) among legislators and ranged from a low 19 percent to
a high 52 percent of the cost of each project, which could be anything from dredging, rip
rapping, sphalting, concreting, and construction of school buildings." "Other sources of
kickbacks that Candazo identified were public funds intended for medicines and textbooks. A
few days later, the tale of the money trail became the banner story of the Philippine Daily
Inquirer issue of August 13, 1996, accompanied by an illustration of a roasted pig." "The
publication of the stories, including those about congressional initiative allocations of certain
lawmakers, including P3.6 Billion for a Congressman, sparked public outrage."
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Thereafter, or in 2004, several concerned citizens sought the nullification of the PDAF as
enacted in the 2004 GAA for being unconstitutional. Unfortunately, for lack of "any pertinent
evidentiary support that illegal misuse of PDAF in the form of kickbacks has become a
common exercise of unscrupulous Members of Congress," the petition was dismissed.
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Recently, or in July of the present year, the National Bureau of Investigation (NBI) began its
probe into allegations that "the government has been defrauded of some P10 Billion over the
past 10 years by a syndicate using funds from the pork barrel of lawmakers and various
government agencies for scores of ghost projects." The investigation was spawned by
sworn affidavits of six (6) whistle-blowers who declared that JLN Corporation "JLN"
standing for Janet Lim Napoles (Napoles) had swindled billions of pesos from the public
coffers for "ghost projects" using no fewer than 20 dummy NGOs for an entire decade. While
the NGOs were supposedly the ultimate recipients of PDAF funds, the whistle-blowers
declared that the money was diverted into Napoles private accounts. Thus, after its
investigation on the Napoles controversy, criminal complaints were filed before the Office of
the Ombudsman, charging five (5) lawmakers for Plunder, and three (3) other lawmakers for
Malversation, Direct Bribery, and Violation of the Anti-Graft and Corrupt Practices Act. Also
recommended to be charged in the complaints are some of the lawmakers chiefs -of-staff or
representatives, the heads and other officials of three (3) implementing agencies, and the
several presidents of the NGOs set up by Napoles.
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On August 16, 2013, the Commission on Audit (CoA) released the results of a three-year
audit investigation covering the use of legislators' PDAF from 2007 to 2009, or during the
last three (3) years of the Arroyo administration. The purpose of the audit was to determine
the propriety of releases of funds under PDAF and the Various Infrastructures including Local
Projects (VILP) by the DBM, the application of these funds and the implementation of
projects by the appropriate implementing agencies and several government-owned-and99

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controlled corporations (GOCCs). The total releases covered by the audit amounted
to P8.374 Billion in PDAF and P32.664 Billion in VILP, representing 58% and 32%,
respectively, of the total PDAF and VILP releases that were found to have been made
nationwide during the audit period. Accordingly, the Co As findings contained in its Report
No. 2012-03 (CoA Report), entitled "Priority Development Assistance Fund (PDAF) and
Various Infrastructures including Local Projects (VILP)," were made public, the highlights of
which are as follows:
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Amounts released for projects identified by a considerable number of legislators

significantly exceeded their respective allocations.
Amounts were released for projects outside of legislative districts of sponsoring
members of the Lower House.
Total VILP releases for the period exceeded the total amount appropriated under
the 2007 to 2009 GAAs.
Infrastructure projects were constructed on private lots without these having been
turned over to the government.
Significant amounts were released to implementing agencies without the latters
endorsement and without considering their mandated functions, administrative and
technical capabilities to implement projects.
Implementation of most livelihood projects was not undertaken by the
implementing agencies themselves but by NGOs endorsed by the proponent
legislators to which the Funds were transferred.
The funds were transferred to the NGOs in spite of the absence of any
appropriation law or ordinance.
Selection of the NGOs were not compliant with law and regulations.
Eighty-Two (82) NGOs entrusted with implementation of seven hundred seventy
two (772) projects amount to P6.156 Billion were either found questionable, or
submitted questionable/spurious documents, or failed to liquidate in whole or in part
their utilization of the Funds.
Procurement by the NGOs, as well as some implementing agencies, of goods and
services reportedly used in the projects were not compliant with law.
As for the "Presidential Pork Barrel", whistle-blowers alleged that" at least P900 Million from
royalties in the operation of the Malampaya gas project off Palawan province intended for
agrarian reform beneficiaries has gone into a dummy NGO." According to incumbent CoA
Chairperson Maria Gracia Pulido Tan (CoA Chairperson), the CoA is, as of this writing, in the
process of preparing "one consolidated report" on the Malampaya Funds.
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V. The Procedural Antecedents.

Spurred in large part by the findings contained in the CoA Report and the Napoles
controversy, several petitions were lodged before the Court similarly seeking that the "Pork

Barrel System" be declared unconstitutional. To recount, the relevant procedural antecedents

in these cases are as follows:
On August 28, 2013, petitioner Samson S. Alcantara (Alcantara), President of the Social Justice
Society, filed a Petition for Prohibition of even date under Rule 65 of the Rules of Court (Alcantara
Petition), seeking that the "Pork Barrel System" be declared unconstitutional, and a writ of prohibition
be issued permanently restraining respondents Franklin M. Drilon and Feliciano S. Belmonte, Jr., in
their respective capacities as the incumbent Senate President and Speaker of the House of
Representatives, from further taking any steps to enact legislation appropriating funds for the "Pork
Barrel System," in whatever form and by whatever name it may be called, and from approving further
releases pursuant thereto. The Alcantara Petition was docketed as G.R. No. 208493.
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On September 3, 2013, petitioners Greco Antonious Beda B. Belgica, Jose L. Gonzalez, Reuben M.
Abante, Quintin Paredes San Diego (Belgica, et al.), and Jose M. Villegas, Jr. (Villegas) filed an
Urgent Petition For Certiorari and Prohibition With Prayer For The Immediate Issuance of Temporary
Restraining Order (TRO) and/or Writ of Preliminary Injunction dated August 27, 2013 under Rule 65
of the Rules of Court (Belgica Petition), seeking that the annual "Pork Barrel System," presently
embodied in the provisions of the GAA of 2013 which provided for the 2013 PDAF, and the
Executives lump-sum, discretionary funds, such as the Malampaya Funds and the Presidential
Social Fund, be declared unconstitutional and null and void for being acts constituting grave abuse
of discretion. Also, they pray that the Court issue a TRO against respondents Paquito N. Ochoa, Jr.,
Florencio B. Abad (Secretary Abad) and Rosalia V. De Leon, in their respective capacities as the
incumbent Executive Secretary, Secretary of the Department of Budget and Management (DBM),
and National Treasurer, or their agents, for them to immediately cease any expenditure under the
aforesaid funds. Further, they pray that the Court order the foregoing respondents to release to the
CoA and to the public: (a) "the complete schedule/list of legislators who have availed of their PDAF
and VILP from the years 2003 to 2013, specifying the use of the funds, the project or activity and the
recipient entities or individuals, and all pertinent data thereto"; and (b) "the use of the Executives
lump-sum, discretionary funds, including the proceeds from the x x x Malampaya Funds and
remittances from the PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity and
the recipient entities or individuals, and all pertinent data thereto." Also, they pray for the "inclusion
in budgetary deliberations with the Congress of all presently off-budget, lump-sum, discretionary
funds including, but not limited to, proceeds from the Malampaya Funds and remittances from the
PAGCOR." The Belgica Petition was docketed as G.R. No. 208566.
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Lastly, on September 5, 2013, petitioner Pedrito M. Nepomuceno (Nepomuceno), filed a Petition

dated August 23, 2012 (Nepomuceno Petition), seeking that the PDAF be declared unconstitutional,
and a cease and desist order be issued restraining President Benigno Simeon S. Aquino III
(President Aquino) and Secretary Abad from releasing such funds to Members of Congress and,
instead, allow their release to fund priority projects identified and approved by the Local
Development Councils in consultation with the executive departments, such as the DPWH, the
Department of Tourism, the Department of Health, the Department of Transportation, and
Communication and the National Economic Development Authority. The Nepomuceno Petition was
docketed as UDK-14951.
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On September 10, 2013, the Court issued a Resolution of even date (a) consolidating all cases; (b)
requiring public respondents to comment on the consolidated petitions; (c) issuing a TRO
(September 10, 2013 TRO) enjoining the DBM, National Treasurer, the Executive Secretary, or any
of the persons acting under their authority from releasing (1) the remaining PDAF allocated to
Members of Congress under the GAA of 2013, and (2) Malampaya Funds under the phrase "for such
other purposes as may be hereafter directed by the President" pursuant to Section 8 of PD 910 but
not for the purpose of "financing energy resource development and exploitation programs and

projects of the government under the same provision; and (d) setting the consolidated cases for
Oral Arguments on October 8, 2013.
On September 23, 2013, the Office of the Solicitor General (OSG) filed a Consolidated Comment
(Comment) of even date before the Court, seeking the lifting, or in the alternative, the partial lifting
with respect to educational and medical assistance purposes, of the Courts September 10, 2013
TRO, and that the consolidated petitions be dismissed for lack of merit.
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On September 24, 2013, the Court issued a Resolution of even date directing petitioners to reply to
the Comment.
Petitioners, with the exception of Nepomuceno, filed their respective replies to the Comment: (a) on
September 30, 2013, Villegas filed a separate Reply dated September 27, 2013 (Villegas Reply); (b)
on October 1, 2013, Belgica, et al. filed a Reply dated September 30, 2013 (Belgica Reply); and (c)
on October 2, 2013, Alcantara filed a Reply dated October 1, 2013.
On October 1, 2013, the Court issued an Advisory providing for the guidelines to be observed by the
parties for the Oral Arguments scheduled on October 8, 2013. In view of the technicality of the
issues material to the present cases, incumbent Solicitor General Francis H. Jardeleza (Solicitor
General) was directed to bring with him during the Oral Arguments representative/s from the DBM
and Congress who would be able to competently and completely answer questions related to,
among others, the budgeting process and its implementation. Further, the CoA Chairperson was
appointed as amicus curiae and thereby requested to appear before the Court during the Oral
Arguments.
On October 8 and 10, 2013, the Oral Arguments were conducted. Thereafter, the Court directed the
parties to submit their respective memoranda within a period of seven (7) days, or until October 17,
2013, which the parties subsequently did.
The Issues Before the Court
Based on the pleadings, and as refined during the Oral Arguments, the following are the main issues
for the Courts resolution:
I. Procedural Issues.
Whether or not (a) the issues raised in the consolidated petitions involve an actual and justiciable
controversy; (b) the issues raised in the consolidated petitions are matters of policy not subject to
judicial review; (c) petitioners have legal standing to sue; and (d) the Courts Decision dated August
19, 1994 in G.R. Nos. 113105, 113174, 113766, and 113888, entitled "Philippine Constitution
Association v. Enriquez" (Philconsa) and Decision dated April 24, 2012 in G.R. No. 164987, entitled
"Lawyers Against Monopoly and Poverty v. Secretary of Budget and Management" (LAMP) bar the
re-litigatio n of the issue of constitutionality of the "Pork Barrel System" under the principles of res
judicata and stare decisis.
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II. Substantive Issues on the "Congressional Pork Barrel."

Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel Laws similar thereto
are unconstitutional considering that they violate the principles of/constitutional provisions on (a)
separation of powers; (b) non-delegability of legislative power; (c) checks and balances; (d)
accountability; (e) political dynasties; and (f) local autonomy.

III. Substantive Issues on the "Presidential Pork Barrel."

Whether or not the phrases (a) "and for such other purposes as may be hereafter directed by the
President" under Section 8 of PD 910, relating to the Malampaya Funds, and (b) "to finance the
priority infrastructure development projects and to finance the restoration of damaged or destroyed
facilities due to calamities, as may be directed and authorized by the Office of the President of the
Philippines" under Section 12 of PD 1869, as amended by PD 1993, relating to the Presidential
Social Fund, are unconstitutional insofar as they constitute undue delegations of legislative power.
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These main issues shall be resolved in the order that they have been stated. In addition, the Court
shall also tackle certain ancillary issues as prompted by the present cases.
The Courts Ruling
The petitions are partly granted.
I. Procedural Issues.
The prevailing rule in constitutional litigation is that no question involving the constitutionality or
validity of a law or governmental act may be heard and decided by the Court unless there is
compliance with the legal requisites for judicial inquiry, namely: (a) there must be an actual case or
controversy calling for the exercise of judicial power; (b) the person challenging the act must have
the standing to question the validity of the subject act or issuance; (c) the question of constitutionality
must be raised at the earliest opportunity ; and (d) the issue of constitutionality must be the very lis
mota of the case. Of these requisites, case law states that the first two are the most
important and, therefore, shall be discussed forthwith.
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A. Existence of an Actual Case or Controversy.

By constitutional fiat, judicial power operates only when there is an actual case or controversy. This
is embodied in Section 1, Article VIII of the 1987 Constitution which pertinently states that "judicial
power includes the duty of the courts of justice to settle actual controversies involving rights which
are legally demandable and enforceable x x x." Jurisprudence provides that an actual case or
controversy is one which "involves a conflict of legal rights, an assertion of opposite legal claims,
susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or
dispute. In other words, "there must be a contrariety of legal rights that can be interpreted and
enforced on the basis of existing law and jurisprudence." 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."
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Based on these principles, the Court finds that there exists an actual and justiciable controversy in
these cases.
The requirement of contrariety of legal rights is clearly satisfied by the antagonistic positions of the
parties on the constitutionality of the "Pork Barrel System." Also, the questions in these consolidated

cases are ripe for adjudication since the challenged funds and the provisions allowing for their
utilization such as the 2013 GAA for the PDAF, PD 910 for the Malampaya Funds and PD 1869, as
amended by PD 1993, for the Presidential Social Fund are currently existing and operational;
hence, there exists an immediate or threatened injury to petitioners as a result of the unconstitutional
use of these public funds.
As for the PDAF, the Court must dispel the notion that the issues related thereto had been rendered
moot and academic by the reforms undertaken by respondents. A case becomes moot when there is
no more actual controversy between the parties or no useful purpose can be served in passing upon
the merits. Differing from this description, the Court observes that respondents proposed line-item
budgeting scheme would not terminate the controversy nor diminish the useful purpose for its
resolution since said reform is geared towards the 2014 budget, and not the 2013 PDAF Article
which, being a distinct subject matter, remains legally effective and existing. Neither will the
Presidents declaration that he had already "abolished the PDAF" render the issues on PDAF moot
precisely because the Executive branch of government has no constitutional authority to nullify or
annul its legal existence. By constitutional design, the annulment or nullification of a law may be
done either by Congress, through the passage of a repealing law, or by the Court, through a
declaration of unconstitutionality. Instructive on this point is the following exchange between
Associate Justice Antonio T. Carpio (Justice Carpio) and the Solicitor General during the Oral
Arguments:
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Justice Carpio: The President has taken an oath to faithfully execute the law, correct? Solicitor
General Jardeleza: Yes, Your Honor.
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Justice Carpio: And so the President cannot refuse to implement the General Appropriations Act,
correct?
Solicitor General Jardeleza: Well, that is our answer, Your Honor. In the case, for example of the
PDAF, the President has a duty to execute the laws but in the face of the outrage over PDAF, the
President was saying, "I am not sure that I will continue the release of the soft projects," and that
started, Your Honor. Now, whether or not that (interrupted)
Justice Carpio: Yeah. I will grant the President if there are anomalies in the project, he has the power
to stop the releases in the meantime, to investigate, and that is Section 38 of Chapter 5 of Book 6 of
the Revised Administrative Code x x x. So at most the President can suspend, now if the President
believes that the PDAF is unconstitutional, can he just refuse to implement it?
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Solicitor General Jardeleza: No, Your Honor, as we were trying to say in the specific case of the
PDAF because of the CoA Report, because of the reported irregularities and this Court can take
judicial notice, even outside, outside of the COA Report, you have the report of the whistle-blowers,
the President was just exercising precisely the duty .
xxxx
Justice Carpio: Yes, and that is correct. Youve seen the CoA Report, there are anomalies, you stop
and investigate, and prosecute, he has done that. But, does that mean that PDAF has been
repealed?
Solicitor General Jardeleza: No, Your Honor x x x.
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Justice Carpio: So that PDAF can be legally abolished only in two (2) cases. Congress passes a law
to repeal it, or this Court declares it unconstitutional, correct?
Solictor General Jardeleza: Yes, Your Honor.
Justice Carpio: The President has no power to legally abolish PDAF. (Emphases supplied)
Even on the assumption of mootness, jurisprudence, nevertheless, dictates that "the moot and
academic principle is not a magical formula that can automatically dissuade the Court in resolving a
case." The Court will decide cases, otherwise moot, if: first, there is a grave violation of the
Constitution; second, the exceptional character of the situation and the paramount public interest is
involved; third, when the constitutional issue raised requires formulation of controlling principles to
guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading
review.
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The applicability of the first exception is clear from the fundamental posture of petitioners they
essentially allege grave violations of the Constitution with respect to, inter alia, the principles of
separation of powers, non-delegability of legislative power, checks and balances, accountability and
local autonomy.
The applicability of the second exception is also apparent from the nature of the interests involved
the constitutionality of the very system within which significant amounts of public funds have been
and continue to be utilized and expended undoubtedly presents a situation of exceptional character
as well as a matter of paramount public interest. The present petitions, in fact, have been lodged at a
time when the systems flaws have never before been magnified. To the Courts mind, the
coalescence of the CoA Report, the accounts of numerous whistle-blowers, and the governments
own recognition that reforms are needed "to address the reported abuses of the
PDAF" demonstrates a prima facie pattern of abuse which only underscores the importance of the
matter. It is also by this finding that the Court finds petitioners claims as not merely theorized,
speculative or hypothetical. Of note is the weight accorded by the Court to the findings made by the
CoA which is the constitutionally-mandated audit arm of the government. In Delos Santos v. CoA, a
recent case wherein the Court upheld the CoAs disallowance of irregularly disbursed PDAF funds, it
was emphasized that:
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The COA is endowed with enough latitude to determine, prevent, and disallow irregular,
unnecessary, excessive, extravagant or unconscionable expenditures of government funds. It is
tasked to be vigilant and conscientious in safeguarding the proper use of the government's, and
ultimately the people's, property. The exercise of its general audit power is among the constitutional
mechanisms that gives life to the check and balance system inherent in our form of government.
It is the general policy of the Court to sustain the decisions of administrative authorities, especially
one which is constitutionally-created, such as the CoA, not only on the basis of the doctrine of
separation of powers but also for their presumed expertise in the laws they are entrusted to enforce.
Findings of administrative agencies are accorded not only respect but also finality when the decision
and order are not tainted with unfairness or arbitrariness that would amount to grave abuse of
discretion. It is only when the CoA has acted without or in excess of jurisdiction, or with grave abuse
of discretion amounting to lack or excess of jurisdiction, that this Court entertains a petition
questioning its rulings. x x x. (Emphases supplied)
Thus, if only for the purpose of validating the existence of an actual and justiciable controversy in
these cases, the Court deems the findings under the CoA Report to be sufficient.

The Court also finds the third exception to be applicable largely due to the practical need for a
definitive ruling on the systems constitutionality. As disclosed during the Oral Arguments, the CoA
Chairperson estimates that thousands of notices of disallowances will be issued by her office in
connection with the findings made in the CoA Report. In this relation, Associate Justice Marvic Mario
Victor F. Leonen (Justice Leonen) pointed out that all of these would eventually find their way to the
courts. Accordingly, there is a compelling need to formulate controlling principles relative to the
issues raised herein in order to guide the bench, the bar, and the public, not just for the expeditious
resolution of the anticipated disallowance cases, but more importantly, so that the government may
be guided on how public funds should be utilized in accordance with constitutional principles.
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Finally, the application of the fourth exception is called for by the recognition that the preparation and
passage of the national budget is, by constitutional imprimatur, an affair of annual occurrence. The
relevance of the issues before the Court does not cease with the passage of a "PDAF -free budget
for 2014." The evolution of the "Pork Barrel System," by its multifarious iterations throughout the
course of history, lends a semblance of truth to petitioners claim that "the same dog will just
resurface wearing a different collar." In Sanlakas v. Executive Secretary, the government had
already backtracked on a previous course of action yet the Court used the "capable of repetition but
evading review" exception in order "to prevent similar questions from re- emerging." The situation
similarly holds true to these cases. Indeed, the myriad of issues underlying the manner in which
certain public funds are spent, if not resolved at this most opportune time, are capable of repetition
and hence, must not evade judicial review.
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B. Matters of Policy: the Political Question Doctrine.

The "limitation on the power of judicial review to actual cases and controversies carries the
assurance that "the courts will not intrude into areas committed to the other branches of
government." Essentially, the foregoing limitation is a restatement of the political question doctrine
which, under the classic formulation of Baker v. Carr, applies when there is found, among others, "a
textually demonstrable constitutional commitment of the issue to a coordinate political department,"
"a lack of judicially discoverable and manageable standards for resolving it" or "the impossibility of
deciding without an initial policy determination of a kind clearly for non- judicial discretion." Cast
against this light, respondents submit that the "the political branches are in the best position not only
to perform budget-related reforms but also to do them in response to the specific demands of their
constituents" and, as such, "urge the Court not to impose a solution at this stage."
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The Court must deny respondents submission.

Suffice it to state that the issues raised before the Court do not present political but legal questions
which are within its province to resolve. A political question refers to "those questions which, under
the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or executive branch of the
Government. It is concerned with issues dependent upon the wisdom, not legality, of a particular
measure." The intrinsic constitutionality of the "Pork Barrel System" is not an issue dependent upon
the wisdom of the political branches of government but rather a legal one which the Constitution
itself has commanded the Court to act upon. Scrutinizing the contours of the system along
constitutional lines is a task that the political branches of government are incapable of rendering
precisely because it is an exercise of judicial power. More importantly, the present Constitution has
not only vested the Judiciary the right to exercise judicial power but essentially makes it a duty to
proceed therewith. Section 1, Article VIII of the 1987 Constitution cannot be any clearer: "The judicial
power shall be vested in one Supreme Court and in such lower courts as may be established by law.
It includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave abuse
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of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of the Government." In Estrada v. Desierto, the expanded concept of judicial power under the 1987
Constitution and its effect on the political question doctrine was explained as follows:
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To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine
when it expanded the power of judicial review of this court not only to settle actual controversies
involving rights which are legally demandable and enforceable but also to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of government. Heretofore, the judiciary has focused on the "thou shalt
not's" of the Constitution directed against the exercise of its jurisdiction. With the new provision,
however, courts are given a greater prerogative to determine what it can do to prevent grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of government. Clearly, the new provision did not just grant the Court power of doing nothing. x x x
(Emphases supplied)
It must also be borne in mind that when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other departments; does not in reality nullify
or invalidate an act of the legislature or the executive, but only asserts the solemn and sacred
obligation assigned to it by the Constitution." To a great extent, the Court is laudably cognizant of
the reforms undertaken by its co-equal branches of government. But it is by constitutional force that
the Court must faithfully perform its duty. Ultimately, it is the Courts avowed intention that a
resolution of these cases would not arrest or in any manner impede the endeavors of the two other
branches but, in fact, help ensure that the pillars of change are erected on firm constitutional
grounds. After all, it is in the best interest of the people that each great branch of government, within
its own sphere, contributes its share towards achieving a holistic and genuine solution to the
problems of society. For all these reasons, the Court cannot heed respondents plea for judicial
restraint.
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C. Locus Standi.
"The gist of the question of standing is whether a party alleges such personal stake in the outcome
of the controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court depends for illumination of difficult constitutional questions. Unless a
person is injuriously affected in any of his constitutional rights by the operation of statute or
ordinance, he has no standing."
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Petitioners have come before the Court in their respective capacities as citizen-taxpayers and
accordingly, assert that they "dutifully contribute to the coffers of the National Treasury." Clearly, as
taxpayers, they possess the requisite standing to question the validity of the existing "Pork Barrel
System" under which the taxes they pay have been and continue to be utilized. It is undeniable that
petitioners, as taxpayers, are bound to suffer from the unconstitutional usage of public funds, if the
Court so rules. Invariably, taxpayers have been allowed to sue where there is a claim that public
funds are illegally disbursed or that public money is being deflected to any improper purpose, or that
public funds are wasted through the enforcement of an invalid or unconstitutional law, as in these
cases.
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Moreover, as citizens, petitioners have equally fulfilled the standing requirement given that the
issues they have raised may be classified as matters "of transcendental importance, of overreaching
significance to society, or of paramount public interest." The CoA Chairpersons statement during
the Oral Arguments that the present controversy involves "not merely a systems failure" but a
"complete breakdown of controls" amplifies, in addition to the matters above-discussed, the
seriousness of the issues involved herein. Indeed, of greater import than the damage caused by the
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illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the
enforcement of an invalid statute. All told, petitioners have sufficient locus standi to file the instant
cases.
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D. Res Judicata and Stare Decisis.

Res judicata (which means a "matter adjudged") and stare decisis non quieta et movere (or simply,
stare decisis which means "follow past precedents and do not disturb what has been settled") are
general procedural law principles which both deal with the effects of previous but factually similar
dispositions to subsequent cases. For the cases at bar, the Court examines the applicability of these
principles in relation to its prior rulings in Philconsa and LAMP.
The focal point of res judicata is the judgment. The principle states that a judgment on the merits in a
previous case rendered by a court of competent jurisdiction would bind a subsequent case if,
between the first and second actions, there exists an identity of parties, of subject matter, and of
causes of action. This required identity is not, however, attendant hereto since Philconsa and
LAMP, respectively involved constitutional challenges against the 1994 CDF Article and 2004 PDAF
Article, whereas the cases at bar call for a broader constitutional scrutiny of the entire "Pork Barrel
System." Also, the ruling in LAMP is essentially a dismissal based on a procedural technicality and,
thus, hardly a judgment on the merits in that petitioners therein failed to present any "convincing
proof x x x showing that, indeed, there were direct releases of funds to the Members of Congress,
who actually spend them according to their sole discretion" or "pertinent evidentiary support to
demonstrate the illegal misuse of PDAF in the form of kickbacks and has become a common
exercise of unscrupulous Members of Congress." As such, the Court up held, in view of the
presumption of constitutionality accorded to every law, the 2004 PDAF Article, and saw "no need to
review or reverse the standing pronouncements in the said case." Hence, for the foregoing reasons,
the res judicata principle, insofar as the Philconsa and LAMP cases are concerned, cannot apply.
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On the other hand, the focal point of stare decisis is the doctrine created. The principle, entrenched
under Article 8 of the Civil Code, evokes the general rule that, for the sake of certainty, a conclusion
reached in one case should be doctrinally applied to those that follow if the facts are substantially the
same, even though the parties may be different. It proceeds from the first principle of justice that,
absent any powerful countervailing considerations, like cases ought to be decided alike. Thus, where
the same questions relating to the same event have been put forward by the parties similarly
situated as in a previous case litigated and decided by a competent court, the rule of stare decisis is
a bar to any attempt to re-litigate the same issue.
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Philconsa was the first case where a constitutional challenge against a Pork Barrel provision, i.e.,
the 1994 CDF Article, was resolved by the Court. To properly understand its context, petitioners
posturing was that "the power given to the Members of Congress to propose and identify projects
and activities to be funded by the CDF is an encroachment by the legislature on executive power,
since said power in an appropriation act is in implementation of the law" and that "the proposal and
identification of the projects do not involve the making of laws or the repeal and amendment thereof,
the only function given to the Congress by the Constitution." In deference to the foregoing
submissions, the Court reached the following main conclusions: one, under the Constitution, the
power of appropriation, or the "power of the purse," belongs to Congress; two, the power of
appropriation carries with it the power to specify the project or activity to be funded under the
appropriation law and it can be detailed and as broad as Congress wants it to be; and, three, the
proposals and identifications made by Members of Congress are merely recommendatory. At once, it
is apparent that the Philconsa resolution was a limited response to a separation of powers problem,
specifically on the propriety of conferring post-enactment identification authority to Members of
Congress. On the contrary, the present cases call for a more holistic examination of (a) the inter154

relation between the CDF and PDAF Articles with each other, formative as they are of the entire
"Pork Barrel System" as well as (b) the intra-relation of post-enactment measures contained within a
particular CDF or PDAF Article, including not only those related to the area of project identification
but also to the areas of fund release and realignment. The complexity of the issues and the broader
legal analyses herein warranted may be, therefore, considered as a powerful countervailing reason
against a wholesale application of the stare decisis principle.
In addition, the Court observes that the Philconsa ruling was actually riddled with inherent
constitutional inconsistencies which similarly countervail against a full resort to stare decisis. As may
be deduced from the main conclusions of the case, Philconsas fundamental premise in allowing
Members of Congress to propose and identify of projects would be that the said identification
authority is but an aspect of the power of appropriation which has been constitutionally lodged in
Congress. From this premise, the contradictions may be easily seen. If the authority to identify
projects is an aspect of appropriation and the power of appropriation is a form of legislative power
thereby lodged in Congress, then it follows that: (a) it is Congress which should exercise such
authority, and not its individual Members; (b) such authority must be exercised within the prescribed
procedure of law passage and, hence, should not be exercised after the GAA has already been
passed; and (c) such authority, as embodied in the GAA, has the force of law and, hence, cannot be
merely recommendatory. Justice Vitugs Concurring Opinion in the same case sums up the
Philconsa quandary in this wise: "Neither would it be objectionable for Congress, by law, to
appropriate funds for such specific projects as it may be minded; to give that authority, however, to
the individual members of Congress in whatever guise, I am afraid, would be constitutionally
impermissible." As the Court now largely benefits from hindsight and current findings on the matter,
among others, the CoA Report, the Court must partially abandon its previous ruling in Philconsa
insofar as it validated the post-enactment identification authority of Members of Congress on the
guise that the same was merely recommendatory. This postulate raises serious constitutional
inconsistencies which cannot be simply excused on the ground that such mechanism is "imaginative
as it is innovative." Moreover, it must be pointed out that the recent case of Abakada Guro Party List
v. Purisima (Abakada) has effectively overturned Philconsas allowance of post-enactment
legislator participation in view of the separation of powers principle. These constitutional
inconsistencies and the Abakada rule will be discussed in greater detail in the ensuing section of this
Decision.
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As for LAMP, suffice it to restate that the said case was dismissed on a procedural technicality and,
hence, has not set any controlling doctrine susceptible of current application to the substantive
issues in these cases. In fine, stare decisis would not apply.
II. Substantive Issues.
A. Definition of Terms.
Before the Court proceeds to resolve the substantive issues of these cases, it must first define the
terms "Pork Barrel System," "Congressional Pork Barrel," and "Presidential Pork Barrel" as they are
essential to the ensuing discourse.
Petitioners define the term "Pork Barrel System" as the "collusion between the Legislative and
Executive branches of government to accumulate lump-sum public funds in their offices with
unchecked discretionary powers to determine its distribution as political largesse." They assert that
the following elements make up the Pork Barrel System: (a) lump-sum funds are allocated through
the appropriations process to an individual officer; (b) the officer is given sole and broad discretion in
determining how the funds will be used or expended; (c) the guidelines on how to spend or use the
funds in the appropriation are either vague, overbroad or inexistent; and (d) projects funded are
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intended to benefit a definite constituency in a particular part of the country and to help the political
careers of the disbursing official by yielding rich patronage benefits. They further state that the Pork
Barrel System is comprised of two (2) kinds of discretionary public funds: first, the Congressional (or
Legislative) Pork Barrel, currently known as the PDAF; and, second, the Presidential (or Executive)
Pork Barrel, specifically, the Malampaya Funds under PD 910 and the Presidential Social Fund
under PD 1869, as amended by PD 1993.
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Considering petitioners submission and in reference to its local concept and legal history, the Court
defines the Pork Barrel System as the collective body of rules and practices that govern the manner
by which lump-sum, discretionary funds, primarily intended for local projects, are utilized through the
respective participations of the Legislative and Executive branches of government, including its
members. The Pork Barrel System involves two (2) kinds of lump-sum discretionary funds:
First, there is the Congressional Pork Barrel which is herein defined as a kind of lump-sum,
discretionary fund wherein legislators, either individually or collectively organized into committees,
are able to effectively control certain aspects of the funds utilization through various post-enactment
measures and/or practices. In particular, petitioners consider the PDAF, as it appears under the 2013
GAA, as Congressional Pork Barrel since it is, inter alia, a post-enactment measure that allows
individual legislators to wield a collective power; and
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Second, there is the Presidential Pork Barrel which is herein defined as a kind of lump-sum,
discretionary fund which allows the President to determine the manner of its utilization. For reasons
earlier stated, the Court shall delimit the use of such term to refer only to the Malampaya Funds
and the Presidential Social Fund.
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With these definitions in mind, the Court shall now proceed to discuss the substantive issues of
these cases.
B. Substantive Issues on the Congressional Pork Barrel.
1. Separation of Powers.
a. Statement of Principle.
The principle of separation of powers refers to the constitutional demarcation of the three
fundamental powers of government. In the celebrated words of Justice Laurel in Angara v. Electoral
Commission, it means that the "Constitution has blocked out with deft strokes and in bold lines,
allotment of power to the executive, the legislative and the judicial departments of the
government." To the legislative branch of government, through Congress, belongs the power to
make laws; to the executive branch of government, through the President, belongs the power to
enforce laws; and to the judicial branch of government, through the Court, belongs the power to
interpret laws. Because the three great powers have been, by constitutional design, ordained in this
respect, "each department of the government has exclusive cognizance of matters within its
jurisdiction, and is supreme within its own sphere." Thus, "the legislature has no authority to
execute or construe the law, the executive has no authority to make or construe the law, and the
judiciary has no power to make or execute the law." The principle of separation of powers and its
concepts of autonomy and independence stem from the notion that the powers of government must
be divided to avoid concentration of these powers in any one branch; the division, it is hoped, would
avoid any single branch from lording its power over the other branches or the citizenry. To achieve
this purpose, the divided power must be wielded by co-equal branches of government that are
equally capable of independent action in exercising their respective mandates. Lack of
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independence would result in the inability of one branch of government to check the arbitrary or selfinterest assertions of another or others.
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Broadly speaking, there is a violation of the separation of powers principle when one branch of
government unduly encroaches on the domain of another. US Supreme Court decisions instruct that
the principle of separation of powers may be violated in two (2) ways: firstly, "one branch may
interfere impermissibly with the others performance of its constitutionally assigned function"; and
"alternatively, the doctrine may be violated when one branch assumes a function that more properly
is entrusted to another." In other words, there is a violation of the principle when there is
impermissible (a) interference with and/or (b) assumption of another departments functions.
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The enforcement of the national budget, as primarily contained in the GAA, is indisputably a function
both constitutionally assigned and properly entrusted to the Executive branch of government. In
Guingona, Jr. v. Hon. Carague (Guingona, Jr.), the Court explained that the phase of budget
execution "covers the various operational aspects of budgeting" and accordingly includes "the
evaluation of work and financial plans for individual activities," the "regulation and release of funds"
as well as all "other related activities" that comprise the budget execution cycle. This is rooted in
the principle that the allocation of power in the three principal branches of government is a grant of
all powers inherent in them. Thus, unless the Constitution provides otherwise, the Executive
department should exclusively exercise all roles and prerogatives which go into the implementation
of the national budget as provided under the GAA as well as any other appropriation law.
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In view of the foregoing, the Legislative branch of government, much more any of its members,
should not cross over the field of implementing the national budget since, as earlier stated, the same
is properly the domain of the Executive. Again, in Guingona, Jr., the Court stated that "Congress
enters the picture when it deliberates or acts on the budget proposals of the President. Thereafter,
Congress, "in the exercise of its own judgment and wisdom, formulates an appropriation act
precisely following the process established by the Constitution, which specifies that no money may
be paid from the Treasury except in accordance with an appropriation made by law." Upon approval
and passage of the GAA, Congress law -making role necessarily comes to an end and from there
the Executives role of implementing the national budget begins. So as not to blur the constitutional
boundaries between them, Congress must "not concern it self with details for implementation by the
Executive."
176

The foregoing cardinal postulates were definitively enunciated in Abakada where the Court held that
"from the moment the law becomes effective, any provision of law that empowers Congress or any
of its members to play any role in the implementation or enforcement of the law violates the principle
of separation of powers and is thus unconstitutional." It must be clarified, however, that since the
restriction only pertains to "any role in the implementation or enforcement of the law," Congress may
still exercise its oversight function which is a mechanism of checks and balances that the
Constitution itself allows. But it must be made clear that Congress role must be confined to mere
oversight. Any post-enactment-measure allowing legislator participation beyond oversight is bereft of
any constitutional basis and hence, tantamount to impermissible interference and/or assumption of
executive functions. As the Court ruled in Abakada:
177

178

Any post-enactment congressional measure x x x should be limited to scrutiny and investigation. In

particular, congressional oversight must be confined to the following:
1wphi1

(1) scrutiny based primarily on Congress power of appropriation and the budget hearings
conducted in connection with it, its power to ask heads of departments to appear before and
be heard by either of its Houses on any matter pertaining to their departments and its power
of confirmation; and

(2) investigation and monitoring of the implementation of laws pursuant to the power of
Congress to conduct inquiries in aid of legislation.
Any action or step beyond that will undermine the separation of powers guaranteed by the
Constitution. (Emphases supplied)
b. Application.
In these cases, petitioners submit that the Congressional Pork Barrel among others, the 2013
PDAF Article "wrecks the assignment of responsibilities between the political branches" as it is
designed to allow individual legislators to interfere "way past the time it should have ceased" or,
particularly, "after the GAA is passed." They state that the findings and recommendations in the CoA
Report provide "an illustration of how absolute and definitive the power of legislators wield over
project implementation in complete violation of the constitutional principle of separation of
powers." Further, they point out that the Court in the Philconsa case only allowed the CDF to exist
on the condition that individual legislators limited their role to recommending projects and not if they
actually dictate their implementation.
179

180

181

For their part, respondents counter that the separations of powers principle has not been violated
since the President maintains "ultimate authority to control the execution of the GAA and that he
"retains the final discretion to reject" the legislators proposals. They maintain that the Court, in
Philconsa, "upheld the constitutionality of the power of members of Congress to propose and identify
projects so long as such proposal and identification are recommendatory." As such, they claim that
"everything in the Special Provisions [of the 2013 PDAF Article follows the Philconsa framework, and
hence, remains constitutional."
182

183

184

The Court rules in favor of petitioners.

As may be observed from its legal history, the defining feature of all forms of Congressional Pork
Barrel would be the authority of legislators to participate in the post-enactment phases of project
implementation.
At its core, legislators may it be through project lists, prior consultations or program menus
have been consistently accorded post-enactment authority to identify the projects they desire to be
funded through various Congressional Pork Barrel allocations. Under the 2013 PDAF Article, the
statutory authority of legislators to identify projects post-GAA may be construed from the import of
Special Provisions 1 to 3 as well as the second paragraph of Special Provision 4. To elucidate,
Special Provision 1 embodies the program menu feature which, as evinced from past PDAF Articles,
allows individual legislators to identify PDAF projects for as long as the identified project falls under a
general program listed in the said menu. Relatedly, Special Provision 2 provides that the
implementing agencies shall, within 90 days from the GAA is passed, submit to Congress a more
detailed priority list, standard or design prepared and submitted by implementing agencies from
which the legislator may make his choice. The same provision further authorizes legislators to
identify PDAF projects outside his district for as long as the representative of the district concerned
concurs in writing. Meanwhile, Special Provision 3 clarifies that PDAF projects refer to "projects to be
identified by legislators" and thereunder provides the allocation limit for the total amount of projects
identified by each legislator. Finally, paragraph 2 of Special Provision 4 requires that any
modification and revision of the project identification "shall be submitted to the House Committee on
Appropriations and the Senate Committee on Finance for favorable endorsement to the DBM or the
implementing agency, as the case may be." From the foregoing special provisions, it cannot be
seriously doubted that legislators have been accorded post-enactment authority to identify PDAF
projects.
185

188

186

187

Aside from the area of project identification, legislators have also been accorded post-enactment
authority in the areas of fund release and realignment. Under the 2013 PDAF Article, the statutory
authority of legislators to participate in the area of fund release through congressional committees is
contained in Special Provision 5 which explicitly states that "all request for release of funds shall be
supported by the documents prescribed under Special Provision No. 1 and favorably endorsed by
House Committee on Appropriations and the Senate Committee on Finance, as the case may be";
while their statutory authority to participate in the area of fund realignment is contained in: first ,
paragraph 2, Special Provision 4 which explicitly state s, among others, that "any realignment of
funds shall be submitted to the House Committee on Appropriations and the Senate Committee on
Finance for favorable endorsement to the DBM or the implementing agency, as the case may be ;
and, second , paragraph 1, also of Special Provision 4 which authorizes the "Secretaries of
Agriculture, Education, Energy, Interior and Local Government, Labor and Employment, Public
Works and Highways, Social Welfare and Development and Trade and Industry x x x to approve
realignment from one project/scope to another within the allotment received from this Fund, subject
to among others (iii) the request is with the concurrence of the legislator concerned."
189

190

Clearly, these post-enactment measures which govern the areas of project identification, fund
release and fund realignment are not related to functions of congressional oversight and, hence,
allow legislators to intervene and/or assume duties that properly belong to the sphere of budget
execution. Indeed, by virtue of the foregoing, legislators have been, in one form or another,
authorized to participate in as Guingona, Jr. puts it "the various operational aspects of
budgeting," including "the evaluation of work and financial plans for individual activities" and the
"regulation and release of funds" in violation of the separation of powers principle. The fundamental
rule, as categorically articulated in Abakada, cannot be overstated from the moment the law
becomes effective, any provision of law that empowers Congress or any of its members to play any
role in the implementation or enforcement of the law violates the principle of separation of powers
and is thus unconstitutional. That the said authority is treated as merely recommendatory in nature
does not alter its unconstitutional tenor since the prohibition, to repeat, covers any role in the
implementation or enforcement of the law. Towards this end, the Court must therefore abandon its
ruling in Philconsa which sanctioned the conduct of legislator identification on the guise that the
same is merely recommendatory and, as such, respondents reliance on the same falters altogether.
191

Besides, it must be pointed out that respondents have nonetheless failed to substantiate their
position that the identification authority of legislators is only of recommendatory import. Quite the
contrary, respondents through the statements of the Solicitor General during the Oral Arguments
have admitted that the identification of the legislator constitutes a mandatory requirement before his
PDAF can be tapped as a funding source, thereby highlighting the indispensability of the said act to
the entire budget execution process:
192

Justice Bernabe: Now, without the individual legislators identification of the project, can the PDAF of
the legislator be utilized?
Solicitor General Jardeleza: No, Your Honor.
Justice Bernabe: It cannot?
Solicitor General Jardeleza: It cannot (interrupted)
Justice Bernabe: So meaning you should have the identification of the project by the individual
legislator?
Solicitor General Jardeleza: Yes, Your Honor.

xxxx
Justice Bernabe: In short, the act of identification is mandatory?
Solictor General Jardeleza: Yes, Your Honor. In the sense that if it is not done and then there is no
identification.
xxxx
Justice Bernabe: Now, would you know of specific instances when a project was implemented
without the identification by the individual legislator?
Solicitor General Jardeleza: I do not know, Your Honor; I do not think so but I have no specific
examples. I would doubt very much, Your Honor, because to implement, there is a need for a SARO
and the NCA. And the SARO and the NCA are triggered by an identification from the legislator.
xxxx
Solictor General Jardeleza: What we mean by mandatory, Your Honor, is we were replying to a
question, "How can a legislator make sure that he is able to get PDAF Funds?" It is mandatory in the
sense that he must identify, in that sense, Your Honor. Otherwise, if he does not identify, he cannot
avail of the PDAF Funds and his district would not be able to have PDAF Funds, only in that sense,
Your Honor. (Emphases supplied)
Thus, for all the foregoing reasons, the Court hereby declares the 2013 PDAF Article as well as all
other provisions of law which similarly allow legislators to wield any form of post-enactment authority
in the implementation or enforcement of the budget, unrelated to congressional oversight, as
violative of the separation of powers principle and thus unconstitutional. Corollary thereto, informal
practices, through which legislators have effectively intruded into the proper phases of budget
execution, must be deemed as acts of grave abuse of discretion amounting to lack or excess of
jurisdiction and, hence, accorded the same unconstitutional treatment. That such informal practices
do exist and have, in fact, been constantly observed throughout the years has not been substantially
disputed here. As pointed out by Chief Justice Maria Lourdes P.A. Sereno (Chief Justice Sereno)
during the Oral Arguments of these cases:
Chief Justice Sereno:
193

Now, from the responses of the representative of both, the DBM and two (2) Houses of Congress, if
we enforces the initial thought that I have, after I had seen the extent of this research made by my
staff, that neither the Executive nor Congress frontally faced the question of constitutional
compatibility of how they were engineering the budget process. In fact, the words you have been
using, as the three lawyers of the DBM, and both Houses of Congress has also been using is
surprise; surprised that all of these things are now surfacing. In fact, I thought that what the 2013
PDAF provisions did was to codify in one section all the past practice that had been done since
1991. In a certain sense, we should be thankful that they are all now in the PDAF Special Provisions.
x x x (Emphasis and underscoring supplied)
Ultimately, legislators cannot exercise powers which they do not have, whether through formal
measures written into the law or informal practices institutionalized in government agencies, else the
Executive department be deprived of what the Constitution has vested as its own.
2. Non-delegability of Legislative Power.

a. Statement of Principle.
As an adjunct to the separation of powers principle, legislative power shall be exclusively exercised
by the body to which the Constitution has conferred the same. In particular, Section 1, Article VI of
the 1987 Constitution states that such power shall be vested in the Congress of the Philippines
which shall consist of a Senate and a House of Representatives, except to the extent reserved to the
people by the provision on initiative and referendum. Based on this provision, it is clear that only
Congress, acting as a bicameral body, and the people, through the process of initiative and
referendum, may constitutionally wield legislative power and no other. This premise embodies the
principle of non-delegability of legislative power, and the only recognized exceptions thereto would
be: (a) delegated legislative power to local governments which, by immemorial practice, are allowed
to legislate on purely local matters; and (b) constitutionally-grafted exceptions such as the authority
of the President to, by law, exercise powers necessary and proper to carry out a declared national
policy in times of war or other national emergency, or fix within specified limits, and subject to such
limitations and restrictions as Congress may impose, tariff rates, import and export quotas, tonnage
and wharfage dues, and other duties or imposts within the framework of the national development
program of the Government.
194

195

196

197

198

Notably, the principle of non-delegability should not be confused as a restriction to delegate rulemaking authority to implementing agencies for the limited purpose of either filling up the details of
the law for its enforcement (supplementary rule-making) or ascertaining facts to bring the law into
actual operation (contingent rule-making). The conceptual treatment and limitations of delegated
rule-making were explained in the case of People v. Maceren as follows:
199

200

The grant of the rule-making power to administrative agencies is a relaxation of the principle of
separation of powers and is an exception to the nondelegation of legislative powers. Administrative
regulations or "subordinate legislation" calculated to promote the public interest are necessary
because of "the growing complexity of modern life, the multiplication of the subjects of governmental
regulations, and the increased difficulty of administering the law."
xxxx
Nevertheless, it must be emphasized that the rule-making power must be confined to details for
regulating the mode or proceeding to carry into effect the law as it has been enacted. The power
cannot be extended to amending or expanding the statutory requirements or to embrace matters not
covered by the statute. Rules that subvert the statute cannot be sanctioned. (Emphases supplied)
b. Application.
In the cases at bar, the Court observes that the 2013 PDAF Article, insofar as it confers postenactment identification authority to individual legislators, violates the principle of non-delegability
since said legislators are effectively allowed to individually exercise the power of appropriation,
which as settled in Philconsa is lodged in Congress. That the power to appropriate must be
exercised only through legislation is clear from Section 29(1), Article VI of the 1987 Constitution
which states that: "No money shall be paid out of the Treasury except in pursuance of an
appropriation made by law." To understand what constitutes an act of appropriation, the Court, in
Bengzon v. Secretary of Justice and Insular Auditor (Bengzon), held that the power of appropriation
involves (a) the setting apart by law of a certain sum from the public revenue for (b) a specified
purpose. Essentially, under the 2013 PDAF Article, individual legislators are given a personal lumpsum fund from which they are able to dictate (a) how much from such fund would go to (b) a specific
project or beneficiary that they themselves also determine. As these two (2) acts comprise the
exercise of the power of appropriation as described in Bengzon, and given that the 2013 PDAF
201

202

Article authorizes individual legislators to perform the same, undoubtedly, said legislators have been
conferred the power to legislate which the Constitution does not, however, allow. Thus, keeping with
the principle of non-delegability of legislative power, the Court hereby declares the 2013 PDAF
Article, as well as all other forms of Congressional Pork Barrel which contain the similar legislative
identification feature as herein discussed, as unconstitutional.
3. Checks and Balances.
a. Statement of Principle; Item-Veto Power.
The fact that the three great powers of government are intended to be kept separate and distinct
does not mean that they are absolutely unrestrained and independent of each other. The
Constitution has also provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government.
203

A prime example of a constitutional check and balance would be the Presidents power to veto an
item written into an appropriation, revenue or tariff bill submitted to him by Congress for approval
through a process known as "bill presentment." The Presidents item-veto power is found in Section
27(2), Article VI of the 1987 Constitution which reads as follows:
Sec. 27. x x x.
xxxx
(2) The President shall have the power to veto any particular item or items in an appropriation,
revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object.
The presentment of appropriation, revenue or tariff bills to the President, wherein he may exercise
his power of item-veto, forms part of the "single, finely wrought and exhaustively considered,
procedures" for law-passage as specified under the Constitution. As stated in Abakada, the final
step in the law-making process is the "submission of the bill to the President for approval. Once
approved, it takes effect as law after the required publication."
204

205

Elaborating on the Presidents item-veto power and its relevance as a check on the legislature, the
Court, in Bengzon, explained that:
206

The former Organic Act and the present Constitution of the Philippines make the Chief Executive an
integral part of the law-making power. His disapproval of a bill, commonly known as a veto, is
essentially a legislative act. The questions presented to the mind of the Chief Executive are precisely
the same as those the legislature must determine in passing a bill, except that his will be a broader
point of view.
The Constitution is a limitation upon the power of the legislative department of the government, but
in this respect it is a grant of power to the executive department. The Legislature has the affirmative
power to enact laws; the Chief Executive has the negative power by the constitutional exercise of
which he may defeat the will of the Legislature. It follows that the Chief Executive must find his
authority in the Constitution. But in exercising that authority he may not be confined to rules of strict
construction or hampered by the unwise interference of the judiciary. The courts will indulge every
intendment in favor of the constitutionality of a veto in the same manner as they will presume the
constitutionality of an act as originally passed by the Legislature. (Emphases supplied)

The justification for the Presidents item-veto power rests on a variety of policy goals such as to
prevent log-rolling legislation, impose fiscal restrictions on the legislature, as well as to fortify the
executive branchs role in the budgetary process. In Immigration and Naturalization Service v.
Chadha, the US Supreme Court characterized the Presidents item-power as "a salutary check upon
the legislative body, calculated to guard the community against the effects of factions, precipitancy,
or of any impulse unfriendly to the public good, which may happen to influence a majority of that
body"; phrased differently, it is meant to "increase the chances in favor of the community against the
passing of bad laws, through haste, inadvertence, or design."
207

208

209

For the President to exercise his item-veto power, it necessarily follows that there exists a proper
"item" which may be the object of the veto. An item, as defined in the field of appropriations, pertains
to "the particulars, the details, the distinct and severable parts of the appropriation or of the bill." In
the case of Bengzon v. Secretary of Justice of the Philippine Islands, the US Supreme Court
characterized an item of appropriation as follows:
210

An item of an appropriation bill obviously means an item which, in itself, is a specific appropriation of
money, not some general provision of law which happens to be put into an appropriation bill.
(Emphases supplied)
On this premise, it may be concluded that an appropriation bill, to ensure that the President may be
able to exercise his power of item veto, must contain "specific appropriations of money" and not only
"general provisions" which provide for parameters of appropriation.
Further, it is significant to point out that an item of appropriation must be an item characterized by
singular correspondence meaning an allocation of a specified singular amount for a specified
singular purpose, otherwise known as a "line-item." This treatment not only allows the item to be
consistent with its definition as a "specific appropriation of money" but also ensures that the
President may discernibly veto the same. Based on the foregoing formulation, the existing Calamity
Fund, Contingent Fund and the Intelligence Fund, being appropriations which state a specified
amount for a specific purpose, would then be considered as "line- item" appropriations which are
rightfully subject to item veto. Likewise, it must be observed that an appropriation may be validly
apportioned into component percentages or values; however, it is crucial that each percentage or
value must be allocated for its own corresponding purpose for such component to be considered as
a proper line-item. Moreover, as Justice Carpio correctly pointed out, a valid appropriation may even
have several related purposes that are by accounting and budgeting practice considered as one
purpose, e.g., MOOE (maintenance and other operating expenses), in which case the related
purposes shall be deemed sufficiently specific for the exercise of the Presidents item veto power.
Finally, special purpose funds and discretionary funds would equally square with the constitutional
mechanism of item-veto for as long as they follow the rule on singular correspondence as herein
discussed. Anent special purpose funds, it must be added that Section 25(4), Article VI of the 1987
Constitution requires that the "special appropriations bill shall specify the purpose for which it is
intended, and shall be supported by funds actually available as certified by the National Treasurer, or
t o be raised by a corresponding revenue proposal therein." Meanwhile, with respect to discretionary
funds, Section 2 5(6), Article VI of the 1987 Constitution requires that said funds "shall be disbursed
only for public purposes to be supported by appropriate vouchers and subject to such guidelines as
may be prescribed by law."
211

In contrast, what beckons constitutional infirmity are appropriations which merely provide for a
singular lump-sum amount to be tapped as a source of funding for multiple purposes. Since such
appropriation type necessitates the further determination of both the actual amount to be expended
and the actual purpose of the appropriation which must still be chosen from the multiple purposes
stated in the law, it cannot be said that the appropriation law already indicates a "specific

appropriation of money and hence, without a proper line-item which the President may veto. As a
practical result, the President would then be faced with the predicament of either vetoing the entire
appropriation if he finds some of its purposes wasteful or undesirable, or approving the entire
appropriation so as not to hinder some of its legitimate purposes. Finally, it may not be amiss to state
that such arrangement also raises non-delegability issues considering that the implementing
authority would still have to determine, again, both the actual amount to be expended and the actual
purpose of the appropriation. Since the foregoing determinations constitute the integral aspects of
the power to appropriate, the implementing authority would, in effect, be exercising legislative
prerogatives in violation of the principle of non-delegability.
b. Application.
In these cases, petitioners claim that "in the current x x x system where the PDAF is a lump-sum
appropriation, the legislators identification of the projects after the passage of the GAA denies the
President the chance to veto that item later on." Accordingly, they submit that the "item veto power
of the President mandates that appropriations bills adopt line-item budgeting" and that "Congress
cannot choose a mode of budgeting which effectively renders the constitutionally-given power of the
President useless."
212

213

On the other hand, respondents maintain that the text of the Constitution envisions a process which
is intended to meet the demands of a modernizing economy and, as such, lump-sum appropriations
are essential to financially address situations which are barely foreseen when a GAA is enacted.
They argue that the decision of the Congress to create some lump-sum appropriations is
constitutionally allowed and textually-grounded.
214

The Court agrees with petitioners.

Under the 2013 PDAF Article, the amount of P24.79 Billion only appears as a collective allocation
limit since the said amount would be further divided among individual legislators who would then
receive personal lump-sum allocations and could, after the GAA is passed, effectively appropriate
PDAF funds based on their own discretion. As these intermediate appropriations are made by
legislators only after the GAA is passed and hence, outside of the law, it necessarily means that the
actual items of PDAF appropriation would not have been written into the General Appropriations Bill
and thus effectuated without veto consideration. This kind of lump-sum/post-enactment legislative
identification budgeting system fosters the creation of a budget within a budget" which subverts the
prescribed procedure of presentment and consequently impairs the Presidents power of item veto.
As petitioners aptly point out, the above-described system forces the President to decide between
(a) accepting the entire P24.79 Billion PDAF allocation without knowing the specific projects of the
legislators, which may or may not be consistent with his national agenda and (b) rejecting the whole
PDAF to the detriment of all other legislators with legitimate projects.
215

Moreover, even without its post-enactment legislative identification feature, the 2013 PDAF Article
would remain constitutionally flawed since it would then operate as a prohibited form of lump-sum
appropriation above-characterized. In particular, the lump-sum amount of P24.79 Billion would be
treated as a mere funding source allotted for multiple purposes of spending, i.e., scholarships,
medical missions, assistance to indigents, preservation of historical materials, construction of roads,
flood control, etc. This setup connotes that the appropriation law leaves the actual amounts and
purposes of the appropriation for further determination and, therefore, does not readily indicate a
discernible item which may be subject to the Presidents power of item veto.
In fact, on the accountability side, the same lump-sum budgeting scheme has, as the CoA
Chairperson relays, "limited state auditors from obtaining relevant data and information that would

aid in more stringently auditing the utilization of said Funds." Accordingly, she recommends the
adoption of a "line by line budget or amount per proposed program, activity or project, and per
implementing agency."
216

217

Hence, in view of the reasons above-stated, the Court finds the 2013 PDAF Article, as well as all
Congressional Pork Barrel Laws of similar operation, to be unconstitutional. That such budgeting
system provides for a greater degree of flexibility to account for future contingencies cannot be an
excuse to defeat what the Constitution requires. Clearly, the first and essential truth of the matter is
that unconstitutional means do not justify even commendable ends.
218

c. Accountability.
Petitioners further relate that the system under which various forms of Congressional Pork Barrel
operate defies public accountability as it renders Congress incapable of checking itself or its
Members. In particular, they point out that the Congressional Pork Barrel "gives each legislator a
direct, financial interest in the smooth, speedy passing of the yearly budget" which turns them "from
fiscalizers" into "financially-interested partners." They also claim that the system has an effect on
re- election as "the PDAF excels in self-perpetuation of elective officials." Finally, they add that the
"PDAF impairs the power of impeachment" as such "funds are indeed quite useful, to well,
accelerate the decisions of senators."
219

220

The Court agrees in part.

The aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that "public
office is a public trust," is an overarching reminder that every instrumentality of government should
exercise their official functions only in accordance with the principles of the Constitution which
embodies the parameters of the peoples trust. The notion of a public trust connotes
accountability, hence, the various mechanisms in the Constitution which are designed to exact
accountability from public officers.
221

Among others, an accountability mechanism with which the proper expenditure of public funds may
be checked is the power of congressional oversight. As mentioned in Abakada, congressional
oversight may be performed either through: (a) scrutiny based primarily on Congress power of
appropriation and the budget hearings conducted in connection with it, its power to ask heads of
departments to appear before and be heard by either of its Houses on any matter pertaining to their
departments and its power of confirmation; or (b) investigation and monitoring of the
implementation of laws pursuant to the power of Congress to conduct inquiries in aid of legislation.
222

223

224

The Court agrees with petitioners that certain features embedded in some forms of Congressional
Pork Barrel, among others the 2013 PDAF Article, has an effect on congressional oversight. The fact
that individual legislators are given post-enactment roles in the implementation of the budget makes
it difficult for them to become disinterested "observers" when scrutinizing, investigating or monitoring
the implementation of the appropriation law. To a certain extent, the conduct of oversight would be
tainted as said legislators, who are vested with post-enactment authority, would, in effect, be
checking on activities in which they themselves participate. Also, it must be pointed out that this very
same concept of post-enactment authorization runs afoul of Section 14, Article VI of the 1987
Constitution which provides that:
Sec. 14. No Senator or Member of the House of Representatives may personally appear as counsel
before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative
bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or in any
franchise or special privilege granted by the Government, or any subdivision, agency, or

instrumentality thereof, including any government-owned or controlled corporation, or its subsidiary,

during his term of office. He shall not intervene in any matter before any office of the Government for
his pecuniary benefit or where he may be called upon to act on account of his office. (Emphasis
supplied)
Clearly, allowing legislators to intervene in the various phases of project implementation a matter
before another office of government renders them susceptible to taking undue advantage of their
own office.
The Court, however, cannot completely agree that the same post-enactment authority and/or the
individual legislators control of his PDAF per se would allow him to perpetuate himself in office.
Indeed, while the Congressional Pork Barrel and a legislators use thereof may be linked to this area
of interest, the use of his PDAF for re-election purposes is a matter which must be analyzed based
on particular facts and on a case-to-case basis.
Finally, while the Court accounts for the possibility that the close operational proximity between
legislators and the Executive department, through the formers post-enactment participation, may
affect the process of impeachment, this matter largely borders on the domain of politics and does not
strictly concern the Pork Barrel Systems intrinsic constitutionality. As such, it is an improper subject
of judicial assessment.
In sum, insofar as its post-enactment features dilute congressional oversight and violate Section 14,
Article VI of the 1987 Constitution, thus impairing public accountability, the 2013 PDAF Article and
other forms of Congressional Pork Barrel of similar nature are deemed as unconstitutional.
4. Political Dynasties.
One of the petitioners submits that the Pork Barrel System enables politicians who are members of
political dynasties to accumulate funds to perpetuate themselves in power, in contravention of
Section 26, Article II of the 1987 Constitution which states that:
225

Sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit
political dynasties as may be defined by law. (Emphasis and underscoring supplied)
At the outset, suffice it to state that the foregoing provision is considered as not self-executing due to
the qualifying phrase "as may be defined by law." In this respect, said provision does not, by and of
itself, provide a judicially enforceable constitutional right but merely specifies guideline for legislative
or executive action. Therefore, since there appears to be no standing law which crystallizes the
policy on political dynasties for enforcement, the Court must defer from ruling on this issue.
226

In any event, the Court finds the above-stated argument on this score to be largely speculative since
it has not been properly demonstrated how the Pork Barrel System would be able to propagate
political dynasties.
5. Local Autonomy.
The States policy on local autonomy is principally stated in Section 25, Article II and Sections 2 and
3, Article X of the 1987 Constitution which read as follows:
ARTICLE II

Sec. 25. The State shall ensure the autonomy of local governments.
ARTICLE X
Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.
Sec. 3. The Congress shall enact a local government code which shall provide for a more
responsive and accountable local government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the
different local government units their powers, responsibilities, and resources, and provide for the
qualifications, election, appointment and removal, term, salaries, powers and functions and duties of
local officials, and all other matters relating to the organization and operation of the local units.
Pursuant thereto, Congress enacted RA 7160, otherwise known as the "Local Government Code of
1991" (LGC), wherein the policy on local autonomy had been more specifically explicated as follows:
227

Sec. 2. Declaration of Policy. (a) It is hereby declared the policy of the State that the territorial and
political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them
to attain their fullest development as self-reliant communities and make them more effective partners
in the attainment of national goals. Toward this end, the State shall provide for a more responsive
and accountable local government structure instituted through a system of decentralization whereby
local government units shall be given more powers, authority, responsibilities, and resources. The
process of decentralization shall proceed from the National Government to the local government
units.
xxxx
(c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic
consultations with appropriate local government units, nongovernmental and peoples organizations,
and other concerned sectors of the community before any project or program is implemented in their
respective jurisdictions. (Emphases and underscoring supplied)
The above-quoted provisions of the Constitution and the LGC reveal the policy of the State to
empower local government units (LGUs) to develop and ultimately, become self-sustaining and
effective contributors to the national economy. As explained by the Court in Philippine Gamefowl
Commission v. Intermediate Appellate Court:
228

This is as good an occasion as any to stress the commitment of the Constitution to the policy of local
autonomy which is intended to provide the needed impetus and encouragement to the development
of our local political subdivisions as "self - reliant communities." In the words of Jefferson, "Municipal
corporations are the small republics from which the great one derives its strength." The vitalization of
local governments will enable their inhabitants to fully exploit their resources and more important,
imbue them with a deepened sense of involvement in public affairs as members of the body politic.
This objective could be blunted by undue interference by the national government in purely local
affairs which are best resolved by the officials and inhabitants of such political units. The decision we
reach today conforms not only to the letter of the pertinent laws but also to the spirit of the
Constitution. (Emphases and underscoring supplied)
229

In the cases at bar, petitioners contend that the Congressional Pork Barrel goes against the
constitutional principles on local autonomy since it allows district representatives, who are national

officers, to substitute their judgments in utilizing public funds for local development. The Court
agrees with petitioners.
230

Philconsa described the 1994 CDF as an attempt "to make equal the unequal" and that "it is also a
recognition that individual members of Congress, far more than the President and their
congressional colleagues, are likely to be knowledgeable about the needs of their respective
constituents and the priority to be given each project." Drawing strength from this pronouncement,
previous legislators justified its existence by stating that "the relatively small projects implemented
under the Congressional Pork Barrel complement and link the national development goals to the
countryside and grassroots as well as to depressed areas which are overlooked by central agencies
which are preoccupied with mega-projects. Similarly, in his August 23, 2013 speech on the
"abolition" of PDAF and budgetary reforms, President Aquino mentioned that the Congressional Pork
Barrel was originally established for a worthy goal, which is to enable the representatives to identify
projects for communities that the LGU concerned cannot afford.
231

232

233

Notwithstanding these declarations, the Court, however, finds an inherent defect in the system which
actually belies the avowed intention of "making equal the unequal." In particular, the Court observes
that the gauge of PDAF and CDF allocation/division is based solely on the fact of office, without
taking into account the specific interests and peculiarities of the district the legislator represents. In
this regard, the allocation/division limits are clearly not based on genuine parameters of equality,
wherein economic or geographic indicators have been taken into consideration. As a result, a district
representative of a highly-urbanized metropolis gets the same amount of funding as a district
representative of a far-flung rural province which would be relatively "underdeveloped" compared to
the former. To add, what rouses graver scrutiny is that even Senators and Party-List Representatives
and in some years, even the Vice-President who do not represent any locality, receive funding
from the Congressional Pork Barrel as well. These certainly are anathema to the Congressional Pork
Barrels original intent which is "to make equal the unequal." Ultimately, the PDAF and CDF had
become personal funds under the effective control of each legislator and given unto them on the sole
account of their office.
The Court also observes that this concept of legislator control underlying the CDF and PDAF
conflicts with the functions of the various Local Development Councils (LDCs) which are already
legally mandated to "assist the corresponding sanggunian in setting the direction of economic and
social development, and coordinating development efforts within its territorial
jurisdiction." Considering that LDCs are instrumentalities whose functions are essentially geared
towards managing local affairs, their programs, policies and resolutions should not be overridden
nor duplicated by individual legislators, who are national officers that have no law-making authority
except only when acting as a body. The undermining effect on local autonomy caused by the postenactment authority conferred to the latter was succinctly put by petitioners in the following wise:
234

235

236

With PDAF, a Congressman can simply bypass the local development council and initiate projects
on his own, and even take sole credit for its execution. Indeed, this type of personality-driven project
identification has not only contributed little to the overall development of the district, but has even
contributed to "further weakening infrastructure planning and coordination efforts of the government."
Thus, insofar as individual legislators are authorized to intervene in purely local matters and thereby
subvert genuine local autonomy, the 2013 PDAF Article as well as all other similar forms of
Congressional Pork Barrel is deemed unconstitutional.
With this final issue on the Congressional Pork Barrel resolved, the Court now turns to the
substantive issues involving the Presidential Pork Barrel.

C. Substantive Issues on the Presidential Pork Barrel.

1. Validity of Appropriation.
Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of PD1869 (now, amended by PD
1993), which respectively provide for the Malampaya Funds and the Presidential Social Fund, as
invalid appropriations laws since they do not have the "primary and specific" purpose of authorizing
the release of public funds from the National Treasury. Petitioners submit that Section 8 of PD 910 is
not an appropriation law since the "primary and specific purpose of PD 910 is the creation of an
Energy Development Board and Section 8 thereof only created a Special Fund incidental
thereto. In similar regard, petitioners argue that Section 12 of PD 1869 is neither a valid
appropriations law since the allocation of the Presidential Social Fund is merely incidental to the
"primary and specific" purpose of PD 1869 which is the amendment of the Franchise and Powers of
PAGCOR. In view of the foregoing, petitioners suppose that such funds are being used without any
valid law allowing for their proper appropriation in violation of Section 29(1), Article VI of the 1987
Constitution which states that: "No money shall be paid out of the Treasury except in pursuance of
an appropriation made by law."
237

238

239

The Court disagrees.

"An appropriation made by law under the contemplation of Section 29(1), Article VI of the 1987
Constitution exists when a provision of law (a) sets apart a determinate or determinable amount of
money and (b) allocates the same for a particular public purpose. These two minimum designations
of amount and purpose stem from the very definition of the word "appropriation," which means "to
allot, assign, set apart or apply to a particular use or purpose," and hence, if written into the law,
demonstrate that the legislative intent to appropriate exists. As the Constitution "does not provide or
prescribe any particular form of words or religious recitals in which an authorization or appropriation
by Congress shall be made, except that it be made by law," an appropriation law may according
to Philconsa be "detailed and as broad as Congress wants it to be" for as long as the intent to
appropriate may be gleaned from the same. As held in the case of Guingona, Jr.:
240

241

There is no provision in our Constitution that provides or prescribes any particular form of words or
religious recitals in which an authorization or appropriation by Congress shall be made, except that it
be "made by law," such as precisely the authorization or appropriation under the questioned
presidential decrees. In other words, in terms of time horizons, an appropriation may be made
impliedly (as by past but subsisting legislations) as well as expressly for the current fiscal year (as by
enactment of laws by the present Congress), just as said appropriation may be made in general as
well as in specific terms. The Congressional authorization may be embodied in annual laws, such as
a general appropriations act or in special provisions of laws of general or special application which
appropriate public funds for specific public purposes, such as the questioned decrees. An
appropriation measure is sufficient if the legislative intention clearly and certainly appears from the
language employed (In re Continuing Appropriations, 32 P. 272), whether in the past or in the
present. (Emphases and underscoring supplied)
Likewise, as ruled by the US Supreme Court in State of Nevada v. La Grave:

242

To constitute an appropriation there must be money placed in a fund applicable to the designated
purpose. The word appropriate means to allot, assign, set apart or apply to a particular use or
purpose. An appropriation in the sense of the constitution means the setting apart a portion of the
public funds for a public purpose. No particular form of words is necessary for the purpose, if the
intention to appropriate is plainly manifested. (Emphases supplied)

Thus, based on the foregoing, the Court cannot sustain the argument that the appropriation must be
the "primary and specific" purpose of the law in order for a valid appropriation law to exist. To
reiterate, if a legal provision designates a determinate or determinable amount of money and
allocates the same for a particular public purpose, then the legislative intent to appropriate becomes
apparent and, hence, already sufficient to satisfy the requirement of an "appropriation made by law"
under contemplation of the Constitution.
Section 8 of PD 910 pertinently provides:
Section 8. Appropriations. x x x
All fees, revenues and receipts of the Board from any and all sources including receipts from service
contracts and agreements such as application and processing fees, signature bonus, discovery
bonus, production bonus; all money collected from concessionaires, representing unspent work
obligations, fines and penalties under the Petroleum Act of 1949; as well as the government share
representing royalties, rentals, production share on service contracts and similar payments on the
exploration, development and exploitation of energy resources, shall form part of a Special Fund to
be used to finance energy resource development and exploitation programs and projects of the
government and for such other purposes as may be hereafter directed by the President. (Emphases
supplied)
Whereas Section 12 of PD 1869, as amended by PD 1993, reads:
Sec. 12. Special Condition of Franchise. After deducting five (5%) percent as Franchise Tax, the
Fifty (50%) percent share of the Government in the aggregate gross earnings of the Corporation
from this Franchise, or 60% if the aggregate gross earnings be less than P150,000,000.00 shall be
set aside and shall accrue to the General Fund to finance the priority infrastructure development
projects and to finance the restoration of damaged or destroyed facilities due to calamities, as may
be directed and authorized by the Office of the President of the Philippines. (Emphases supplied)
Analyzing the legal text vis--vis the above-mentioned principles, it may then be concluded that (a)
Section 8 of PD 910, which creates a Special Fund comprised of "all fees, revenues, and receipts of
the Energy Development Board from any and all sources" (a determinable amount) "to be used to
finance energy resource development and exploitation programs and projects of the government and
for such other purposes as may be hereafter directed by the President" (a specified public purpose),
and (b) Section 12 of PD 1869, as amended by PD 1993, which similarly sets aside, "after deducting
five (5%) percent as Franchise Tax, the Fifty (50%) percent share of the Government in the
aggregate gross earnings of PAGCOR, or 60%, if the aggregate gross earnings be less
than P150,000,000.00" (also a determinable amount) "to finance the priority infrastructure
development projects and x x x the restoration of damaged or destroyed facilities due to calamities,
as may be directed and authorized by the Office of the President of the Philippines" (also a specified
public purpose), are legal appropriations under Section 29(1), Article VI of the 1987 Constitution.
In this relation, it is apropos to note that the 2013 PDAF Article cannot be properly deemed as a
legal appropriation under the said constitutional provision precisely because, as earlier stated, it
contains post-enactment measures which effectively create a system of intermediate appropriations.
These intermediate appropriations are the actual appropriations meant for enforcement and since
they are made by individual legislators after the GAA is passed, they occur outside the law. As such,
the Court observes that the real appropriation made under the 2013 PDAF Article is not the P24.79
Billion allocated for the entire PDAF, but rather the post-enactment determinations made by the
individual legislators which are, to repeat, occurrences outside of the law. Irrefragably, the 2013
PDAF Article does not constitute an "appropriation made by law" since it, in its truest sense, only

authorizes individual legislators to appropriate in violation of the non-delegability principle as aforediscussed.

2. Undue Delegation.
On a related matter, petitioners contend that Section 8 of PD 910 constitutes an undue delegation of
legislative power since the phrase "and for such other purposes as may be hereafter directed by the
President" gives the President "unbridled discretion to determine for what purpose the funds will be
used." Respondents, on the other hand, urged the Court to apply the principle of ejusdem generis
to the same section and thus, construe the phrase "and for such other purposes as may be hereafter
directed by the President" to refer only to other purposes related "to energy resource development
and exploitation programs and projects of the government."
243

244

The Court agrees with petitioners submissions.

While the designation of a determinate or determinable amount for a particular public purpose is
sufficient for a legal appropriation to exist, the appropriation law must contain adequate legislative
guidelines if the same law delegates rule-making authority to the Executive either for the purpose
of (a) filling up the details of the law for its enforcement, known as supplementary rule-making, or (b)
ascertaining facts to bring the law into actual operation, referred to as contingent rulemaking. There are two (2) fundamental tests to ensure that the legislative guidelines for delegated
rule-making are indeed adequate. The first test is called the "completeness test." Case law states
that a law is complete when it sets forth therein the policy to be executed, carried out, or
implemented by the delegate. On the other hand, the second test is called the "sufficient standard
test." Jurisprudence holds that a law lays down a sufficient standard when it provides adequate
guidelines or limitations in the law to map out the boundaries of the delegates authority and prevent
the delegation from running riot. To be sufficient, the standard must specify the limits of the
delegates authority, announce the legislative policy, and identify the conditions under which it is to
be implemented.
245

246

247

248

In view of the foregoing, the Court agrees with petitioners that the phrase "and for such other
purposes as may be hereafter directed by the President" under Section 8 of PD 910 constitutes an
undue delegation of legislative power insofar as it does not lay down a sufficient standard to
adequately determine the limits of the Presidents authority with respect to the purpose for which the
Malampaya Funds may be used. As it reads, the said phrase gives the President wide latitude to use
the Malampaya Funds for any other purpose he may direct and, in effect, allows him to unilaterally
appropriate public funds beyond the purview of the law. That the subject phrase may be confined
only to "energy resource development and exploitation programs and projects of the government"
under the principle of ejusdem generis, meaning that the general word or phrase is to be construed
to include or be restricted to things akin to, resembling, or of the same kind or class as those
specifically mentioned, is belied by three (3) reasons: first, the phrase "energy resource
development and exploitation programs and projects of the government" states a singular and
general class and hence, cannot be treated as a statutory reference of specific things from which the
general phrase "for such other purposes" may be limited; second, the said phrase also exhausts the
class it represents, namely energy development programs of the government; and, third, the
Executive department has, in fact, used the Malampaya Funds for non-energy related purposes
under the subject phrase, thereby contradicting respondents own position that it is limited only to
"energy resource development and exploitation programs and projects of the government." Thus,
while Section 8 of PD 910 may have passed the completeness test since the policy of energy
development is clearly deducible from its text, the phrase "and for such other purposes as may be
hereafter directed by the President" under the same provision of law should nonetheless be stricken
down as unconstitutional as it lies independently unfettered by any sufficient standard of the
249

250

251

delegating law. This notwithstanding, it must be underscored that the rest of Section 8, insofar as it
allows for the use of the Malampaya Funds "to finance energy resource development and
exploitation programs and projects of the government," remains legally effective and subsisting.
Truth be told, the declared unconstitutionality of the aforementioned phrase is but an assurance that
the Malampaya Funds would be used as it should be used only in accordance with the avowed
purpose and intention of PD 910.
As for the Presidential Social Fund, the Court takes judicial notice of the fact that Section 12 of PD
1869 has already been amended by PD 1993 which thus moots the parties submissions on the
same. Nevertheless, since the amendatory provision may be readily examined under the current
parameters of discussion, the Court proceeds to resolve its constitutionality.
252

Primarily, Section 12 of PD 1869, as amended by PD 1993, indicates that the Presidential Social
Fund may be used "to first, finance the priority infrastructure development projects and second, to
finance the restoration of damaged or destroyed facilities due to calamities, as may be directed and
authorized by the Office of the President of the Philippines." The Court finds that while the second
indicated purpose adequately curtails the authority of the President to spend the Presidential Social
Fund only for restoration purposes which arise from calamities, the first indicated purpose, however,
gives him carte blanche authority to use the same fund for any infrastructure project he may so
determine as a "priority". Verily, the law does not supply a definition of "priority in frastructure
development projects" and hence, leaves the President without any guideline to construe the same.
To note, the delimitation of a project as one of "infrastructure" is too broad of a classification since
the said term could pertain to any kind of facility. This may be deduced from its lexicographic
definition as follows: "the underlying framework of a system, especially public services and facilities
(such as highways, schools, bridges, sewers, and water-systems) needed to support commerce as
well as economic and residential development." In fine, the phrase "to finance the priority
infrastructure development projects" must be stricken down as unconstitutional since similar to the
above-assailed provision under Section 8 of PD 910 it lies independently unfettered by any
sufficient standard of the delegating law. As they are severable, all other provisions of Section 12 of
PD 1869, as amended by PD 1993, remains legally effective and subsisting.
253

D. Ancillary Prayers. 1.
Petitioners Prayer to be Furnished Lists and Detailed Reports.
Aside from seeking the Court to declare the Pork Barrel System unconstitutional as the Court did
so in the context of its pronouncements made in this Decision petitioners equally pray that the
Executive Secretary and/or the DBM be ordered to release to the CoA and to the public: (a) "the
complete schedule/list of legislators who have availed of their PDAF and VILP from the years 2003
to 2013, specifying the use of the funds, the project or activity and the recipient entities or
individuals, and all pertinent data thereto" (PDAF Use Schedule/List); and (b) "the use of the
Executives lump-sum, discretionary funds, including the proceeds from the x x x Malampaya Funds
and remittances from the PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity
and the recipient entities or individuals, and all pertinent data thereto" (Presidential Pork Use
Report). Petitioners prayer is grounded on Section 28, Article II and Section 7, Article III of the 1987
Constitution which read as follows:
254

255

ARTICLE II
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a
policy of full public disclosure of all its transactions involving public interest.

ARTICLE III Sec. 7.

The right of the people to information on matters of public concern shall be recognized. Access to
official records, and to documents and papers pertaining to official acts, transactions, or decisions,
as well as to government research data used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by law.
The Court denies petitioners submission.
Case law instructs that the proper remedy to invoke the right to information is to file a petition for
mandamus. As explained in the case of Legaspi v. Civil Service Commission:
256

While the manner of examining public records may be subject to reasonable regulation by the
government agency in custody thereof, the duty to disclose the information of public concern, and to
afford access to public records cannot be discretionary on the part of said agencies. Certainly, its
performance cannot be made contingent upon the discretion of such agencies. Otherwise, the
enjoyment of the constitutional right may be rendered nugatory by any whimsical exercise of agency
discretion. The constitutional duty, not being discretionary, its performance may be compelled by a
writ of mandamus in a proper case.
But what is a proper case for Mandamus to issue? In the case before Us, the public right to be
enforced and the concomitant duty of the State are unequivocably set forth in the Constitution.
The decisive question on the propriety of the issuance of the writ of mandamus in this case is,
whether the information sought by the petitioner is within the ambit of the constitutional guarantee.
(Emphases supplied)
Corollarily, in the case of Valmonte v. Belmonte Jr. (Valmonte), it has been clarified that the right to
information does not include the right to compel the preparation of "lists, abstracts, summaries and
the like." In the same case, it was stressed that it is essential that the "applicant has a well -defined,
clear and certain legal right to the thing demanded and that it is the imperative duty of defendant to
perform the act required." Hence, without the foregoing substantiations, the Court cannot grant a
particular request for information. The pertinent portions of Valmonte are hereunder quoted:
257

258

Although citizens are afforded the right to information and, pursuant thereto, are entitled to "access
to official records," the Constitution does not accord them a right to compel custodians of official
records to prepare lists, abstracts, summaries and the like in their desire to acquire information on
matters of public concern.
It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a welldefined, clear and certain legal right to the thing demanded and that it is the imperative duty of
defendant to perform the act required. The corresponding duty of the respondent to perform the
required act must be clear and specific Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126
SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.
The request of the petitioners fails to meet this standard, there being no duty on the part of
respondent to prepare the list requested. (Emphases supplied)
In these cases, aside from the fact that none of the petitions are in the nature of mandamus actions,
the Court finds that petitioners have failed to establish a "a well-defined, clear and certain legal right"
to be furnished by the Executive Secretary and/or the DBM of their requested PDAF Use

Schedule/List and Presidential Pork Use Report. Neither did petitioners assert any law or
administrative issuance which would form the bases of the latters duty to furnish them with the
documents requested. While petitioners pray that said information be equally released to the CoA, it
must be pointed out that the CoA has not been impleaded as a party to these cases nor has it filed
any petition before the Court to be allowed access to or to compel the release of any official
document relevant to the conduct of its audit investigations. While the Court recognizes that the
information requested is a matter of significant public concern, however, if only to ensure that the
parameters of disclosure are properly foisted and so as not to unduly hamper the equally important
interests of the government, it is constrained to deny petitioners prayer on this score, without
prejudice to a proper mandamus case which they, or even the CoA, may choose to pursue through a
separate petition.
It bears clarification that the Courts denial herein should only cover petitioners plea to be furnished
with such schedule/list and report and not in any way deny them, or the general public, access to
official documents which are already existing and of public record. Subject to reasonable regulation
and absent any valid statutory prohibition, access to these documents should not be proscribed.
Thus, in Valmonte, while the Court denied the application for mandamus towards the preparation of
the list requested by petitioners therein, it nonetheless allowed access to the documents sought for
by the latter, subject, however, to the custodians reasonable regulations,viz.:
259

In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS,
subject to reasonable regulations that the latter may promulgate relating to the manner and hours of
examination, to the end that damage to or loss of the records may be avoided, that undue
interference with the duties of the custodian of the records may be prevented and that the right of
other persons entitled to inspect the records may be insured Legaspi v. Civil Service Commission,
supra at p. 538, quoting Subido v. Ozaeta, 80 Phil. 383, 387. The petition, as to the second and third
alternative acts sought to be done by petitioners, is meritorious.
However, the same cannot be said with regard to the first act sought by petitioners, i.e.,
"to furnish petitioners the list of the names of the Batasang Pambansa members belonging to the
UNIDO and PDP-Laban who were able to secure clean loans immediately before the February 7
election thru the intercession/marginal note of the then First Lady Imelda Marcos."
The Court, therefore, applies the same treatment here.
2. Petitioners Prayer to Include Matters in Congressional Deliberations.
Petitioners further seek that the Court "order the inclusion in budgetary deliberations with the
Congress of all presently, off-budget, lump sum, discretionary funds including but not limited to,
proceeds from the x x x Malampaya Fund, remittances from the PAGCOR and the PCSO or the
Executives Social Funds."
260

Suffice it to state that the above-stated relief sought by petitioners covers a matter which is generally
left to the prerogative of the political branches of government. Hence, lest the Court itself overreach,
it must equally deny their prayer on this score.
3. Respondents Prayer to Lift TRO; Consequential Effects of Decision.
The final issue to be resolved stems from the interpretation accorded by the DBM to the concept of
released funds. In response to the Courts September 10, 2013 TRO that enjoined the release of the

remaining PDAF allocated for the year 2013, the DBM issued Circular Letter No. 2013-8 dated
September 27, 2013 (DBM Circular 2013-8) which pertinently reads as follows:
3.0 Nonetheless, PDAF projects funded under the FY 2013 GAA, where a Special Allotment Release
Order (SARO) has been issued by the DBM and such SARO has been obligated by the
implementing agencies prior to the issuance of the TRO, may continually be implemented and
disbursements thereto effected by the agencies concerned.
Based on the text of the foregoing, the DBM authorized the continued implementation and
disbursement of PDAF funds as long as they are: first, covered by a SARO; and, second, that said
SARO had been obligated by the implementing agency concerned prior to the issuance of the
Courts September 10, 2013 TRO.
Petitioners take issue with the foregoing circular, arguing that "the issuance of the SARO does not
yet involve the release of funds under the PDAF, as release is only triggered by the issuance of a
Notice of Cash Allocation [(NCA)]." As such, PDAF disbursements, even if covered by an obligated
SARO, should remain enjoined.
261

For their part, respondents espouse that the subject TRO only covers "unreleased and unobligated
allotments." They explain that once a SARO has been issued and obligated by the implementing
agency concerned, the PDAF funds covered by the same are already "beyond the reach of the TRO
because they cannot be considered as remaining PDAF." They conclude that this is a reasonable
interpretation of the TRO by the DBM.
262

The Court agrees with petitioners in part.

At the outset, it must be observed that the issue of whether or not the Courts September 10, 2013
TRO should be lifted is a matter rendered moot by the present Decision. The unconstitutionality of
the 2013 PDAF Article as declared herein has the consequential effect of converting the temporary
injunction into a permanent one. Hence, from the promulgation of this Decision, the release of the
remaining PDAF funds for 2013, among others, is now permanently enjoined.
The propriety of the DBMs interpretation of the concept of "release" must, nevertheless, be resolved
as it has a practical impact on the execution of the current Decision. In particular, the Court must
resolve the issue of whether or not PDAF funds covered by obligated SAROs, at the time this
Decision is promulgated, may still be disbursed following the DBMs interpretation in DBM Circular
2013-8.
On this score, the Court agrees with petitioners posturing for the fundamental reason that funds
covered by an obligated SARO are yet to be "released" under legal contemplation. A SARO, as
defined by the DBM itself in its website, is "aspecific authority issued to identified agencies to incur
obligations not exceeding a given amount during a specified period for the purpose indicated. It shall
cover expenditures the release of which is subject to compliance with specific laws or regulations, or
is subject to separate approval or clearance by competent authority."
263

Based on this definition, it may be gleaned that a SARO only evinces the existence of an obligation
and not the directive to pay. Practically speaking, the SARO does not have the direct and immediate
effect of placing public funds beyond the control of the disbursing authority. In fact, a SARO may
even be withdrawn under certain circumstances which will prevent the actual release of funds. On
the other hand, the actual release of funds is brought about by the issuance of the NCA, which is
subsequent to the issuance of a SARO. As may be determined from the statements of the DBM
representative during the Oral Arguments:
264

265

Justice Bernabe: Is the notice of allocation issued simultaneously with the SARO?
xxxx
Atty. Ruiz: It comes after. The SARO, Your Honor, is only the go signal for the agencies to obligate or
to enter into commitments. The NCA, Your Honor, is already the go signal to the treasury for us to be
able to pay or to liquidate the amounts obligated in the SARO; so it comes after. x x x The NCA, Your
Honor, is the go signal for the MDS for the authorized government-disbursing banks to, therefore,
pay the payees depending on the projects or projects covered by the SARO and the NCA.
Justice Bernabe: Are there instances that SAROs are cancelled or revoked?
Atty. Ruiz: Your Honor, I would like to instead submit that there are instances that the SAROs issued
are withdrawn by the DBM.
Justice Bernabe: They are withdrawn?
Atty. Ruiz: Yes, Your Honor x x x. (Emphases and underscoring supplied)
Thus, unless an NCA has been issued, public funds should not be treated as funds which have been
"released." In this respect, therefore, the disbursement of 2013 PDAF funds which are only covered
by obligated SAROs, and without any corresponding NCAs issued, must, at the time of this
Decisions promulgation, be enjoined and consequently reverted to the unappropriated surplus of the
general fund. Verily, in view of the declared unconstitutionality of the 2013 PDAF Article, the funds
appropriated pursuant thereto cannot be disbursed even though already obligated, else the Court
sanctions the dealing of funds coming from an unconstitutional source.
This same pronouncement must be equally applied to (a) the Malampaya Funds which have been
obligated but not released meaning, those merely covered by a SARO under the phrase "and for
such other purposes as may be hereafter directed by the President" pursuant to Section 8 of PD
910; and (b) funds sourced from the Presidential Social Fund under the phrase "to finance the
priority infrastructure development projects" pursuant to Section 12 of PD 1869, as amended by PD
1993, which were altogether declared by the Court as unconstitutional. However, these funds should
not be reverted to the general fund as afore-stated but instead, respectively remain under the
Malampaya Funds and the Presidential Social Fund to be utilized for their corresponding special
purposes not otherwise declared as unconstitutional.
E. Consequential Effects of Decision.
As a final point, it must be stressed that the Courts pronouncement anent the unconstitutionality of
(a) the 2013 PDAF Article and its Special Provisions, (b) all other Congressional Pork Barrel
provisions similar thereto, and (c) the phrases (1) "and for such other purposes as may be hereafter
directed by the President" under Section 8 of PD 910, and (2) "to finance the priority infrastructure
development projects" under Section 12 of PD 1869, as amended by PD 1993, must only be treated
as prospective in effect in view of the operative fact doctrine.
To explain, the operative fact doctrine exhorts the recognition that until the judiciary, in an
appropriate case, declares the invalidity of a certain legislative or executive act, such act is
presumed constitutional and thus, entitled to obedience and respect and should be properly
enforced and complied with. As explained in the recent case of Commissioner of Internal Revenue v.
San Roque Power Corporation, the doctrine merely "reflects awareness that precisely because the
266

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."
267

268

For these reasons, this Decision should be heretofore applied prospectively.

Conclusion
The Court renders this Decision to rectify an error which has persisted in the chronicles of our
history. In the final analysis, the Court must strike down the Pork Barrel System as unconstitutional in
view of the inherent defects in the rules within which it operates. To recount, insofar as it has allowed
legislators to wield, in varying gradations, non-oversight, post-enactment authority in vital areas of
budget execution, the system has violated the principle of separation of powers; insofar as it has
conferred unto legislators the power of appropriation by giving them personal, discretionary funds
from which they are able to fund specific projects which they themselves determine, it has similarly
violated the principle of non-delegability of legislative power ; insofar as it has created a system of
budgeting wherein items are not textualized into the appropriations bill, it has flouted the prescribed
procedure of presentment and, in the process, denied the President the power to veto items ; insofar
as it has diluted the effectiveness of congressional oversight by giving legislators a stake in the
affairs of budget execution, an aspect of governance which they may be called to monitor and
scrutinize, the system has equally impaired public accountability ; insofar as it has authorized
legislators, who are national officers, to intervene in affairs of purely local nature, despite the
existence of capable local institutions, it has likewise subverted genuine local autonomy ; and again,
insofar as it has conferred to the President the power to appropriate funds intended by law for
energy-related purposes only to other purposes he may deem fit as well as other public funds under
the broad classification of "priority infrastructure development projects," it has once more
transgressed the principle of non-delegability.
For as long as this nation adheres to the rule of law, any of the multifarious unconstitutional methods
and mechanisms the Court has herein pointed out should never again be adopted in any system of
governance, by any name or form, by any semblance or similarity, by any influence or effect.
Disconcerting as it is to think that a system so constitutionally unsound has monumentally endured,
the Court urges the people and its co-stewards in government to look forward with the optimism of
change and the awareness of the past. At a time of great civic unrest and vociferous public debate,
the Court fervently hopes that its Decision today, while it may not purge all the wrongs of society nor
bring back what has been lost, guides this nation to the path forged by the Constitution so that no
one may heretofore detract from its cause nor stray from its course. After all, this is the Courts
bounden duty and no others.
WHEREFORE, the petitions are PARTLY GRANTED. In view of the constitutional violations
discussed in this Decision, the Court hereby declares as UNCONSTITUTIONAL: (a) the entire 2013
PDAF Article; (b) all legal provisions of past and present Congressional Pork Barrel Laws, such as
the previous PDAF and CDF Articles and the various Congressional Insertions, which authorize/d
legislators whether individually or collectively organized into committees to intervene, assume or
participate in any of the various post-enactment stages of the budget execution, such as but not
limited to the areas of project identification, modification and revision of project identification, fund
release and/or fund realignment, unrelated to the power of congressional oversight; (c) all legal
provisions of past and present Congressional Pork Barrel Laws, such as the previous PDAF and

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

G.R. No. 180643

September 4, 2008

ROMULO L. NERI, petitioner,

vs.
SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS,
SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON
NATIONAL DEFENSE AND SECURITY, respondents.
RESOLUTION
LEONARDO-DE CASTRO, J.:
Executive privilege is not a personal privilege, but one that adheres to the Office of the President. It
exists to protect public interest, not to benefit a particular public official. Its purpose, among others, is
to assure that the nation will receive the benefit of candid, objective and untrammeled
communication and exchange of information between the President and his/her advisers in the
process of shaping or forming policies and arriving at decisions in the exercise of the functions of the
Presidency under the Constitution. The confidentiality of the Presidents conversations and
correspondence is not unique. It is akin to the confidentiality of judicial deliberations. It possesses
the same value as the right to privacy of all citizens and more, because it is dictated by public
interest and the constitutionally ordained separation of governmental powers.
In these proceedings, this Court has been called upon to exercise its power of review and arbitrate a
hotly, even acrimoniously, debated dispute between the Courts co-equal branches of government. In
this task, this Court should neither curb the legitimate powers of any of the co-equal and coordinate
branches of government nor allow any of them to overstep the boundaries set for it by our
Constitution. The competing interests in the case at bar are the claim of executive privilege by the
President, on the one hand, and the respondent Senate Committees assertion of their power to
conduct legislative inquiries, on the other. The particular facts and circumstances of the present
case, stripped of the politically and emotionally charged rhetoric from both sides and viewed in the
light of settled constitutional and legal doctrines, plainly lead to the conclusion that the claim of
executive privilege must be upheld.
Assailed in this motion for reconsideration is our Decision dated March 25, 2008 (the "Decision"),
granting the petition for certiorari filed by petitioner Romulo L. Neri against the respondent Senate
Committees on Accountability of Public Officers and Investigations,1 Trade and Commerce,2 and
National Defense and Security (collectively the "respondent Committees"). 3
A brief review of the facts is imperative.
On September 26, 2007, petitioner appeared before respondent Committees and testified for about
eleven (11) hours on matters concerning the National Broadband Project (the "NBN Project"), a
project awarded by the Department of Transportation and Communications ("DOTC") to Zhong Xing
Telecommunications Equipment ("ZTE"). Petitioner disclosed that then Commission on Elections
("COMELEC") Chairman Benjamin Abalos offered him P200 Million in exchange for his approval of
the NBN Project. He further narrated that he informed President Gloria Macapagal Arroyo
("President Arroyo") of the bribery attempt and that she instructed him not to accept the bribe.
However, when probed further on President Arroyo and petitioners discussions relating to the NBN
Project, petitioner refused to answer, invoking "executive privilege." To be specific, petitioner refused
to answer questions on: (a) whether or not President Arroyo followed up the NBN Project, 4 (b)

whether or not she directed him to prioritize it,5 and (c) whether or not she directed him to approve
it.6
Respondent Committees persisted in knowing petitioners answers to these three questions by
requiring him to appear and testify once more on November 20, 2007. On November 15, 2007,
Executive Secretary Eduardo R. Ermita wrote to respondent Committees and requested them to
dispense with petitioners testimony on the ground of executive privilege. 7 The letter of Executive
Secretary Ermita pertinently stated:
Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations and
correspondence between the President and public officials which are considered executive
privilege (Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July
9, 2002). Maintaining the confidentiality of conversations of the President is necessary in the
exercise of her executive and policy decision making process. The expectation of a
President to the confidentiality of her conversations and correspondences, like the value
which we accord deference for the privacy of all citizens, is the necessity for protection of the
public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking. Disclosure of conversations of the President will have a chilling effect on the
President, and will hamper her in the effective discharge of her duties and responsibilities, if
she is not protected by the confidentiality of her conversations.
The context in which executive privilege is being invoked is that the information sought to be
disclosed might impair our diplomatic as well as economic relations with the Peoples
Republic of China. Given the confidential nature in which these information were conveyed
to the President, he cannot provide the Committee any further details of these conversations,
without disclosing the very thing the privilege is designed to protect.
In light of the above considerations, this Office is constrained to invoke the settled doctrine of
executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri
accordingly.
Considering that Sec. Neri has been lengthily interrogated on the subject in an
unprecedented 11-hour hearing, wherein he has answered all questions propounded to him
except the foregoing questions involving executive privilege, we therefore request that his
testimony on 20 November 2007 on the ZTE / NBN project be dispensed with.
On November 20, 2007, petitioner did not appear before respondent Committees upon orders of the
President invoking executive privilege. On November 22, 2007, the respondent Committees issued
the show-cause letter requiring him to explain why he should not be cited in contempt. On November
29, 2007, in petitioners reply to respondent Committees, he manifested that it was not his intention
to ignore the Senate hearing and that he thought the only remaining questions were those he
claimed to be covered by executive privilege. He also manifested his willingness to appear and
testify should there be new matters to be taken up. He just requested that he be furnished "in
advance as to what else" he "needs to clarify."
Respondent Committees found petitioners explanations unsatisfactory. Without responding to his
request for advance notice of the matters that he should still clarify, they issued the Order dated
January 30, 2008; In Re: P.S. Res. Nos. 127,129,136 & 144; and privilege speeches of Senator
Lacson and Santiago (all on the ZTE-NBN Project), citing petitioner in contempt of respondent
Committees and ordering his arrest and detention at the Office of the Senate Sergeant-at-Arms until
such time that he would appear and give his testimony.

On the same date, petitioner moved for the reconsideration of the above Order.8 He insisted that he
had not shown "any contemptible conduct worthy of contempt and arrest." He emphasized his
willingness to testify on new matters, but respondent Committees did not respond to his request for
advance notice of questions. He also mentioned the petition for certiorari he previously filed with this
Court on December 7, 2007. According to him, this should restrain respondent Committees from
enforcing the order dated January 30, 2008 which declared him in contempt and directed his arrest
and detention.
Petitioner then filed his Supplemental Petition for Certiorari (with Urgent Application for
TRO/Preliminary Injunction) on February 1, 2008. In the Courts Resolution dated February 4, 2008,
the parties were required to observe the status quo prevailing prior to the Order dated January 30,
2008.
On March 25, 2008, the Court granted his petition for certiorari on two grounds: first, the
communications elicited by the three (3) questions were covered by executive privilege;
and second, respondent Committees committed grave abuse of discretion in issuing the contempt
order. Anent the first ground, we considered the subject communications as falling under
the presidential communications privilege because (a) they related to a quintessential and nondelegable power of the President, (b) they were received by a close advisor of the President, and (c)
respondent Committees failed to adequately show a compelling need that would justify the limitation
of the privilege and the unavailability of the information elsewhere by an appropriate investigating
authority. As to the second ground, we found that respondent Committees committed grave abuse of
discretion in issuing the contempt order because (a) there was a valid claim of executive privilege,
(b) their invitations to petitioner did not contain the questions relevant to the inquiry, (c) there was a
cloud of doubt as to the regularity of the proceeding that led to their issuance of the contempt order,
(d) they violated Section 21, Article VI of the Constitution because their inquiry was not in
accordance with the "duly published rules of procedure," and (e) they issued the contempt order
arbitrarily and precipitately.
On April 8, 2008, respondent Committees filed the present motion for reconsideration, anchored on
the following grounds:
I
CONTRARY TO THIS HONORABLE COURTS DECISION, THERE IS NO DOUBT THAT
THE ASSAILED ORDERS WERE ISSUED BY RESPONDENT COMMITTEES PURSUANT
TO THE EXERCISE OF THEIR LEGISLATIVE POWER, AND NOT MERELY THEIR
OVERSIGHT FUNCTIONS.
II
CONTRARY TO THIS HONORABLE COURTS DECISION, THERE CAN BE NO
PRESUMPTION THAT THE INFORMATION WITHHELD IN THE INSTANT CASE IS
PRIVILEGED.
III
CONTRARY TO THIS HONORABLE COURTS DECISION, THERE IS NO FACTUAL OR
LEGAL BASIS TO HOLD THAT THE COMMUNICATIONS ELICITED BY THE SUBJECT
THREE (3) QUESTIONS ARE COVERED BY EXECUTIVE PRIVILEGE, CONSIDERING
THAT:

A. THERE IS NO SHOWING THAT THE MATTERS FOR WHICH EXECUTIVE PRIVILEGE

IS CLAIMED CONSTITUTE STATE SECRETS.
B. EVEN IF THE TESTS ADOPTED BY THIS HONORABLE COURT IN THE DECISION IS
APPLIED, THERE IS NO SHOWING THAT THE ELEMENTS OF PRESIDENTIAL
COMMUNICATIONS PRIVILEGE ARE PRESENT.
C. ON THE CONTRARY, THERE IS ADEQUATE SHOWING OF A COMPELLING NEED
TO JUSTIFY THE DISCLOSURE OF THE INFORMATION SOUGHT.
D. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE
WOULD SERIOUSLY IMPAIR THE RESPONDENTS PERFORMANCE OF THEIR
PRIMARY FUNCTION TO ENACT LAWS.
E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO INFORMATION, AND
THE CONSTITUTIONAL POLICIES ON PUBLIC ACCOUNTABILITY AND
TRANSPARENCY OUTWEIGH THE CLAIM OF EXECUTIVE PRIVILEGE.
IV
CONTRARY TO THIS HONORABLE COURTS DECISION, RESPONDENTS DID NOT
COMMIT GRAVE ABUSE OF DISCRETION IN ISSUING THE ASSAILED CONTEMPT
ORDER, CONSIDERING THAT:
A. THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT
CASE.
B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED REQUIREMENTS LAID DOWN
INSENATE V. ERMITA.
C. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN ACCORDANCE WITH
THEIR INTERNAL RULES.
D. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS UNDER ARTICLE VI,
SECTION 21 OF THE CONSTITUTION REQUIRING THAT ITS RULES OF PROCEDURE
BE DULY PUBLISHED, AND WERE DENIED DUE PROCESS WHEN THE COURT
CONSIDERED THE OSGS INTERVENTION ON THIS ISSUE WITHOUT GIVING
RESPONDENTS THE OPPORTUNITY TO COMMENT.
E. RESPONDENTS ISSUANCE OF THE CONTEMPT ORDER IS NOT ARBITRARY OR
PRECIPITATE.
In his Comment, petitioner charges respondent Committees with exaggerating and distorting the
Decision of this Court. He avers that there is nothing in it that prohibits respondent Committees from
investigating the NBN Project or asking him additional questions. According to petitioner, the Court
merely applied the rule on executive privilege to the facts of the case. He further submits the
following contentions: first, the assailed Decision did not reverse the presumption against executive
secrecy laid down in Senate v. Ermita; second, respondent Committees failed to overcome the
presumption of executive privilege because it appears that they could legislate even without the
communications elicited by the three (3) questions, and they admitted that they could dispense with
petitioners testimony if certain NEDA documents would be given to them; third, the requirement of

specificity applies only to the privilege for State, military and diplomatic secrets, not to the
necessarily broad and all-encompassing presidential communications privilege; fourth, there is no
right to pry into the Presidents thought processes or exploratory exchanges; fifth, petitioner is not
covering up or hiding anything illegal; sixth, the Court has the power and duty to annul the Senate
Rules; seventh, the Senate is not a continuing body, thus the failure of the present Senate to publish
its Rules of Procedure Governing Inquiries in Aid of Legislation (Rules) has a vitiating effect on
them; eighth, the requirement for a witness to be furnished advance copy of questions comports
with due process and the constitutional mandate that the rights of witnesses be respected;
and ninth, neither petitioner nor respondent has the final say on the matter of executive privilege,
only the Court.
For its part, the Office of the Solicitor General maintains that: (1) there is no categorical
pronouncement from the Court that the assailed Orders were issued by respondent Committees
pursuant to their oversight function; hence, there is no reason for them "to make much" of the
distinction between Sections 21 and 22, Article VI of the Constitution; (2) presidential
communications enjoy a presumptive privilege against disclosure as earlier held in Almonte v.
Vasquez9 and Chavez v. Public Estates Authority (PEA)10; (3) the communications elicited by the
three (3) questions are covered by executive privilege, because all the elements of the presidential
communications privilege are present; (4) the subpoena ad testificandum issued by respondent
Committees to petitioner is fatally defective under existing law and jurisprudence; (5) the failure of
the present Senate to publish its Rules renders the same void; and (6) respondent Committees
arbitrarily issued the contempt order.
Incidentally, respondent Committees objection to the Resolution dated March 18, 2008 (granting the
Office of the Solicitor Generals Motion for Leave to Intervene and to Admit Attached Memorandum)
only after the promulgation of the Decision in this case is foreclosed by its untimeliness.
The core issues that arise from the foregoing respective contentions of the opposing parties are as
follows:
(1) whether or not there is a recognized presumptive presidential communications privilege
in our legal system;
(2) whether or not there is factual or legal basis to hold that the communications elicited by
the three (3) questions are covered by executive privilege;
(3) whether or not respondent Committees have shown that the communications elicited by
the three (3) questions are critical to the exercise of their functions; and
(4) whether or not respondent Committees committed grave abuse of discretion in issuing
the contempt order.
We shall discuss these issues seriatim.
I
There Is a Recognized Presumptive
Presidential Communications Privilege
Respondent Committees ardently argue that the Courts declaration that presidential
communications are presumptively privileged reverses the "presumption" laid down in Senate v.

Ermita11 that "inclines heavily against executive secrecy and in favor of disclosure." Respondent
Committees then claim that the Court erred in relying on the doctrine in Nixon.
Respondent Committees argue as if this were the first time the presumption in favor of
thepresidential communications privilege is mentioned and adopted in our legal system. That is
far from the truth. The Court, in the earlier case of Almonte v. Vasquez,12 affirmed that
the presidential communications privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the Constitution. Even Senate v. Ermita,13 the
case relied upon by respondent Committees, reiterated this concept. There, the Court enumerated
the cases in which the claim of executive privilege was recognized, among them Almonte v.
Chavez, Chavez v. Presidential Commission on Good Government (PCGG),14 and Chavez v.
PEA.15 The Court articulated in these cases that "there are certain types of information which the
government may withhold from the public,16" that there is a "governmental privilege against public
disclosure with respect to state secrets regarding military, diplomatic and other national security
matters";17 and that "the right to information does not extend to matters recognized as
privileged information under the separation of powers, by which the Court meant
Presidential conversations, correspondences, and discussions in closed-door Cabinet
meetings."18
Respondent Committees observation that this Courts Decision reversed the "presumption that
inclines heavily against executive secrecy and in favor of disclosure" arises from a piecemeal
interpretation of the said Decision. The Court has repeatedly held that in order to arrive at the true
intent and meaning of a decision, no specific portion thereof should be isolated and resorted to, but
the decision must be considered in its entirety.19
Note that the aforesaid presumption is made in the context of the circumstances obtaining in Senate
v. Ermita, which declared void Sections 2(b) and 3 of Executive Order (E.O.) No. 464, Series of
2005. The pertinent portion of the decision in the said case reads:
From the above discussion on the meaning and scope of executive privilege, both in the
United States and in this jurisprudence, a clear principle emerges. Executive privilege,
whether asserted against Congress, the courts, or the public, is recognized only in relation
to certain types of information of a sensitive character. While executive privilege is a
constitutional concept, a claim thereof may be valid or not depending on the ground invoked
to justify it and the context in which it is made. Noticeably absent is any recognition that
executive officials are exempt from the duty to disclose information by the mere fact of being
executive officials. Indeed, the extraordinary character of the exemptions indicates that
the presumption inclines heavily against executive secrecy and in favor of disclosure.
(Emphasis and underscoring supplied)
Obviously, the last sentence of the above-quoted paragraph in Senate v. Ermita refers to the
"exemption" being claimed by the executive officials mentioned in Section 2(b) of E.O. No. 464,
solely by virtue of their positions in the Executive Branch. This means that when an executive
official, who is one of those mentioned in the said Sec. 2(b) of E.O. No. 464, claims to be exempt
from disclosure, there can be no presumption of authorization to invoke executive privilege
given by the President to said executive official, such that the presumption in this situation inclines
heavily against executive secrecy and in favor of disclosure.
Senate v. Ermita 20 expounds on the premise of the foregoing ruling in this wise:
Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines
that a certain information is privileged, such determination is presumed to bear the

Presidents authority and has the effect of prohibiting the official from appearing before
Congress, subject only to the express pronouncement of the President that it is allowing the
appearance of such official. These provisions thus allow the President to authorize claims of
privilege by mere silence.
Such presumptive authorization, however, is contrary to the exceptional nature of the
privilege. Executive privilege, as already discussed, is recognized with respect to information
the confidential nature of which is crucial to the fulfillment of the unique role and
responsibilities of the executive branch, or in those instances where exemption from
disclosure is necessary to the discharge of highly important executive responsibilities. The
doctrine of executive privilege is thus premised on the fact that certain information must, as a
matter of necessity, be kept confidential in pursuit of the public interest. The privilege being,
by definition, an exemption from the obligation to disclose information, in this case to
Congress, the necessity must be of such high degree as to outweigh the public interest in
enforcing that obligation in a particular case.
In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to
the President the power to invoke the privilege. She may of course authorize the Executive
Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must
state that the authority is "By order of the President", which means that he personally
consulted with her. The privilege being an extraordinary power, it must be wielded only by the
highest official in the executive hierarchy. In other words, the President may not authorize
her subordinates to exercise such power. There is even less reason to uphold such
authorization in the instant case where the authorization is not explicit but by mere silence.
Section 3, in relation to Section 2(b), is further invalid on this score.
The constitutional infirmity found in the blanket authorization to invoke executive privilege granted by
the President to executive officials in Sec. 2(b) of E.O. No. 464 does not obtain in this case.
In this case, it was the President herself, through Executive Secretary Ermita, who invoked executive
privilege on a specific matter involving an executive agreement between the Philippines and China,
which was the subject of the three (3) questions propounded to petitioner Neri in the course of the
Senate Committees investigation. Thus, the factual setting of this case markedly differs from that
passed upon in Senate v. Ermita.
Moreover, contrary to the claim of respondents, the Decision in this present case hews closely to the
ruling in Senate v. Ermita,21 to wit:
Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It has been used even
prior to the promulgation of the 1986 Constitution. Being of American origin, it is best
understood in light of how it has been defined and used in the legal literature of the United
States.
Schwart defines executive privilege as "the power of the Government to withhold
information from the public, the courts, and the Congress. Similarly, Rozell defines it as
"the right of the President and high-level executive branch officers to withhold information
from Congress, the courts, and ultimately the public." x x x In this jurisdiction, the doctrine of
executive privilege was recognized by this Court in Almonte v. Vasquez. Almonte used the
term in reference to the same privilege subject of Nixon. It quoted the following portion of the
Nixon decision which explains the basis for the privilege:

"The expectation of a President to the confidentiality of his conversations and

correspondences, like the claim of confidentiality of judicial deliberations, for example,
he has all the values to which we accord deference for the privacy of all citizens and, added
to those values, is the necessity for protection of the public interest in candid, objective, and
even blunt or harsh opinions in Presidential decision-making. A President and those who
assist him must be free to explore alternatives in the process of shaping policies and making
decisions and to do so in a way many would be unwilling to express except privately. These
are the considerations justifying a presumptive privilege for Presidential
communications. The privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the Constitution x x x "
(Emphasis and italics supplied)
Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege for Presidential
communication," which was recognized early on in Almonte v. Vasquez. To construe the passage
inSenate v. Ermita adverted to in the Motion for Reconsideration of respondent Committees,
referring to the non-existence of a "presumptive authorization" of an executive official, to mean that
the "presumption" in favor of executive privilege "inclines heavily against executive secrecy and in
favor of disclosure" is to distort the ruling in the Senate v. Ermita and make the same engage in selfcontradiction.
Senate v. Ermita22 expounds on the constitutional underpinning of the relationship between the
Executive Department and the Legislative Department to explain why there should be no implied
authorization or presumptive authorization to invoke executive privilege by the Presidents
subordinate officials, as follows:
When Congress exercises its power of inquiry, the only way for department heads to
exempt themselves therefrom is by a valid claim of privilege. They are not exempt by
the mere fact that they are department heads. Only one executive official may be
exempted from this power - the President on whom executive power is vested, hence,
beyond the reach of Congress except through the power of impeachment. It is based on he
being the highest official of the executive branch, and the due respect accorded to a coequal branch of governments which is sanctioned by a long-standing custom. (Underscoring
supplied)
Thus, if what is involved is the presumptive privilege of presidential communications when invoked
by the President on a matter clearly within the domain of the Executive, the said presumption
dictates that the same be recognized and be given preference or priority, in the absence of proof of a
compelling or critical need for disclosure by the one assailing such presumption. Any construction to
the contrary will render meaningless the presumption accorded by settled jurisprudence in favor of
executive privilege. In fact, Senate v. Ermita reiterates jurisprudence citing "the considerations
justifying a presumptive privilege for Presidential communications." 23
II
There Are Factual and Legal Bases to
Hold that the Communications Elicited by the
Three (3) Questions Are Covered by Executive Privilege
Respondent Committees claim that the communications elicited by the three (3) questions are not
covered by executive privilege because the elements of the presidential communications
privilegeare not present.

A. The power to enter into an executive agreement is a "quintessential and non-delegable

presidential power."
First, respondent Committees contend that the power to secure a foreign loan does not relate to a
"quintessential and non-delegable presidential power," because the Constitution does not vest it in
the President alone, but also in the Monetary Board which is required to give its prior concurrence
and to report to Congress.
This argument is unpersuasive.
The fact that a power is subject to the concurrence of another entity does not make such power less
executive. "Quintessential" is defined as the most perfect embodiment of something, the
concentrated essence of substance.24 On the other hand, "non-delegable" means that a power or
duty cannot be delegated to another or, even if delegated, the responsibility remains with the
obligor.25 The power to enter into an executive agreement is in essence an executive power. This
authority of the President to enter into executive agreements without the concurrence of the
Legislature has traditionally been recognized in Philippine jurisprudence. 26 Now, the fact that the
President has to secure the prior concurrence of the Monetary Board, which shall submit to
Congress a complete report of its decision before contracting or guaranteeing foreign loans, does
not diminish the executive nature of the power.
The inviolate doctrine of separation of powers among the legislative, executive and judicial branches
of government by no means prescribes absolute autonomy in the discharge by each branch of that
part of the governmental power assigned to it by the sovereign people. There is the corollary
doctrine of checks and balances, which has been carefully calibrated by the Constitution to temper
the official acts of each of these three branches. Thus, by analogy, the fact that certain legislative
acts require action from the President for their validity does not render such acts less legislative in
nature. A good example is the power to pass a law. Article VI, Section 27 of the Constitution
mandates that every bill passed by Congress shall, before it becomes a law, be presented to the
President who shall approve or veto the same. The fact that the approval or vetoing of the bill is
lodged with the President does not render the power to pass law executive in nature. This is
because the power to pass law is generally a quintessential and non-delegable power of the
Legislature. In the same vein, the executive power to enter or not to enter into a contract to secure
foreign loans does not become less executive in nature because of conditions laid down in the
Constitution. The final decision in the exercise of the said executive power is still lodged in the Office
of the President.
B. The "doctrine of operational proximity" was laid down precisely to limit the scope of the
presidential communications privilege but, in any case, it is not conclusive.
Second, respondent Committees also seek reconsideration of the application of the "doctrine of
operational proximity" for the reason that "it maybe misconstrued to expand the scope of the
presidential communications privilege to communications between those who are operationally
proximate to the President but who may have "no direct communications with her."
It must be stressed that the doctrine of "operational proximity" was laid down in In re: Sealed
Case27precisely to limit the scope of the presidential communications privilege. The U.S. court was
aware of the dangers that a limitless extension of the privilege risks and, therefore, carefully cabined
its reach by explicitly confining it to White House staff, and not to staffs of the agencies, and then
only to White House staff that has "operational proximity" to direct presidential decision-making,
thus:

We are aware that such an extension, unless carefully circumscribed to accomplish the
purposes of the privilege, could pose a significant risk of expanding to a large swath of the
executive branch a privilege that is bottomed on a recognition of the unique role of the
President. In order to limit this risk, the presidential communications privilege should be
construed as narrowly as is consistent with ensuring that the confidentiality of the Presidents
decision-making process is adequately protected. Not every person who plays a role in
the development of presidential advice, no matter how remote and removed from the
President, can qualify for the privilege. In particular, the privilege should not extend to
staff outside the White House in executive branch agencies. Instead, the privilege
should apply only to communications authored or solicited and received by those members
of an immediate White House advisors staff who have broad and significant responsibility for
investigation and formulating the advice to be given the President on the particular matter to
which the communications relate. Only communications at that level are close enough to
the President to be revelatory of his deliberations or to pose a risk to the candor of his
advisers. See AAPS, 997 F.2d at 910 (it is "operational proximity" to the President that
matters in determining whether "[t]he Presidents confidentiality interests" is
implicated).(Emphasis supplied)
In the case at bar, the danger of expanding the privilege "to a large swath of the executive branch" (a
fear apparently entertained by respondents) is absent because the official involved here is a member
of the Cabinet, thus, properly within the term "advisor" of the President; in fact, her alter ego and a
member of her official family. Nevertheless, in circumstances in which the official involved is far too
remote, this Court also mentioned in the Decision the organizational test laid down in Judicial
Watch, Inc. v. Department of Justice.28 This goes to show that the operational proximity test used in
the Decision is not considered conclusive in every case. In determining which test to use, the main
consideration is to limit the availability of executive privilege only to officials who stand proximate to
the President, not only by reason of their function, but also by reason of their positions in the
Executives organizational structure. Thus, respondent Committees fear that the scope of the
privilege would be unnecessarily expanded with the use of the operational proximity test is
unfounded.
C. The Presidents claim of executive privilege is not merely based on a generalized interest;
and in balancing respondent Committees and the Presidents clashing interests, the Court
did not disregard the 1987 Constitutional provisions on government transparency,
accountability and disclosure of information.
Third, respondent Committees claim that the Court erred in upholding the Presidents invocation,
through the Executive Secretary, of executive privilege because (a) between respondent
Committees specific and demonstrated need and the Presidents generalized interest in
confidentiality, there is a need to strike the balance in favor of the former; and (b) in the balancing of
interest, the Court disregarded the provisions of the 1987 Philippine Constitution on government
transparency, accountability and disclosure of information, specifically, Article III, Section 7; 29 Article
II, Sections 2430 and 28;31 Article XI, Section 1;32 Article XVI, Section 10;33 Article VII, Section
20;34 and Article XII, Sections 9,35 21,36 and 22.37
It must be stressed that the Presidents claim of executive privilege is not merely founded on her
generalized interest in confidentiality. The Letter dated November 15, 2007 of Executive Secretary
Ermita specified presidential communications privilege in relation to diplomatic and economic
relations with another sovereign nation as the bases for the claim. Thus, the Letter stated:
The context in which executive privilege is being invoked is that the information
sought to be disclosed might impair our diplomatic as well as economic relations with

the Peoples Republic of China. Given the confidential nature in which this information
were conveyed to the President, he cannot provide the Committee any further details of
these conversations, without disclosing the very thing the privilege is designed to
protect. (emphasis supplied)
Even in Senate v. Ermita, it was held that Congress must not require the Executive to state the
reasons for the claim with such particularity as to compel disclosure of the information which the
privilege is meant to protect. This is a matter of respect for a coordinate and co-equal department.
It is easy to discern the danger that goes with the disclosure of the Presidents communication with
her advisor. The NBN Project involves a foreign country as a party to the agreement. It was actually
a product of the meeting of minds between officials of the Philippines and China. Whatever the
President says about the agreement - particularly while official negotiations are ongoing - are
matters which China will surely view with particular interest. There is danger in such kind of
exposure. It could adversely affect our diplomatic as well as economic relations with the Peoples
Republic of China. We reiterate the importance of secrecy in matters involving foreign negotiations
as stated in United States v. Curtiss-Wright Export Corp., 38 thus:
The nature of foreign negotiations requires caution, and their success must often depend on
secrecy, and even when brought to a conclusion, a full disclosure of all the measures,
demands, or eventual concessions which may have been proposed or contemplated would
be extremely impolitic, for this might have a pernicious influence on future negotiations or
produce immediate inconveniences, perhaps danger and mischief, in relation to other
powers. The necessity of such caution and secrecy was one cogent reason for vesting the
power of making treaties in the President, with the advice and consent of the Senate, the
principle on which the body was formed confining it to a small number of members. To admit,
then, a right in the House of Representatives to demand and to have as a matter of course
all the papers respecting a negotiation with a foreign power would be to establish a
dangerous precedent.
US jurisprudence clearly guards against the dangers of allowing Congress access to all papers
relating to a negotiation with a foreign power. In this jurisdiction, the recent case of Akbayan Citizens
Action Party, et al. v. Thomas G. Aquino, et al.39 upheld the privileged character of diplomatic
negotiations. In Akbayan, the Court stated:
Privileged character of diplomatic negotiations
The privileged character of diplomatic negotiations has been recognized in this jurisdiction.
In discussing valid limitations on the right to information, the Court in Chavez v. PCGG held
that "information on inter-government exchanges prior to the conclusion of treaties and
executive agreements may be subject to reasonable safeguards for the sake of national
interest." Even earlier, the same privilege was upheld in Peoples Movement for Press
Freedom (PMPF) v. Manglapus wherein the Court discussed the reasons for the privilege in
more precise terms.
In PMPF v. Manglapus, the therein petitioners were seeking information from the Presidents
representatives on the state of the then on-going negotiations of the RP-US Military Bases
Agreement. The Court denied the petition, stressing that "secrecy of negotiations with
foreign countries is not violative of the constitutional provisions of freedom of speech or of
the press nor of the freedom of access to information." The Resolution went on to state,
thus:

The nature of diplomacy requires centralization of authority and expedition of

decision which are inherent in executive action. Another essential
characteristic of diplomacy is its confidential nature. Although much has been
said about "open" and "secret" diplomacy, with disparagement of the latter,
Secretaries of State Hughes and Stimson have clearly analyzed and justified the
practice. In the words of Mr. Stimson:
"A complicated negotiation cannot be carried through without many,
many private talks and discussion, man to man; many tentative
suggestions and proposals. Delegates from other countries come and
tell you in confidence of their troubles at home and of their differences
with other countries and with other delegates; they tell you of what they
would do under certain circumstances and would not do under other
circumstances If these reports should become public who would
ever trust American Delegations in another conference? (United States
Department of State, Press Releases, June 7, 1930, pp. 282-284)
xxxx
There is frequent criticism of the secrecy in which negotiation with foreign
powers on nearly all subjects is concerned. This, it is claimed, is incompatible
with the substance of democracy. As expressed by one writer, "It can be said that
there is no more rigid system of silence anywhere in the world." (E.J. Young, Looking
Behind the Censorship, J. B. Lipincott Co., 1938) President Wilson in starting his
efforts for the conclusion of the World War declared that we must have "open
covenants, openly arrived at." He quickly abandoned his thought.
No one who has studied the question believes that such a method of publicity is
possible.In the moment that negotiations are started, pressure groups attempt
to "muscle in." An ill-timed speech by one of the parties or a frank declaration
of the concession which are exacted or offered on both sides would quickly
lead to a widespread propaganda to block the negotiations. After a treaty has
been drafted and its terms are fully published, there is ample opportunity for
discussion before it is approved. (The New American Government and Its Works,
James T. Young, 4th Edition, p. 194) (Emphasis and underscoring supplied)
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export
Corp. that the President is the sole organ of the nation in its negotiations with foreign
countries,viz:
"x x x In this vast external realm, with its important, complicated, delicate and
manifold problems, the President alone has the power to speak or listen as a
representative of the nation. He makes treaties with the advice and consent of the
Senate; but he alone negotiates. Into the field of negotiation the Senate cannot
intrude; and Congress itself is powerless to invade it. As Marshall said in his great
arguments of March 7, 1800, in the House of Representatives, "The President is the
sole organ of the nation in its external relations, and its sole representative
with foreign nations." Annals, 6th Cong., col. 613 (Emphasis supplied;
underscoring in the original)
Considering that the information sought through the three (3) questions subject of this Petition
involves the Presidents dealings with a foreign nation, with more reason, this Court is wary of

approving the view that Congress may peremptorily inquire into not only official, documented acts of
the President but even her confidential and informal discussions with her close advisors on the
pretext that said questions serve some vague legislative need. Regardless of who is in office, this
Court can easily foresee unwanted consequences of subjecting a Chief Executive to unrestricted
congressional inquiries done with increased frequency and great publicity. No Executive can
effectively discharge constitutional functions in the face of intense and unchecked legislative
incursion into the core of the Presidents decision-making process, which inevitably would involve
her conversations with a member of her Cabinet.
With respect to respondent Committees invocation of constitutional prescriptions regarding the right
of the people to information and public accountability and transparency, the Court finds nothing in
these arguments to support respondent Committees case.
There is no debate as to the importance of the constitutional right of the people to information and
the constitutional policies on public accountability and transparency. These are the twin postulates
vital to the effective functioning of a democratic government. The citizenry can become prey to the
whims and caprices of those to whom the power has been delegated if they are denied access to
information. And the policies on public accountability and democratic government would certainly be
mere empty words if access to such information of public concern is denied.
In the case at bar, this Court, in upholding executive privilege with respect to three (3) specific
questions, did not in any way curb the publics right to information or diminish the importance of
public accountability and transparency.
This Court did not rule that the Senate has no power to investigate the NBN Project in aid of
legislation. There is nothing in the assailed Decision that prohibits respondent Committees from
inquiring into the NBN Project. They could continue the investigation and even call petitioner Neri to
testify again. He himself has repeatedly expressed his willingness to do so. Our Decision merely
excludes from the scope of respondents investigation the three (3) questions that elicit answers
covered by executive privilege and rules that petitioner cannot be compelled to appear before
respondents to answer the said questions. We have discussed the reasons why these answers are
covered by executive privilege. That there is a recognized public interest in the confidentiality of such
information is a recognized principle in other democratic States. To put it simply, the right to
information is not an absolute right.
Indeed, the constitutional provisions cited by respondent Committees do not espouse an absolute
right to information. By their wording, the intention of the Framers to subject such right to the
regulation of the law is unmistakable. The highlighted portions of the following provisions show the
obvious limitations on the right to information, thus:
Article III, Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to official
records, and to documents, and papers pertaining to official acts, transactions, or decisions,
as well as to government research data used as basis for policy development, shall be
afforded the citizen, subject to such limitations as may be provided by law.
Article II, Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts
and implements a policy of full public disclosure of all its transactions involving public
interest.(Emphasis supplied)
In Chavez v. Presidential Commission on Good Government,40 it was stated that there are no
specific laws prescribing the exact limitations within which the right may be exercised or the

correlative state duty may be obliged. Nonetheless, it enumerated the recognized restrictions to such
rights, among them: (1) national security matters, (2) trade secrets and banking transactions, (3)
criminal matters, and (4) other confidential information. National security matters include state
secrets regarding military and diplomatic matters, as well as information on inter-government
exchanges prior to the conclusion of treaties and executive agreements. It was further held that
even where there is no need to protect such state secrets, they must be "examined in strict
confidence and given scrupulous protection."
Incidentally, the right primarily involved here is the right of respondent Committees to obtain
information allegedly in aid of legislation, not the peoples right to public information. This is the
reason why we stressed in the assailed Decision the distinction between these two rights. As laid
down in Senate v. Ermita, "the demand of a citizen for the production of documents pursuant to his
right to information does not have the same obligatory force as a subpoena duces tecum issued by
Congress" and "neither does the right to information grant a citizen the power to exact testimony
from government officials." As pointed out, these rights belong to Congress, not to the individual
citizen. It is worth mentioning at this juncture that the parties here are respondent Committees and
petitioner Neri and that there was no prior request for information on the part of any individual
citizen. This Court will not be swayed by attempts to blur the distinctions between the Legislature's
right to information in a legitimate legislative inquiry and the public's right to information.
For clarity, it must be emphasized that the assailed Decision did not enjoin respondent
Committees from inquiring into the NBN Project. All that is expected from them is to respect
matters that are covered by executive privilege.
III.
Respondent Committees Failed to Show That
the Communications Elicited by the Three Questions
Are Critical to the Exercise of their Functions
In their Motion for Reconsideration, respondent Committees devote an unusually lengthy discussion
on the purported legislative nature of their entire inquiry, as opposed to an oversight inquiry.
At the outset, it must be clarified that the Decision did not pass upon the nature of respondent
Committees inquiry into the NBN Project. To reiterate, this Court recognizes respondent
Committees power to investigate the NBN Project in aid of legislation. However, this Court cannot
uphold the view that when a constitutionally guaranteed privilege or right is validly invoked by a
witness in the course of a legislative investigation, the legislative purpose of respondent Committees
questions can be sufficiently supported by the expedient of mentioning statutes and/or pending bills
to which their inquiry as a whole may have relevance. The jurisprudential test laid down by this Court
in past decisions on executive privilege is that the presumption of privilege can only be overturned
by a showing of compelling need for disclosure of the information covered by executive privilege.
In the Decision, the majority held that "there is no adequate showing of a compelling need that would
justify the limitation of the privilege and of the unavailability of the information elsewhere by an
appropriate investigating authority." In the Motion for Reconsideration, respondent Committees
argue that the information elicited by the three (3) questions are necessary in the discharge of their
legislative functions, among them, (a) to consider the three (3) pending Senate Bills, and (b) to curb
graft and corruption.
We remain unpersuaded by respondents assertions.

In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to balancing against other
interests and it is necessary to resolve the competing interests in a manner that would preserve the
essential functions of each branch. There, the Court weighed between presidential privilege and the
legitimate claims of the judicial process. In giving more weight to the latter, the Court ruled that the
President's generalized assertion of privilege must yield to the demonstrated, specific need for
evidence in a pending criminal trial.
The Nixon Court ruled that an absolute and unqualified privilege would stand in the way of the
primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions. The said
Court further ratiocinated, through its ruling extensively quoted in the Honorable Chief Justice Puno's
dissenting opinion, as follows:
"... this presumptive privilege must be considered in light of our historic commitment to the
rule of law. This is nowhere more profoundly manifest than in our view that 'the twofold aim
(of criminal justice) is that guild shall not escape or innocence suffer.' Berger v. United
States, 295 U.S., at 88, 55 S.Ct., at 633. We have elected to employ an adversary system of
criminal justice in which the parties contest all issues before a court of law. The need to
develop all relevant facts in the adversary system is both fundamental and
comprehensive. The ends of criminal justice would be defeated if judgments were to
be founded on a partial or speculative presentation of the facts. The very integrity of
the judicial system and public confidence in the system depend on full disclosure of
all the facts, within the framework of the rules of evidence. To ensure that justice is
done, it is imperative to the function of courts that compulsory process be
available for the production of evidence needed either by the prosecution or by the defense.
xxx xxx xxx
The right to the production of all evidence at a criminal trial similarly has constitutional
dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial
theright 'to be confronted with the witness against him' and 'to have compulsory
process for obtaining witnesses in his favor.' Moreover, the Fifth Amendment
also guarantees that no person shall be deprived of liberty without due process of
law. It is the manifest duty of the courts to vindicate those guarantees, and to
accomplish that it is essential that all relevant and admissible evidence be produced.
In this case we must weigh the importance of the general privilege of confidentiality of
Presidential communications in performance of the President's responsibilities
against the inroads of such a privilege on the fair administration of criminal
justice. (emphasis supplied)
xxx xxx xxx
...the allowance of the privilege to withhold evidence that is demonstrably relevant in a
criminal trial would cut deeply into the guarantee of due process of law and gravely
impair the basic function of the courts. A President's acknowledged need for
confidentiality in the communications of his office is general in nature, whereas
theconstitutional need for production of relevant evidence in a criminal proceeding is
specific and central to the fair adjudication of a particular criminal case in the
administration of justice. Without access to specific facts a criminal prosecution may
betotally frustrated. The President's broad interest in confidentiality of
communication willnot be vitiated by disclosure of a limited number of conversations
preliminarily shown to have some bearing on the pending criminal cases.

We conclude that when the ground for asserting privilege as to subpoenaed materials sought
for use in a criminal trial is based only on the generalized interest in confidentiality,
it cannot prevail over the fundamental demands of due process of law in the fair
administration of criminal justice. The generalized assertion of privilege must yield to
the demonstrated, specific need for evidence in a pending criminal trial. (emphasis
supplied)
In the case at bar, we are not confronted with a courts need for facts in order to adjudge liability in a
criminal case but rather with the Senates need for information in relation to its legislative functions.
This leads us to consider once again just how critical is the subject information in the discharge of
respondent Committees functions. The burden to show this is on the respondent Committees, since
they seek to intrude into the sphere of competence of the President in order to gather information
which, according to said respondents, would "aid" them in crafting legislation.
Senate Select Committee on Presidential Campaign Activities v. Nixon41 expounded on the nature of
a legislative inquiry in aid of legislation in this wise:
The sufficiency of the Committee's showing of need has come to depend, therefore, entirely
on whether the subpoenaed materials are critical to the performance of its legislative
functions. There is a clear difference between Congress' legislative tasks and the
responsibility of a grand jury, or any institution engaged in like functions. While fact-finding
by a legislative committee is undeniably a part of its task, legislative judgments
normally depend more on the predicted consequences of proposed legislative actions
and their political acceptability, than on precise reconstruction of past events;
Congress frequently legislates on the basis of conflicting information provided in its hearings.
In contrast, the responsibility of the grand jury turns entirely on its ability to determine
whether there is probable cause to believe that certain named individuals did or did not
commit specific crimes. If, for example, as in Nixon v. Sirica, one of those crimes is perjury
concerning the content of certain conversations, the grand jury's need for the most precise
evidence, the exact text of oral statements recorded in their original form, is undeniable. We
see no comparable need in the legislative process, at least not in the circumstances of
this case. Indeed, whatever force there might once have been in the Committee's argument
that the subpoenaed materials are necessary to its legislative judgments has been
substantially undermined by subsequent events. (Emphasis supplied)
Clearly, the need for hard facts in crafting legislation cannot be equated with the compelling or
demonstratively critical and specific need for facts which is so essential to the judicial power to
adjudicate actual controversies. Also, the bare standard of "pertinency" set in Arnault cannot be
lightly applied to the instant case, which unlike Arnault involves a conflict between two (2) separate,
co-equal and coordinate Branches of the Government.
Whatever test we may apply, the starting point in resolving the conflicting claims between the
Executive and the Legislative Branches is the recognized existence of the presumptive presidential
communications privilege. This is conceded even in the Dissenting Opinion of the Honorable Chief
Justice Puno, which states:
A hard look at Senate v. Ermita ought to yield the conclusion that it bestowed a qualified
presumption in favor of the Presidential communications privilege. As shown in the previous
discussion, U.S. v. Nixon, as well as the other related Nixon cases Sirica and Senate
Select Committee on Presidential Campaign Activities, et al., v. Nixon in the D.C. Court
of Appeals, as well as subsequent cases all recognize that there is a presumptive privilege

in favor of Presidential communications. The Almonte case quoted U.S. v. Nixon and
recognized a presumption in favor of confidentiality of Presidential communications.
The presumption in favor of Presidential communications puts the burden on the respondent Senate
Committees to overturn the presumption by demonstrating their specific need for the information to
be elicited by the answers to the three (3) questions subject of this case, to enable them to craft
legislation. Here, there is simply a generalized assertion that the information is pertinent to the
exercise of the power to legislate and a broad and non-specific reference to pending Senate bills. It
is not clear what matters relating to these bills could not be determined without the said information
sought by the three (3) questions. As correctly pointed out by the Honorable Justice Dante O. Tinga
in his Separate Concurring Opinion:
If respondents are operating under the premise that the president and/or her
executive officials have committed wrongdoings that need to be corrected or
prevented from recurring by remedial legislation, the answer to those three questions
will not necessarily bolster or inhibit respondents from proceeding with such
legislation. They could easily presume the worst of the president in enacting such
legislation.
For sure, a factual basis for situations covered by bills is not critically needed before legislatives
bodies can come up with relevant legislation unlike in the adjudication of cases by courts of law.
Interestingly, during the Oral Argument before this Court, the counsel for respondent Committees
impliedly admitted that the Senate could still come up with legislations even without petitioner
answering the three (3) questions. In other words, the information being elicited is not so critical after
all. Thus:
CHIEF JUSTICE PUNO
So can you tell the Court how critical are these questions to the lawmaking function
of the Senate. For instance, question Number 1 whether the President followed up
the NBN project. According to the other counsel this question has already been
asked, is that correct?
ATTY. AGABIN
Well, the question has been asked but it was not answered, Your Honor.
CHIEF JUSTICE PUNO
Yes. But my question is how critical is this to the lawmaking function of the Senate?
ATTY. AGABIN
I believe it is critical, Your Honor.
CHIEF JUSTICE PUNO
Why?
ATTY. AGABIN

For instance, with respect to the proposed Bill of Senator Miriam Santiago, she would
like to indorse a Bill to include Executive Agreements had been used as a device to
the circumventing the Procurement Law.
CHIEF JUSTICE PUNO
But the question is just following it up.
ATTY. AGABIN
I believe that may be the initial question, Your Honor, because if we look at this
problem in its factual setting as counsel for petitioner has observed, there are
intimations of a bribery scandal involving high government officials.
CHIEF JUSTICE PUNO
Again, about the second question, were you dictated to prioritize this ZTE, is that
critical to the lawmaking function of the Senate? Will it result to the failure of the
Senate to cobble a Bill without this question?
ATTY. AGABIN
I think it is critical to lay the factual foundations for a proposed amendment to the
Procurement Law, Your Honor, because the petitioner had already testified that he
was offered a P200 Million bribe, so if he was offered a P200 Million bribe it is
possible that other government officials who had something to do with the approval
of the contract would be offered the same amount of bribes.
CHIEF JUSTICE PUNO
Again, that is speculative.
ATTY. AGABIN
That is why they want to continue with the investigation, Your Honor.
CHIEF JUSTICE PUNO
How about the third question, whether the President said to go ahead and approve
the project after being told about the alleged bribe. How critical is that to the
lawmaking function of the Senate? And the question is may they craft a Bill a
remedial law without forcing petitioner Neri to answer this question?
ATTY. AGABIN
Well, they can craft it, Your Honor, based on mere speculation. And sound
legislation requires that a proposed Bill should have some basis in fact. 42
The failure of the counsel for respondent Committees to pinpoint the specific need for the
information sought or how the withholding of the information sought will hinder the accomplishment

of their legislative purpose is very evident in the above oral exchanges. Due to the failure of the
respondent Committees to successfully discharge this burden, the presumption in favor of
confidentiality of presidential communication stands. The implication of the said presumption, like
any other, is to dispense with the burden of proof as to whether the disclosure will significantly impair
the Presidents performance of her function. Needless to state this is assumed, by virtue of the
presumption.
Anent respondent Committees bewailing that they would have to "speculate" regarding the
questions covered by the privilege, this does not evince a compelling need for the information
sought. Indeed,Senate Select Committee on Presidential Campaign Activities v. Nixon43 held that
while fact-finding by a legislative committee is undeniably a part of its task, legislative judgments
normally depend more on the predicted consequences of proposed legislative actions and their
political acceptability than on a precise reconstruction of past events. It added that, normally,
Congress legislates on the basis of conflicting information provided in its hearings. We cannot
subscribe to the respondent Committees self-defeating proposition that without the answers to the
three (3) questions objected to as privileged, the distinguished members of the respondent
Committees cannot intelligently craft legislation.
Anent the function to curb graft and corruption, it must be stressed that respondent Committees
need for information in the exercise of this function is not as compelling as in instances when the
purpose of the inquiry is legislative in nature. This is because curbing graft and corruption is merely
an oversight function of Congress.44 And if this is the primary objective of respondent Committees in
asking the three (3) questions covered by privilege, it may even contradict their claim that their
purpose is legislative in nature and not oversight. In any event, whether or not investigating graft and
corruption is a legislative or oversight function of Congress, respondent Committees investigation
cannot transgress bounds set by the Constitution.
In Bengzon, Jr. v. Senate Blue Ribbon Committee,45 this Court ruled:
The "allocation of constitutional boundaries" is a task that this Court must perform
under the Constitution. Moreover, as held in a recent case, "the political question doctrine
neither interposes an obstacle to judicial determination of the rival claims. The jurisdiction to
delimit constitutional boundaries has been given to this Court. It cannot abdicate that
obligation mandated by the 1987 Constitution, although said provision by no means does
away with the applicability of the principle in appropriate cases.46 (Emphasis supplied)
There, the Court further ratiocinated that "the contemplated inquiry by respondent Committee is
not really in aid of legislation because it is not related to a purpose within the jurisdiction of
Congress, since the aim of the investigation is to find out whether or not the relatives of the
President or Mr. Ricardo Lopa had violated Section 5 of R.A. No. 3019, the Anti-Graft and
Corrupt Practices Act, a matter that appears more within the province of the courts rather
than of the Legislature."47 (Emphasis and underscoring supplied)
The general thrust and the tenor of the three (3) questions is to trace the alleged bribery to the Office
of the President.48 While it may be a worthy endeavor to investigate the potential culpability of high
government officials, including the President, in a given government transaction, it is simply not a
task for the Senate to perform. The role of the Legislature is to make laws, not to determine anyones
guilt of a crime or wrongdoing. Our Constitution has not bestowed upon the Legislature the latter
role. Just as the Judiciary cannot legislate, neither can the Legislature adjudicate or prosecute.

Respondent Committees claim that they are conducting an inquiry in aid of legislation and a "search
for truth," which in respondent Committees view appears to be equated with the search for persons
responsible for "anomalies" in government contracts.
No matter how noble the intentions of respondent Committees are, they cannot assume the power
reposed upon our prosecutorial bodies and courts. The determination of who is/are liable for a crime
or illegal activity, the investigation of the role played by each official, the determination of who should
be haled to court for prosecution and the task of coming up with conclusions and finding of facts
regarding anomalies, especially the determination of criminal guilt, are not functions of the Senate.
Congress is neither a law enforcement nor a trial agency. Moreover, it bears stressing that no inquiry
is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress, i.e.
legislation. Investigations conducted solely to gather incriminatory evidence and "punish" those
investigated are indefensible. There is no Congressional power to expose for the sake of
exposure.49In this regard, the pronouncement in Barenblatt v. United States50 is instructive, thus:
Broad as it is, the power is not, however, without limitations. Since Congress may only
investigate into the areas in which it may potentially legislate or appropriate, it cannot inquire
into matters which are within the exclusive province of one of the other branches of the
government. Lacking the judicial power given to the Judiciary, it cannot inquire into matters
that are exclusively the concern of the Judiciary. Neither can it supplant the Executive in
what exclusively belongs to the Executive. (Emphasis supplied.)
At this juncture, it is important to stress that complaints relating to the NBN Project have already
been filed against President Arroyo and other personalities before the Office of the Ombudsman.
Under our Constitution, it is the Ombudsman who has the duty "to investigate any act or omission
of any public official, employee, office or agency when such act or omission appears to be
illegal, unjust, improper, or inefficient."51 The Office of the Ombudsman is the body properly
equipped by the Constitution and our laws to preliminarily determine whether or not the allegations
of anomaly are true and who are liable therefor. The same holds true for our courts upon which the
Constitution reposes the duty to determine criminal guilt with finality. Indeed, the rules of procedure
in the Office of the Ombudsman and the courts are well-defined and ensure that the
constitutionally guaranteed rights of all persons, parties and witnesses alike, are protected
and safeguarded.
Should respondent Committees uncover information related to a possible crime in the course of their
investigation, they have the constitutional duty to refer the matter to the appropriate agency or
branch of government. Thus, the Legislatures need for information in an investigation of graft and
corruption cannot be deemed compelling enough to pierce the confidentiality of information validly
covered by executive privilege. As discussed above, the Legislature can still legislate on graft and
corruption even without the information covered by the three (3) questions subject of the petition.
Corollarily, respondent Committees justify their rejection of petitioners claim of executive privilege on
the ground that there is no privilege when the information sought might involve a crime or illegal
activity, despite the absence of an administrative or judicial determination to that effect.
Significantly, however, in Nixon v. Sirica,52 the showing required to overcome the presumption
favoring confidentiality turned, not on the nature of the presidential conduct that the
subpoenaed material might reveal, but, instead, on the nature and appropriateness of the
function in the performance of which the material was sought, and the degree to which the
material was necessary to its fulfillment.
Respondent Committees assert that Senate Select Committee on Presidential Campaign Activities v.
Nixon does not apply to the case at bar because, unlike in the said case, no impeachment

proceeding has been initiated at present. The Court is not persuaded. While it is true that no
impeachment proceeding has been initiated, however, complaints relating to the NBN Project have
already been filed against President Arroyo and other personalities before the Office of the
Ombudsman. As the Court has said earlier, the prosecutorial and judicial arms of government are
the bodies equipped and mandated by the Constitution and our laws to determine whether or not the
allegations of anomaly in the NBN Project are true and, if so, who should be prosecuted and
penalized for criminal conduct.
Legislative inquiries, unlike court proceedings, are not subject to the exacting standards of evidence
essential to arrive at accurate factual findings to which to apply the law. Hence, Section 10 of the
Senate Rules of Procedure Governing Inquiries in Aid of Legislation provides that "technical rules of
evidence applicable to judicial proceedings which do not affect substantive rights need not be
observed by the Committee." Court rules which prohibit leading, hypothetical, or repetitive questions
or questions calling for a hearsay answer, to name a few, do not apply to a legislative inquiry. Every
person, from the highest public official to the most ordinary citizen, has the right to be presumed
innocent until proven guilty in proper proceedings by a competent court or body.
IV
Respondent Committees Committed Grave
Abuse of Discretion in Issuing the Contempt Order
Respondent Committees insist that they did not commit grave abuse of discretion in issuing the
contempt order because (1) there is no legitimate claim of executive privilege; (2) they did not violate
the requirements laid down in Senate v. Ermita; (3) they issued the contempt order in accordance
with their internal Rules; (4) they did not violate the requirement under Article VI, Section 21 of the
Constitution requiring the publication of their Rules; and (5) their issuance of the contempt order is
not arbitrary or precipitate.
We reaffirm our earlier ruling.
The legitimacy of the claim of executive privilege having been fully discussed in the preceding
pages, we see no reason to discuss it once again.
Respondent Committees second argument rests on the view that the ruling in Senate v. Ermita,
requiring invitations or subpoenas to contain the "possible needed statute which prompted the need
for the inquiry" along with the "usual indication of the subject of inquiry and the questions relative to
and in furtherance thereof" is not provided for by the Constitution and is merely an obiter dictum.
On the contrary, the Court sees the rationale and necessity of compliance with these requirements.
An unconstrained congressional investigative power, like an unchecked Executive, generates its own
abuses. Consequently, claims that the investigative power of Congress has been abused (or has the
potential for abuse) have been raised many times.53 Constant exposure to congressional subpoena
takes its toll on the ability of the Executive to function effectively. The requirements set forth
in Senate v. Ermita are modest mechanisms that would not unduly limit Congress power. The
legislative inquiry must be confined to permissible areas and thus, prevent the "roving commissions"
referred to in the U.S. case, Kilbourn v. Thompson.54 Likewise, witnesses have their constitutional
right to due process. They should be adequately informed what matters are to be covered by the
inquiry. It will also allow them to prepare the pertinent information and documents. To our mind,
these requirements concede too little political costs or burdens on the part of Congress when viewed

vis--vis the immensity of its power of inquiry. The logic of these requirements is well articulated in
the study conducted by William P. Marshall,55 to wit:
A second concern that might be addressed is that the current system allows committees to
continually investigate the Executive without constraint. One process solution addressing
this concern is to require each investigation be tied to a clearly stated purpose. At
present, the charters of some congressional committees are so broad that virtually any
matter involving the Executive can be construed to fall within their province. Accordingly,
investigations can proceed without articulation of specific need or purpose. A requirement for
a more precise charge in order to begin an inquiry should immediately work to limit the initial
scope of the investigation and should also serve to contain the investigation once it is
instituted.Additionally, to the extent clear statements of rules cause legislatures to
pause and seriously consider the constitutional implications of proposed courses of
action in other areas, they would serve that goal in the context of congressional
investigations as well.
The key to this reform is in its details. A system that allows a standing committee to
simply articulate its reasons to investigate pro forma does no more than imposes
minimal drafting burdens. Rather, the system must be designed in a manner that
imposes actual burdens on the committee to articulate its need for investigation and
allows for meaningful debate about the merits of proceeding with the investigation.
(Emphasis supplied)
Clearly, petitioners request to be furnished an advance copy of questions is a reasonable demand
that should have been granted by respondent Committees.
Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007 made no specific
reference to any pending Senate bill. It did not also inform petitioner of the questions to be asked. As
it were, the subpoena merely commanded him to "testify on what he knows relative to the subject
matter under inquiry."
Anent the third argument, respondent Committees contend that their Rules of Procedure Governing
Inquiries in Aid of Legislation (the "Rules") are beyond the reach of this Court. While it is true that
this Court must refrain from reviewing the internal processes of Congress, as a co-equal branch of
government, however, when a constitutional requirement exists, the Court has the duty to look into
Congress compliance therewith. We cannot turn a blind eye to possible violations of the Constitution
simply out of courtesy. In this regard, the pronouncement in Arroyo v. De Venecia56 is enlightening,
thus:
"Cases both here and abroad, in varying forms of expression, all deny to the courts the
power to inquire into allegations that, in enacting a law, a House of Congress failed to
comply with its own rules, in the absence of showing that there was a violation of a
constitutional provision or the rights of private individuals.
United States v. Ballin, Joseph & Co., the rule was stated thus: The Constitution empowers
each House to determine its rules of proceedings. It may not by its rules ignore
constitutional restraints or violate fundamental rights, and there should be a
reasonable relation between the mode or method of proceeding established by the
rule and the result which is sought to be attained."

In the present case, the Courts exercise of its power of judicial review is warranted because there
appears to be a clear abuse of the power of contempt on the part of respondent Committees.
Section 18 of the Rules provides that:
"The Committee, by a vote of majority of all its members, may punish for contempt any
witness before it who disobey any order of the Committee or refuses to be sworn or to testify
or to answer proper questions by the Committee or any of its members." (Emphasis
supplied)
In the assailed Decision, we said that there is a cloud of doubt as to the validity of the contempt
order because during the deliberation of the three (3) respondent Committees, only seven (7)
Senators were present. This number could hardly fulfill the majority requirement needed by
respondentCommittee on Accountability of Public Officers and Investigations which has a
membership of seventeen (17) Senators and respondent Committee on National Defense and
Security which has a membership of eighteen (18) Senators. With respect to respondent Committee
on Trade and Commerce which has a membership of nine (9) Senators, only three (3) members
were present.57These facts prompted us to quote in the Decision the exchanges between Senators
Alan Peter Cayetano and Aquilino Pimentel, Jr. whereby the former raised the issue of lack of the
required majority to deliberate and vote on the contempt order.
When asked about such voting during the March 4, 2008 hearing before this Court, Senator Francis
Pangilinan stated that any defect in the committee voting had been cured because two-thirds of the
Senators effectively signed for the Senate in plenary session. 58
Obviously the deliberation of the respondent Committees that led to the issuance of the contempt
order is flawed. Instead of being submitted to a full debate by all the members of the respondent
Committees, the contempt order was prepared and thereafter presented to the other members for
signing. As a result, the contempt order which was issued on January 30, 2008 was not a faithful
representation of the proceedings that took place on said date. Records clearly show that not all of
those who signed the contempt order were present during the January 30, 2008 deliberation when
the matter was taken up.
Section 21, Article VI of the Constitution states that:
The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of person appearing in or affected by such inquiries shall be
respected. (Emphasis supplied)
All the limitations embodied in the foregoing provision form part of the witness settled expectation. If
the limitations are not observed, the witness settled expectation is shattered. Here, how could there
be a majority vote when the members in attendance are not enough to arrive at such majority?
Petitioner has the right to expect that he can be cited in contempt only through a majority vote in a
proceeding in which the matter has been fully deliberated upon. There is a greater measure of
protection for the witness when the concerns and objections of the members are fully articulated in
such proceeding. We do not believe that respondent Committees have the discretion to set aside
their rules anytime they wish. This is especially true here where what is involved is the contempt
power. It must be stressed that the Rules are not promulgated for their benefit. More than anybody
else, it is the witness who has the highest stake in the proper observance of the Rules.
Having touched the subject of the Rules, we now proceed to respondent Committees fourth
argument. Respondent Committees argue that the Senate does not have to publish its Rules

because the same was published in 1995 and in 2006. Further, they claim that the Senate is a
continuing body; thus, it is not required to republish the Rules, unless the same is repealed or
amended.
On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification.
Certainly, there is no debate that the Senate as an institution is "continuing", as it is not dissolved
as an entity with each national election or change in the composition of its members. However, in the
conduct of its day-to-day business the Senate of each Congress acts separately and independently
of the Senate of the Congress before it. The Rules of the Senate itself confirms this when it states:
RULE XLIV
UNFINISHED BUSINESS
SEC. 123. Unfinished business at the end of the session shall be taken up at the next
session in the same status.
All pending matters and proceedings shall terminate upon the expiration of one (1)
Congress, but may be taken by the succeeding Congress as if present for the first time.
(emphasis supplied)
Undeniably from the foregoing, all pending matters and proceedings, i.e. unpassed bills and even
legislative investigations, of the Senate of a particular Congress are considered terminated upon
the expiration of that Congress and it is merely optional on the Senate of the succeeding Congress
to take up such unfinished matters, not in the same status, but as if presented for the first time.
The logic and practicality of such a rule is readily apparent considering that the Senate of the
succeeding Congress (which will typically have a different composition as that of the previous
Congress) should not be bound by the acts and deliberations of the Senate of which they had no
part. If the Senate is a continuing body even with respect to the conduct of its business, then
pending matters will not be deemed terminated with the expiration of one Congress but will, as a
matter of course, continue into the next Congress with the same status.
This dichotomy of the continuity of the Senate as an institution and of the opposite nature of the
conduct of its business is reflected in its Rules. The Rules of the Senate (i.e. the Senates main rules
of procedure) states:
RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES
SEC. 136. At the start of each session in which the Senators elected in the preceding
elections shall begin their term of office, the President may endorse the Rules to the
appropriate committee for amendment or revision.
The Rules may also be amended by means of a motion which should be presented at least
one day before its consideration, and the vote of the majority of the Senators present in the
session shall be required for its approval. (emphasis supplied)
RULE LII
DATE OF TAKING EFFECT
SEC. 137. These Rules shall take effect on the date of their adoption and shall remain in
force until they are amended or repealed. (emphasis supplied)

Section 136 of the Senate Rules quoted above takes into account the new composition of the
Senate after an election and the possibility of the amendment or revision of the Rules at the start
of eachsession in which the newly elected Senators shall begin their term.
However, it is evident that the Senate has determined that its main rules are intended to be valid
from the date of their adoption until they are amended or repealed. Such language is conspicuously
absent from the Rules. The Rules simply state "(t)hese Rules shall take effect seven (7) days after
publication in two (2) newspapers of general circulation." 59 The latter does not explicitly provide for
the continued effectivity of such rules until they are amended or repealed. In view of the difference in
the language of the two sets of Senate rules, it cannot be presumed that the Rules (on legislative
inquiries) would continue into the next Congress. The Senate of the next Congress may easily adopt
different rules for its legislative inquiries which come within the rule on unfinished business.
The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted in
accordance with the duly published rules of procedure is categorical. It is incumbent upon the
Senate to publish the rules for its legislative inquiries in each Congress or otherwise make the
published rules clearly state that the same shall be effective in subsequent Congresses or until they
are amended or repealed to sufficiently put public on notice.
If it was the intention of the Senate for its present rules on legislative inquiries to be effective even in
the next Congress, it could have easily adopted the same language it had used in its main rules
regarding effectivity.
Lest the Court be misconstrued, it should likewise be stressed that not all orders issued or
proceedings conducted pursuant to the subject Rules are null and void. Only those that result in
violation of the rights of witnesses should be considered null and void, considering that the rationale
for the publication is to protect the rights of witnesses as expressed in Section 21, Article VI of the
Constitution. Sans such violation, orders and proceedings are considered valid and effective.
Respondent Committees last argument is that their issuance of the contempt order is not precipitate
or arbitrary. Taking into account the totality of circumstances, we find no merit in their argument.
As we have stressed before, petitioner is not an unwilling witness, and contrary to the assertion of
respondent Committees, petitioner did not assume that they no longer had any other questions for
him. He repeatedly manifested his willingness to attend subsequent hearings and respond to new
matters. His only request was that he be furnished a copy of the new questions in advance to enable
him to adequately prepare as a resource person. He did not attend the November 20, 2007 hearing
because Executive Secretary Ermita requested respondent Committees to dispense with his
testimony on the ground of executive privilege. Note that petitioner is an executive official under the
direct control and supervision of the Chief Executive. Why punish petitioner for contempt when he
was merely directed by his superior? Besides, save for the three (3) questions, he was very
cooperative during the September 26, 2007 hearing.
On the part of respondent Committees, this Court observes their haste and impatience. Instead of
ruling on Executive Secretary Ermitas claim of executive privilege, they curtly dismissed it as
unsatisfactory and ordered the arrest of petitioner. They could have informed petitioner of their ruling
and given him time to decide whether to accede or file a motion for reconsideration. After all, he is
not just an ordinary witness; he is a high- ranking official in a co-equal branch of government. He is
an alter ego of the President. The same haste and impatience marked the issuance of the contempt
order, despite the absence of the majority of the members of the respondent Committees, and their
subsequent disregard of petitioners motion for reconsideration alleging the pendency of his petition
for certiorari before this Court.

On a concluding note, we are not unmindful of the fact that the Executive and the Legislature are
political branches of government. In a free and democratic society, the interests of these branches
inevitably clash, but each must treat the other with official courtesy and respect. This Court
wholeheartedly concurs with the proposition that it is imperative for the continued health of our
democratic institutions that we preserve the constitutionally mandated checks and balances among
the different branches of government.
In the present case, it is respondent Committees contention that their determination on the validity of
executive privilege should be binding on the Executive and the Courts. It is their assertion
that theirinternal procedures and deliberations cannot be inquired into by this Court supposedly in
accordance with the principle of respect between co-equal branches of government. Interestingly, it
is a courtesy that they appear to be unwilling to extend to the Executive (on the matter of executive
privilege) or this Court (on the matter of judicial review). It moves this Court to wonder: In respondent
Committees paradigm of checks and balances, what are the checks to the Legislatures allencompassing, awesome power of investigation? It is a power, like any other, that is susceptible to
grave abuse.
While this Court finds laudable the respondent Committees well-intentioned efforts to ferret out
corruption, even in the highest echelons of government, such lofty intentions do not validate or
accord to Congress powers denied to it by the Constitution and granted instead to the other
branches of government.
There is no question that any story of government malfeasance deserves an inquiry into its veracity.
As respondent Committees contend, this is founded on the constitutional command of transparency
and public accountability. The recent clamor for a "search for truth" by the general public, the
religious community and the academe is an indication of a concerned citizenry, a nation that
demands an accounting of an entrusted power. However, the best venue for this noble undertaking
is not in the political branches of government. The customary partisanship and the absence of
generally accepted rules on evidence are too great an obstacle in arriving at the truth or achieving
justice that meets the test of the constitutional guarantee of due process of law. We believe the
people deserve a more exacting "search for truth" than the process here in question, if that is its
objective.
WHEREFORE, respondent Committees Motion for Reconsideration dated April 8, 2008 is
herebyDENIED.
SO ORDERED.

G.R. No. 174153

October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED

VOTERS,Petitioners,
vs.
THE COMMISSION ON ELECTIONS, Respondent.
x--------------------------------------------------------x
ALTERNATIVE LAW GROUPS, INC., Intervenor.
x ------------------------------------------------------ x
ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III,
BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE, and CARLOS P. MEDINA, JR., Intervenors.
x------------------------------------------------------ x
ATTY. PETE QUIRINO QUADRA, Intervenor.
x--------------------------------------------------------x
BAYAN represented by its Chairperson Dr. Carolina Pagaduan-Araullo, BAYAN MUNA
represented by its Chairperson Dr. Reynaldo Lesaca, KILUSANG MAYO UNO represented by
its Secretary General Joel Maglunsod, HEAD represented by its Secretary General Dr. Gene
Alzona Nisperos, ECUMENICAL BISHOPS FORUM represented by Fr. Dionito Cabillas,
MIGRANTE represented by its Chairperson Concepcion Bragas-Regalado, GABRIELA
represented by its Secretary General Emerenciana de Jesus, GABRIELA WOMEN'S PARTY
represented by Sec. Gen. Cristina Palabay, ANAKBAYAN represented by Chairperson Eleanor
de Guzman, LEAGUE OF FILIPINO STUDENTS represented by Chair Vencer Crisostomo
Palabay, JOJO PINEDA of the League of Concerned Professionals and Businessmen, DR.
DARBY SANTIAGO of the Solidarity of Health Against Charter Change, DR. REGINALD
PAMUGAS of Health Action for Human Rights, Intervenors.
x--------------------------------------------------------x
LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA THERESA HONTIVEROSBARAQUEL,Intervenors.
x--------------------------------------------------------x
ARTURO M. DE CASTRO, Intervenor.
x ------------------------------------------------------- x
TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor.
x---------------------------------------------------------x

LUWALHATI RICASA ANTONINO, Intervenor.

x ------------------------------------------------------- x
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS
C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR.,
FORTUNATO P. AGUAS, and AMADO GAT INCIONG, Intervenors.
x ------------------------------------------------------- x
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO BAYA, Intervenors.
x -------------------------------------------------------- x
PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and MR.
VICTORINO F. BALAIS, Intervenors.
x -------------------------------------------------------- x
SENATE OF THE PHILIPPINES, represented by its President, MANUEL VILLAR, JR., Intervenor.
x ------------------------------------------------------- x
SULONG BAYAN MOVEMENT FOUNDATION, INC., Intervenor.
x ------------------------------------------------------- x
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L.
SALVADOR, and RANDALL TABAYOYONG, Intervenors.
x -------------------------------------------------------- x
INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU PROVINCE
CHAPTERS, Intervenors.
x --------------------------------------------------------x
SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and SENATORS SERGIO R.
OSMENA III, JAMBY MADRIGAL, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO
LACSON, Intervenors.
x -----------------------------------------------------x
JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, Intervenors.
x -----------------------------------------------------x
G.R. No. 174299

October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A.V. SAGUISAG, Petitioners,
vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR., and
Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO, NICODEMO T. FERRER, and John Doe and Peter
Doe,, Respondent.

DECISION

CARPIO, J.:
The Case
These are consolidated petitions on the Resolution dated 31 August 2006 of the Commission on
Elections ("COMELEC") denying due course to an initiative petition to amend the 1987 Constitution.
Antecedent Facts
On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and Erico B.
Aumentado ("Lambino Group"), with other groups1 and individuals, commenced gathering signatures
for an initiative petition to change the 1987 Constitution. On 25 August 2006, the Lambino Group
filed a petition with the COMELEC to hold a plebiscite that will ratify their initiative petition under
Section 5(b) and (c)2 and Section 73 of Republic Act No. 6735 or the Initiative and Referendum Act
("RA 6735").
The Lambino Group alleged that their petition had the support of 6,327,952 individuals constituting at
least twelveper centum (12%) of all registered voters, with each legislative district represented by at
least three per centum(3%) of its registered voters. The Lambino Group also claimed that
COMELEC election registrars had verified the signatures of the 6.3 million individuals.
The Lambino Group's initiative petition changes the 1987 Constitution by modifying Sections 1-7 of
Article VI (Legislative Department)4 and Sections 1-4 of Article VII (Executive Department) 5 and by
adding Article XVIII entitled "Transitory Provisions."6 These proposed changes will shift the present
Bicameral-Presidential system to a Unicameral-Parliamentary form of government. The Lambino
Group prayed that after due publication of their petition, the COMELEC should submit the following
proposition in a plebiscite for the voters' ratification:
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987
CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT
BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND
PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT
FROM ONE SYSTEM TO THE OTHER?
On 30 August 2006, the Lambino Group filed an Amended Petition with the COMELEC indicating
modifications in the proposed Article XVIII (Transitory Provisions) of their initiative. 7

Xxx
The Ruling of the Court
There is no merit to the petition.
The Lambino Group miserably failed to comply with the basic requirements of the Constitution for
conducting a people's initiative. Thus, there is even no need to revisit Santiago, as the present
petition warrants dismissal based alone on the Lambino Group's glaring failure to comply with the
basic requirements of the Constitution. For following the Court's ruling in Santiago, no grave abuse
of discretion is attributable to the Commision on Elections.
1. The Initiative Petition Does Not Comply with Section 2, Article XVII of the Constitution on
Direct Proposal by the People
Section 2, Article XVII of the Constitution is the governing constitutional provision that allows a
people's initiative to propose amendments to the Constitution. This section states:
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of
registered voters of which every legislative district must be represented by at least three per
centum of the registered voters therein. x x x x (Emphasis supplied)
The deliberations of the Constitutional Commission vividly explain the meaning of an amendment
"directly proposed by the people through initiative upon a petition," thus:
MR. RODRIGO: Let us look at the mechanics. Let us say some voters want to propose a
constitutional amendment. Is the draft of the proposed constitutional amendment ready
to be shown to the people when they are asked to sign?
MR. SUAREZ: That can be reasonably assumed, Madam President.
MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them
before they sign. Now, who prepares the draft?
MR. SUAREZ: The people themselves, Madam President.
MR. RODRIGO: No, because before they sign there is already a draft shown to
them and they are asked whether or not they want to propose this constitutional
amendment.
MR. SUAREZ: As it is envisioned, any Filipino can prepare that proposal and pass it
around for signature.13 (Emphasis supplied)
Clearly, the framers of the Constitution intended that the "draft of the proposed constitutional
amendment" should be "ready and shown" to the people "before" they sign such proposal. The
framers plainly stated that "before they sign there is already a draft shown to them." The framers
also "envisioned" that the people should sign on the proposal itself because the proponents must
"prepare that proposal and pass it around for signature."

The essence of amendments "directly proposed by the people through initiative upon a
petition" is that the entire proposal on its face is a petition by the people. This means two
essential elements must be present. First, the people must author and thus sign the entire proposal.
No agent or representative can sign on their behalf. Second, as an initiative upon a petition, the
proposal must be embodied in a petition.
These essential elements are present only if the full text of the proposed amendments is first
shown to the people who express their assent by signing such complete proposal in a
petition. Thus, an amendment is "directly proposed by the people through initiative upon a
petition" only if the people sign on a petition that contains the full text of the proposed
amendments.
The full text of the proposed amendments may be either written on the face of the petition, or
attached to it. If so attached, the petition must state the fact of such attachment. This is an
assurance that every one of the several millions of signatories to the petition had seen the full text of
the proposed amendments before signing. Otherwise, it is physically impossible, given the time
constraint, to prove that every one of the millions of signatories had seen the full text of the proposed
amendments before signing.
The framers of the Constitution directly borrowed14 the concept of people's initiative from the United
States where various State constitutions incorporate an initiative clause. In almost all States 15 which
allow initiative petitions,the unbending requirement is that the people must first see the full text
of the proposed amendments before they sign to signify their assent, and that the people
must sign on an initiative petition that contains the full text of the proposed amendments.16
The rationale for this requirement has been repeatedly explained in several decisions of various
courts. Thus, inCapezzuto v. State Ballot Commission, the Supreme Court of Massachusetts,
affirmed by the First Circuit Court of Appeals, declared:
[A] signature requirement would be meaningless if the person supplying the
signature has not first seen what it is that he or she is signing. Further, and more
importantly, loose interpretation of the subscription requirement can pose a significant
potential for fraud. A person permitted to describe orally the contents of an initiative petition
to a potential signer, without the signer having actually examined the petition, could easily
mislead the signer by, for example, omitting, downplaying, or even flatly misrepresenting,
portions of the petition that might not be to the signer's liking. This danger seems
particularly acute when, in this case, the person giving the description is the drafter of
the petition, who obviously has a vested interest in seeing that it gets the requisite
signatures to qualify for the ballot.17 (Boldfacing and underscoring supplied)
Likewise, in Kerr v. Bradbury,18 the Court of Appeals of Oregon explained:
The purposes of "full text" provisions that apply to amendments by initiative commonly are
described in similar terms. x x x (The purpose of the full text requirement is to provide
sufficient information so that registered voters can intelligently evaluate whether to
sign the initiative petition."); x x x (publication of full text of amended constitutional
provision required because it is "essential for the elector to have x x x the section which is
proposed to be added to or subtracted from. If he is to vote intelligently, he must have this
knowledge. Otherwise in many instances he would be required to vote in the dark.")
(Emphasis supplied)

Moreover, "an initiative signer must be informed at the time of signing of the nature and effect of
that which is proposed" and failure to do so is "deceptive and misleading" which renders the
initiative void.19
Section 2, Article XVII of the Constitution does not expressly state that the petition must set forth the
full text of the proposed amendments. However, the deliberations of the framers of our Constitution
clearly show that the framers intended to adopt the relevant American jurisprudence on people's
initiative. In particular, the deliberations of the Constitutional Commission explicitly reveal that the
framers intended that the people must first see the full text of the proposed amendments
before they sign, and that the people must sign on a petition containing such full text. Indeed,
Section 5(b) of Republic Act No. 6735, the Initiative and Referendum Act that the Lambino Group
invokes as valid, requires that the people must sign the "petition x x x as signatories."
The proponents of the initiative secure the signatures from the people. The proponents secure the
signatures in their private capacity and not as public officials. The proponents are not disinterested
parties who can impartially explain the advantages and disadvantages of the proposed amendments
to the people. The proponents present favorably their proposal to the people and do not present the
arguments against their proposal. The proponents, or their supporters, often pay those who gather
the signatures.
Thus, there is no presumption that the proponents observed the constitutional requirements in
gathering the signatures. The proponents bear the burden of proving that they complied with the
constitutional requirements in gathering the signatures - that the petition contained, or
incorporated by attachment, the full text of the proposed amendments.
The Lambino Group did not attach to their present petition with this Court a copy of the paper that
the people signed as their initiative petition. The Lambino Group submitted to this Court a copy of
a signature sheet20 after the oral arguments of 26 September 2006 when they filed their
Memorandum on 11 October 2006. The signature sheet with this Court during the oral arguments
was the signature sheet attached21 to the opposition in intervention filed on 7 September 2006 by
intervenor Atty. Pete Quirino-Quadra.
The signature sheet attached to Atty. Quadra's opposition and the signature sheet attached to the
Lambino Group's Memorandum are the same. We reproduce below the signature sheet in full:

Province:

City/Municipality:

No. of
Verified

Legislative District: Barangay:

Signatures:

PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND VII OF THE
1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT
BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM OF
GOVERNMENT, IN ORDER TO ACHIEVE GREATER EFFICIENCY, SIMPLICITY AND ECONOMY
IN GOVERNMENT; AND PROVIDING AN ARTICLE XVIII AS TRANSITORY PROVISIONS FOR
THE ORDERLY SHIFT FROM ONE SYSTEM TO ANOTHER?"

I hereby APPROVE the proposed amendment to the 1987 Constitution. My signature herein which
shall form part of the petition for initiative to amend the Constitution signifies my support for the filing
thereof.

Precinct
Number

Name
Last Name, First Name,
M.I.

Address

Birthdate

Signature

Verification

MM/DD/YY

10

_________________
Barangay Official
(Print Name and Sign)

_________________
Witness
(Print Name and Sign)

__________________
Witness
(Print Name and Sign)

There is not a single word, phrase, or sentence of text of the Lambino Group's proposed
changes in the signature sheet. Neither does the signature sheet state that the text of the

proposed changes is attached to it. Petitioner Atty. Raul Lambino admitted this during the oral
arguments before this Court on 26 September 2006.
The signature sheet merely asks a question whether the people approve a shift from the BicameralPresidential to the Unicameral-Parliamentary system of government. The signature sheet does not
show to the people the draft of the proposed changes before they are asked to sign the
signature sheet. Clearly, the signature sheet is not the "petition" that the framers of the Constitution
envisioned when they formulated the initiative clause in Section 2, Article XVII of the Constitution.
Petitioner Atty. Lambino, however, explained that during the signature-gathering from February to
August 2006, the Lambino Group circulated, together with the signature sheets, printed copies of the
Lambino Group's draft petition which they later filed on 25 August 2006 with the COMELEC. When
asked if his group also circulated the draft of their amended petition filed on 30 August 2006 with the
COMELEC, Atty. Lambino initially replied that they circulated both. However, Atty. Lambino changed
his answer and stated that what his group circulated was the draft of the 30 August 2006 amended
petition, not the draft of the 25 August 2006 petition.
The Lambino Group would have this Court believe that they prepared the draft of the 30 August
2006 amended petition almost seven months earlier in February 2006 when they started
gathering signatures. Petitioner Erico B. Aumentado's "Verification/Certification" of the 25 August
2006 petition, as well as of the 30 August 2006 amended petition, filed with the COMELEC, states as
follows:
I have caused the preparation of the foregoing [Amended] Petition in my personal capacity
as a registered voter, for and on behalf of the Union of Local Authorities of the
Philippines, as shown by ULAP Resolution No. 2006-02 hereto attached, and as
representative of the mass of signatories hereto. (Emphasis supplied)
The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the present petition.
However, the "Official Website of the Union of Local Authorities of the Philippines" 22 has posted the
full text of Resolution No. 2006-02, which provides:
RESOLUTION NO. 2006-02
RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S CONSULTATIVE
COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND
REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION
WHEREAS, there is a need for the Union of Local Authorities of the Philippines (ULAP) to
adopt a common stand on the approach to support the proposals of the People's
Consultative Commission on Charter Change;
WHEREAS, ULAP maintains its unqualified support to the agenda of Her Excellency
President Gloria Macapagal-Arroyo for constitutional reforms as embodied in the ULAP Joint
Declaration for Constitutional Reforms signed by the members of the ULAP and the majority
coalition of the House of Representatives in Manila Hotel sometime in October 2005;
WHEREAS, the People's Consultative Commission on Charter Change created by Her
Excellency to recommend amendments to the 1987 Constitution has submitted its final
report sometime in December 2005;

WHEREAS, the ULAP is mindful of the current political developments in Congress which
militates against the use of the expeditious form of amending the 1987 Constitution;
WHEREAS, subject to the ratification of its institutional members and the failure of Congress
to amend the Constitution as a constituent assembly, ULAP has unanimously agreed to
pursue the constitutional reform agenda through People's Initiative and Referendum without
prejudice to other pragmatic means to pursue the same;
WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT ALL THE
MEMBER-LEAGUES OF THE UNION OF LOCAL AUTHORITIES OF THE PHILIPPINES
(ULAP) SUPPORT THE PORPOSALS (SIC) OF THE PEOPLE'S CONSULATATIVE (SIC)
COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND
REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION;
DONE, during the ULAP National Executive Board special meeting held on 14 January 2006
at the Century Park Hotel, Manila.23 (Underscoring supplied)
ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to prepare the 25 August
2006 petition, or the 30 August 2006 amended petition, filed with the COMELEC. ULAP Resolution
No. 2006-02 "support(s) the porposals (sic) of the Consulatative (sic) Commission on Charter
Change through people's initiative and referendum as a mode of amending the 1987 Constitution."
The proposals of the Consultative Commission24 arevastly different from the proposed changes of
the Lambino Group in the 25 August 2006 petition or 30 August 2006 amended petition filed with the
COMELEC.
For example, the proposed revisions of the Consultative Commission affect all provisions of the
existing Constitution, from the Preamble to the Transitory Provisions. The proposed revisions
have profound impact on the Judiciary and the National Patrimony provisions of the existing
Constitution, provisions that the Lambino Group's proposed changes do not touch. The Lambino
Group's proposed changes purport to affect only Articles VI and VII of the existing Constitution,
including the introduction of new Transitory Provisions.
The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six months before the
filing of the 25 August 2006 petition or the 30 August 2006 amended petition with the COMELEC.
However, ULAP Resolution No. 2006-02 does not establish that ULAP or the Lambino Group caused
the circulation of the draft petition, together with the signature sheets, six months before the filing
with the COMELEC. On the contrary, ULAP Resolution No. 2006-02 casts grave doubt on the
Lambino Group's claim that they circulated the draft petition together with the signature
sheets. ULAP Resolution No. 2006-02 does not refer at all to the draft petition or to the
Lambino Group's proposed changes.
In their Manifestation explaining their amended petition before the COMELEC, the Lambino Group
declared:
After the Petition was filed, Petitioners belatedly realized that the proposed amendments
alleged in the Petition, more specifically, paragraph 3 of Section 4 and paragraph 2 of
Section 5 of the Transitory Provisions were inaccurately stated and failed to correctly reflect
their proposed amendments.
The Lambino Group did not allege that they were amending the petition because the amended
petition was what they had shown to the people during the February to August 2006 signature-

gathering. Instead, the Lambino Group alleged that the petition of 25 August 2006 "inaccurately
stated and failed to correctly reflect their proposed amendments."
The Lambino Group never alleged in the 25 August 2006 petition or the 30 August 2006 amended
petition with the COMELEC that they circulated printed copies of the draft petition together with the
signature sheets. Likewise, the Lambino Group did not allege in their present petition before this
Court that they circulated printed copies of the draft petition together with the signature sheets. The
signature sheets do not also contain any indication that the draft petition is attached to, or circulated
with, the signature sheets.
It is only in their Consolidated Reply to the Opposition-in-Interventions that the Lambino Group first
claimed that they circulated the "petition for initiative filed with the COMELEC," thus:
[T]here is persuasive authority to the effect that "(w)here there is not (sic) fraud, a signer
who did not read the measure attached to a referendum petition cannot question his
signature on the ground that he did not understand the nature of the act." [82 C.J.S.
S128h. Mo. State v. Sullivan, 224, S.W. 327, 283 Mo. 546.] Thus, the registered voters
who signed the signature sheets circulated together with the petition for initiative filed
with the COMELEC below, are presumed to have understood the proposition contained in
the petition. (Emphasis supplied)
The Lambino Group's statement that they circulated to the people "the petition for initiative filed
with the COMELEC" appears an afterthought, made after the intervenors Integrated Bar of the
Philippines (Cebu City Chapter and Cebu Province Chapters) and Atty. Quadra had pointed out that
the signature sheets did not contain the text of the proposed changes. In their Consolidated Reply,
the Lambino Group alleged that they circulated "the petition for initiative" but failed to mention
the amended petition. This contradicts what Atty. Lambino finally stated during the oral arguments
that what they circulated was the draft of the amended petition of 30 August 2006.
The Lambino Group cites as authority Corpus Juris Secundum, stating that "a signer who did not
read the measure attached to a referendum petition cannot question his signature on the ground
that he did not understand the nature of the act." The Lambino Group quotes an authority that cites a
proposed changeattached to the petition signed by the people. Even the authority the Lambino
Group quotes requires that the proposed change must be attached to the petition. The same
authority the Lambino Group quotes requires the people to sign on the petition itself.
Indeed, it is basic in American jurisprudence that the proposed amendment must be incorporated
with, or attached to, the initiative petition signed by the people. In the present initiative, the Lambino
Group's proposed changes were not incorporated with, or attached to, the signature sheets. The
Lambino Group's citation of Corpus Juris Secundum pulls the rug from under their feet.
It is extremely doubtful that the Lambino Group prepared, printed, circulated, from February to
August 2006 during the signature-gathering period, the draft of the petition or amended petition they
filed later with the COMELEC. The Lambino Group are less than candid with this Court in their
belated claim that they printed and circulated, together with the signature sheets, the petition or
amended petition. Nevertheless, even assumingthe Lambino Group circulated the amended
petition during the signature-gathering period, the Lambino Group admitted circulating
only very limited copies of the petition.
During the oral arguments, Atty. Lambino expressly admitted that they printed only 100,000
copies of the draft petition they filed more than six months later with the COMELEC. Atty.
Lambino added that he also asked other supporters to print additional copies of the draft petition but

he could not state with certainty how many additional copies the other supporters printed. Atty.
Lambino could only assure this Court of the printing of 100,000 copies because he himself
caused the printing of these 100,000 copies.
Likewise, in the Lambino Group's Memorandum filed on 11 October 2006, the Lambino Group
expressly admits that "petitioner Lambino initiated the printing and reproduction of 100,000
copies of the petition for initiative x x x."25 This admission binds the Lambino Group and
establishes beyond any doubt that the Lambino Group failed to show the full text of the
proposed changes to the great majority of the people who signed the signature sheets.
Thus, of the 6.3 million signatories, only 100,000 signatories could have received with certainty one
copy each of the petition, assuming a 100 percent distribution with no wastage. If Atty. Lambino and
company attached one copy of the petition to each signature sheet, only 100,000 signature sheets
could have circulated with the petition. Each signature sheet contains space for ten signatures.
Assuming ten people signed each of these 100,000 signature sheets with the attached petition, the
maximum number of people who saw the petition before they signed the signature sheets would not
exceed 1,000,000.
With only 100,000 printed copies of the petition, it would be physically impossible for all or a great
majority of the 6.3 million signatories to have seen the petition before they signed the signature
sheets. The inescapable conclusion is that the Lambino Group failed to show to the 6.3
million signatories the full text of the proposed changes. If ever, not more than one million
signatories saw the petition before they signed the signature sheets.
In any event, the Lambino Group's signature sheets do not contain the full text of the proposed
changes, either on the face of the signature sheets, or as attachment with an indication in the
signature sheet of such attachment.Petitioner Atty. Lambino admitted this during the oral
arguments, and this admission binds the Lambino Group. This fact is also obvious from a
mere reading of the signature sheet. This omission is fatal. The failure to so include the text of
the proposed changes in the signature sheets renders the initiative void for non-compliance with the
constitutional requirement that the amendment must be "directly proposed by the people through
initiative upon a petition." The signature sheet is not the "petition" envisioned in the initiative
clause of the Constitution.
For sure, the great majority of the 6.3 million people who signed the signature sheets did not see the
full text of the proposed changes before signing. They could not have known the nature and effect of
the proposed changes, among which are:
1. The term limits on members of the legislature will be lifted and thus members of
Parliament can be re-elected indefinitely;26
2. The interim Parliament can continue to function indefinitely until its members, who are
almost all the present members of Congress, decide to call for new parliamentary elections.
Thus, the members of the interim Parliament will determine the expiration of their own
term of office; 27
3. Within 45 days from the ratification of the proposed changes, the interim Parliament
shall convene to propose further amendments or revisions to the Constitution.28
These three specific amendments are not stated or even indicated in the Lambino Group's signature
sheets. The people who signed the signature sheets had no idea that they were proposing these
amendments. These three proposed changes are highly controversial. The people could not have

inferred or divined these proposed changes merely from a reading or rereading of the contents of the
signature sheets.
During the oral arguments, petitioner Atty. Lambino stated that he and his group assured the
people during the signature-gathering that the elections for the regular Parliament would be
held during the 2007 local elections if the proposed changes were ratified before the 2007 local
elections. However, the text of the proposed changes belies this.
The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the amended petition,
states:
Section 5(2). The interim Parliament shall provide for the election of the members of
Parliament, which shall be synchronized and held simultaneously with the election of
all local government officials. x x x x (Emphasis supplied)
Section 5(2) does not state that the elections for the regular Parliament will be held simultaneously
with the 2007 local elections. This section merely requires that the elections for the regular
Parliament shall be held simultaneously with the local elections without specifying the year.
Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed changes, could have
easily written the word "next" before the phrase "election of all local government officials." This would
have insured that the elections for the regular Parliament would be held in the next local elections
following the ratification of the proposed changes. However, the absence of the word "next" allows
the interim Parliament to schedule the elections for the regular Parliament simultaneously
with any future local elections.
Thus, the members of the interim Parliament will decide the expiration of their own term of office.
This allows incumbent members of the House of Representatives to hold office beyond their current
three-year term of office, and possibly even beyond the five-year term of office of regular members
of the Parliament. Certainly, this is contrary to the representations of Atty. Lambino and his
group to the 6.3 million people who signed the signature sheets. Atty. Lambino and his group
deceived the 6.3 million signatories, and even the entire nation.
This lucidly shows the absolute need for the people to sign an initiative petition that contains the full
text of the proposed amendments to avoid fraud or misrepresentation. In the present initiative, the
6.3 million signatories had to rely on the verbal representations of Atty. Lambino and his group
because the signature sheets did not contain the full text of the proposed changes. The result is
a grand deception on the 6.3 million signatories who were led to believe that the proposed changes
would require the holding in 2007 of elections for the regular Parliament simultaneously with the
local elections.
The Lambino Group's initiative springs another surprise on the people who signed the signature
sheets. The proposed changes mandate the interim Parliament to make further amendments or
revisions to the Constitution. The proposed Section 4(4), Article XVIII on Transitory Provisions,
provides:
Section 4(4). Within forty-five days from ratification of these amendments, the interim
Parliament shall convene to propose amendments to, or revisions of, this
Constitution consistent with the principles of local autonomy, decentralization and a strong
bureaucracy. (Emphasis supplied)

During the oral arguments, Atty. Lambino stated that this provision is a "surplusage" and the Court
and the people should simply ignore it. Far from being a surplusage, this provision invalidates the
Lambino Group's initiative.
Section 4(4) is a subject matter totally unrelated to the shift from the Bicameral-Presidential to the
Unicameral-Parliamentary system. American jurisprudence on initiatives outlaws this as logrolling when the initiative petition incorporates an unrelated subject matter in the same petition. This puts
the people in a dilemma since they can answer only either yes or no to the entire proposition, forcing
them to sign a petition that effectively contains two propositions, one of which they may find
unacceptable.
Under American jurisprudence, the effect of logrolling is to nullify the entire proposition and not
only the unrelated subject matter. Thus, in Fine v. Firestone,29 the Supreme Court of Florida
declared:
Combining multiple propositions into one proposal constitutes "logrolling," which, if
our judicial responsibility is to mean anything, we cannot permit. The very broadness of
the proposed amendment amounts to logrolling because the electorate cannot know what it
is voting on - the amendment's proponents' simplistic explanation reveals only the tip of the
iceberg. x x x x The ballot must give the electorate fair notice of the proposed amendment
being voted on. x x x x The ballot language in the instant case fails to do that. The very
broadness of the proposal makes it impossible to state what it will affect and effect and
violates the requirement that proposed amendments embrace only one subject. (Emphasis
supplied)
Logrolling confuses and even deceives the people. In Yute Air Alaska v. McAlpine,30 the Supreme
Court of Alaska warned against "inadvertence, stealth and fraud" in logrolling:
Whenever a bill becomes law through the initiative process, all of the problems that the singlesubject rule was enacted to prevent are exacerbated. There is a greater danger of logrolling, or the
deliberate intermingling of issues to increase the likelihood of an initiative's passage, and there is a
greater opportunity for "inadvertence, stealth and fraud" in the enactment-by-initiative
process. The drafters of an initiative operate independently of any structured or supervised process.
They often emphasize particular provisions of their proposition, while remaining silent on other (more
complex or less appealing) provisions, when communicating to the public. x x x Indeed, initiative
promoters typically use simplistic advertising to present their initiative to potential petitionsigners and eventual voters. Many voters will never read the full text of the initiative before the
election. More importantly, there is no process for amending or splitting the several provisions in an
initiative proposal. These difficulties clearly distinguish the initiative from the legislative process.
(Emphasis supplied)
Thus, the present initiative appears merely a preliminary step for further amendments or revisions to
be undertaken by the interim Parliament as a constituent assembly. The people who signed the
signature sheets could not have known that their signatures would be used to propose an
amendment mandating the interim Parliament to propose further amendments or revisions to the
Constitution.
Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the interim Parliament
to amend or revise again the Constitution within 45 days from ratification of the proposed
changes, or before the May 2007 elections. In the absence of the proposed Section 4(4), the
interim Parliament has the discretion whether to amend or revise again the Constitution. With the

proposed Section 4(4), the initiative proponents want the interim Parliament mandated to
immediately amend or revise again the Constitution.
However, the signature sheets do not explain the reason for this rush in amending or revising again
so soon the Constitution. The signature sheets do not also explain what specific amendments or
revisions the initiative proponents want the interim Parliament to make, and why there is a need for
such further amendments or revisions. The people are again left in the dark to fathom the nature
and effect of the proposed changes. Certainly, such an initiative is not "directly proposed by the
people" because the people do not even know the nature and effect of the proposed changes.
There is another intriguing provision inserted in the Lambino Group's amended petition of 30 August
2006. The proposed Section 4(3) of the Transitory Provisions states:
Section 4(3). Senators whose term of office ends in 2010 shall be members of Parliament
until noon of the thirtieth day of June 2010.
After 30 June 2010, not one of the present Senators will remain as member of Parliament if the
interim Parliament does not schedule elections for the regular Parliament by 30 June 2010.
However, there is no counterpart provision for the present members of the House of Representatives
even if their term of office will all end on 30 June 2007, three years earlier than that of half of the
present Senators. Thus, all the present members of the House will remain members of the interim
Parliament after 30 June 2010.
The term of the incumbent President ends on 30 June 2010. Thereafter, the Prime Minister exercises
all the powers of the President. If the interim Parliament does not schedule elections for the regular
Parliament by 30 June 2010, the Prime Minister will come only from the present members of the
House of Representatives to theexclusion of the present Senators.
The signature sheets do not explain this discrimination against the Senators. The 6.3 million people
who signed the signature sheets could not have known that their signatures would be used
to discriminate against the Senators. They could not have known that their signatures would
be used to limit, after 30 June 2010, the interim Parliament's choice of Prime Minister only to
members of the existing House of Representatives.
An initiative that gathers signatures from the people without first showing to the people the full text
of the proposed amendments is most likely a deception, and can operate as a gigantic fraud on the
people. That is why the Constitution requires that an initiative must be "directly proposed by the
people x x x in a petition" - meaning that the people must sign on a petition that contains the full
text of the proposed amendments. On so vital an issue as amending the nation's fundamental law,
the writing of the text of the proposed amendments cannot be hidden from the people under a
general or special power of attorney to unnamed, faceless, and unelected individuals.
The Constitution entrusts to the people the power to directly propose amendments to the
Constitution. This Court trusts the wisdom of the people even if the members of this Court do not
personally know the people who sign the petition. However, this trust emanates from a
fundamental assumption: the full text of the proposed amendment is first shown to the
people before they sign the petition, not after they have signed the petition.
In short, the Lambino Group's initiative is void and unconstitutional because it dismally fails to
comply with the requirement of Section 2, Article XVII of the Constitution that the initiative must be
"directly proposed by the people through initiative upon a petition."

2. The Initiative Violates Section 2, Article XVII of the Constitution Disallowing Revision
through Initiatives
A people's initiative to change the Constitution applies only to an amendment of the Constitution and
not to its revision. In contrast, Congress or a constitutional convention can propose both
amendments and revisions to the Constitution. Article XVII of the Constitution provides:
ARTICLE XVII
AMENDMENTS OR REVISIONS
Sec. 1. Any amendment to, or revision of, this Constitution may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its Members, or
(2) A constitutional convention.
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative x x x. (Emphasis supplied)
Article XVII of the Constitution speaks of three modes of amending the Constitution. The first mode
is through Congress upon three-fourths vote of all its Members. The second mode is through a
constitutional convention. The third mode is through a people's initiative.
Section 1 of Article XVII, referring to the first and second modes, applies to "[A]ny amendment to, or
revision of, this Constitution." In contrast, Section 2 of Article XVII, referring to the third mode,
applies only to "[A]mendments to this Constitution." This distinction was intentional as shown by the
following deliberations of the Constitutional Commission:
MR. SUAREZ: Thank you, Madam President.
May we respectfully call the attention of the Members of the Commission that pursuant to the
mandate given to us last night, we submitted this afternoon a complete Committee Report
No. 7 which embodies the proposed provision governing the matter of initiative. This is now
covered by Section 2 of the complete committee report. With the permission of the Members,
may I quote Section 2:
The people may, after five years from the date of the last plebiscite held, directly propose
amendments to this Constitution thru initiative upon petition of at least ten percent of the
registered voters.
This completes the blanks appearing in the original Committee Report No. 7. This proposal
was suggested on the theory that this matter of initiative, which came about because of the
extraordinary developments this year, has to be separated from the traditional modes of
amending the Constitution as embodied in Section 1. The committee members felt that
this system of initiative should be limited to amendments to the Constitution and
should not extend to the revision of the entire Constitution, so we removed it from the
operation of Section 1 of the proposed Article on Amendment or Revision. x x x x
xxxx

MS. AQUINO: [I] am seriously bothered by providing this process of initiative as a separate
section in the Article on Amendment. Would the sponsor be amenable to accepting an
amendment in terms of realigning Section 2 as another subparagraph (c) of Section 1,
instead of setting it up as another separate section as if it were a self-executing provision?
MR. SUAREZ: We would be amenable except that, as we clarified a while ago, this process
of initiative is limited to the matter of amendment and should not expand into a
revision which contemplates a total overhaul of the Constitution. That was the sense
that was conveyed by the Committee.
MS. AQUINO: In other words, the Committee was attempting to distinguish the
coverage of modes (a) and (b) in Section 1 to include the process of revision;
whereas, the process of initiation to amend, which is given to the public, would only
apply to amendments?
MR. SUAREZ: That is right. Those were the terms envisioned in the Committee.
MS. AQUINO: I thank the sponsor; and thank you, Madam President.
xxxx
MR. MAAMBONG: My first question: Commissioner Davide's proposed amendment on
line 1 refers to "amendments." Does it not cover the word "revision" as defined by
Commissioner Padilla when he made the distinction between the words
"amendments" and "revision"?
MR. DAVIDE: No, it does not, because "amendments" and "revision" should be
covered by Section 1. So insofar as initiative is concerned, it can only relate to
"amendments" not "revision."
MR. MAAMBONG: Thank you.31 (Emphasis supplied)
There can be no mistake about it. The framers of the Constitution intended, and wrote, a clear
distinction between "amendment" and "revision" of the Constitution. The framers intended, and
wrote, that only Congress or a constitutional convention may propose revisions to the Constitution.
The framers intended, and wrote, that a people's initiative may propose only amendments to the
Constitution. Where the intent and language of the Constitution clearly withhold from the people the
power to propose revisions to the Constitution, the people cannot propose revisions even as they
are empowered to propose amendments.
This has been the consistent ruling of state supreme courts in the United States. Thus,
in McFadden v. Jordan,32 the Supreme Court of California ruled:
The initiative power reserved by the people by amendment to the Constitution x x x
applies only to the proposing and the adopting or rejecting of 'laws and amendments
to the Constitution' and does not purport to extend to a constitutional revision. x x x x
It is thus clear that a revision of the Constitution may be accomplished only through
ratification by the people of a revised constitution proposed by a convention called for that
purpose as outlined hereinabove. Consequently if the scope of the proposed initiative
measure (hereinafter termed 'the measure') now before us is so broad that if such measure
became law a substantial revision of our present state Constitution would be effected, then

the measure may not properly be submitted to the electorate until and unless it is first agreed
upon by a constitutional convention, and the writ sought by petitioner should issue. x x x x
(Emphasis supplied)
Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:33
It is well established that when a constitution specifies the manner in which it may be
amended or revised, it can be altered by those who favor amendments, revision, or other
change only through the use of one of the specified means. The constitution itself recognizes
that there is a difference between an amendment and a revision; and it is obvious from an
examination of the measure here in question that it is not an amendment as that term is
generally understood and as it is used in Article IV, Section 1. The document appears to be
based in large part on the revision of the constitution drafted by the 'Commission for
Constitutional Revision' authorized by the 1961 Legislative Assembly, x x x and submitted to
the 1963 Legislative Assembly. It failed to receive in the Assembly the two-third's majority
vote of both houses required by Article XVII, Section 2, and hence failed of adoption, x x x.
While differing from that document in material respects, the measure sponsored by the
plaintiffs is, nevertheless, a thorough overhauling of the present constitution x x x.
To call it an amendment is a misnomer.
Whether it be a revision or a new constitution, it is not such a measure as can be submitted
to the people through the initiative. If a revision, it is subject to the requirements of Article
XVII, Section 2(1); if a new constitution, it can only be proposed at a convention called in the
manner provided in Article XVII, Section 1. x x x x
Similarly, in this jurisdiction there can be no dispute that a people's initiative can only propose
amendments to the Constitution since the Constitution itself limits initiatives to amendments. There
can be no deviation from the constitutionally prescribed modes of revising the Constitution. A
popular clamor, even one backed by 6.3 million signatures, cannot justify a deviation from the
specific modes prescribed in the Constitution itself.
As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:34
It is a fundamental principle that a constitution can only be revised or amended in the
manner prescribed by the instrument itself, and that any attempt to revise a
constitution in a manner other than the one provided in the instrument is almost
invariably treated as extra-constitutional and revolutionary. x x x x "While it is
universally conceded that the people are sovereign and that they have power to adopt a
constitution and to change their own work at will, they must, in doing so, act in an orderly
manner and according to the settled principles of constitutional law. And where the people, in
adopting a constitution, have prescribed the method by which the people may alter or amend
it, an attempt to change the fundamental law in violation of the self-imposed restrictions, is
unconstitutional." x x x x (Emphasis supplied)
This Court, whose members are sworn to defend and protect the Constitution, cannot shirk from its
solemn oath and duty to insure compliance with the clear command of the Constitution that a
people's initiative may only amend, never revise, the Constitution.

The question is, does the Lambino Group's initiative constitute an amendment or revision of the
Constitution? If the Lambino Group's initiative constitutes a revision, then the present petition should
be dismissed for being outside the scope of Section 2, Article XVII of the Constitution.
Courts have long recognized the distinction between an amendment and a revision of a constitution.
One of the earliest cases that recognized the distinction described the fundamental difference in this
manner:
[T]he very term "constitution" implies an instrument of a permanent and abiding nature, and
the provisions contained therein for its revision indicate the will of the people that the
underlying principles upon which it rests, as well as the substantial entirety of the
instrument, shall be of a like permanent and abiding nature. On the other hand, the
significance of the term "amendment" implies such an addition or change within the lines of
the original instrument as will effect an improvement, or better carry out the purpose for
which it was framed.35 (Emphasis supplied)
Revision broadly implies a change that alters a basic principle in the constitution, like altering the
principle of separation of powers or the system of checks-and-balances. There is also revision if the
change alters the substantial entirety of the constitution, as when the change affects
substantial provisions of the constitution. On the other hand, amendment broadly refers to a
change that adds, reduces, or deletes without altering the basic principle involved. Revision
generally affects several provisions of the constitution, while amendment generally affects only the
specific provision being amended.
In California where the initiative clause allows amendments but not revisions to the constitution just
like in our Constitution, courts have developed a two-part test: the quantitative test and the
qualitative test. The quantitative test asks whether the proposed change is "so extensive in its
provisions as to change directly the 'substantial entirety' of the constitution by the deletion or
alteration of numerous existing provisions."36 The court examines only the number of provisions
affected and does not consider the degree of the change.
The qualitative test inquires into the qualitative effects of the proposed change in the constitution.
The main inquiry is whether the change will "accomplish such far reaching changes in the nature of
our basic governmental plan as to amount to a revision."37 Whether there is an alteration in the
structure of government is a proper subject of inquiry. Thus, "a change in the nature of [the] basic
governmental plan" includes "change in its fundamental framework or the fundamental powers of its
Branches."38 A change in the nature of the basic governmental plan also includes changes that
"jeopardize the traditional form of government and the system of check and balances." 39
Under both the quantitative and qualitative tests, the Lambino Group's initiative is a revision and not
merely an amendment. Quantitatively, the Lambino Group's proposed changes overhaul two articles
- Article VI on the Legislature and Article VII on the Executive - affecting a total of 105 provisions in
the entire Constitution.40Qualitatively, the proposed changes alter substantially the basic plan of
government, from presidential to parliamentary, and from a bicameral to a unicameral legislature.
A change in the structure of government is a revision of the Constitution, as when the three great coequal branches of government in the present Constitution are reduced into two. This alters the
separation of powers in the Constitution. A shift from the present Bicameral-Presidential system
to a Unicameral-Parliamentary system is a revision of the Constitution. Merging the legislative and
executive branches is a radical change in the structure of government.

The abolition alone of the Office of the President as the locus of Executive Power alters the
separation of powers and thus constitutes a revision of the Constitution. Likewise, the abolition alone
of one chamber of Congress alters the system of checks-and-balances within the legislature and
constitutes a revision of the Constitution.
By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a
Unicameral-Parliamentary system, involving the abolition of the Office of the President and the
abolition of one chamber of Congress, is beyond doubt a revision, not a mere amendment. On the
face alone of the Lambino Group's proposed changes, it is readily apparent that the changes
will radically alter the framework of government as set forth in the Constitution. Father Joaquin
Bernas, S.J., a leading member of the Constitutional Commission, writes:
An amendment envisages an alteration of one or a few specific and separable provisions. The
guiding original intention of an amendment is to improve specific parts or to add new provisions
deemed necessary to meet new conditions or to suppress specific portions that may have become
obsolete or that are judged to be dangerous. In revision, however, the guiding original intention and
plan contemplates a re-examination of the entire document, or of provisions of the document which
have over-all implications for the entire document, to determine how and to what extent they should
be altered. Thus, for instance a switch from the presidential system to a parliamentary system
would be a revision because of its over-all impact on the entire constitutional structure. So
would a switch from a bicameral system to a unicameral system be because of its effect on
other important provisions of the Constitution.41 (Emphasis supplied)
In Adams v. Gunter,42 an initiative petition proposed the amendment of the Florida State constitution
to shift from a bicameral to a unicameral legislature. The issue turned on whether the initiative
"was defective and unauthorized where [the] proposed amendment would x x x affect several other
provisions of [the] Constitution." The Supreme Court of Florida, striking down the initiative as outside
the scope of the initiative clause, ruled as follows:
The proposal here to amend Section 1 of Article III of the 1968 Constitution to provide for a
Unicameral Legislature affects not only many other provisions of the Constitution but
provides for a change in the form of the legislative branch of government, which has
been in existence in the United States Congress and in all of the states of the nation, except
one, since the earliest days. It would be difficult to visualize a more revolutionary
change. The concept of a House and a Senate is basic in the American form of
government. It would not only radically change the whole pattern of government in this
state and tear apart the whole fabric of the Constitution, but would even affect the
physical facilities necessary to carry on government.
xxxx
We conclude with the observation that if such proposed amendment were adopted by the
people at the General Election and if the Legislature at its next session should fail to submit
further amendments to revise and clarify the numerous inconsistencies and conflicts which
would result, or if after submission of appropriate amendments the people should refuse to
adopt them, simple chaos would prevail in the government of this State. The same result
would obtain from an amendment, for instance, of Section 1 of Article V, to provide for only a
Supreme Court and Circuit Courts-and there could be other examples too numerous to
detail. These examples point unerringly to the answer.
The purpose of the long and arduous work of the hundreds of men and women and many
sessions of the Legislature in bringing about the Constitution of 1968 was to eliminate

inconsistencies and conflicts and to give the State a workable, accordant, homogenous and
up-to-date document. All of this could disappear very quickly if we were to hold that it could
be amended in the manner proposed in the initiative petition here.43 (Emphasis supplied)
The rationale of the Adams decision applies with greater force to the present petition. The Lambino
Group's initiative not only seeks a shift from a bicameral to a unicameral legislature, it also seeks to
merge the executive and legislative departments. The initiative in Adams did not even touch the
executive department.
In Adams, the Supreme Court of Florida enumerated 18 sections of the Florida Constitution that
would be affected by the shift from a bicameral to a unicameral legislature. In the Lambino Group's
present initiative, no less than 105 provisions of the Constitution would be affected based on
the count of Associate Justice Romeo J. Callejo, Sr.44 There is no doubt that the Lambino Group's
present initiative seeks far more radical changes in the structure of government than the initiative
in Adams.
The Lambino Group theorizes that the difference between "amendment" and "revision" is only one
of procedure, not of substance. The Lambino Group posits that when a deliberative body drafts
and proposes changes to the Constitution, substantive changes are called "revisions"
because members of the deliberative body work full-time on the changes. However, the same
substantive changes, when proposed through an initiative, are called "amendments" because the
changes are made by ordinary people who do not make an "occupation, profession, or
vocation" out of such endeavor.
Thus, the Lambino Group makes the following exposition of their theory in their Memorandum:
99. With this distinction in mind, we note that the constitutional provisions expressly provide
for both "amendment" and "revision" when it speaks of legislators and constitutional
delegates, while the same provisions expressly provide only for "amendment" when it speaks
of the people. It would seem that the apparent distinction is based on the actual experience
of the people, that on one hand the common people in general are not expected to work fulltime on the matter of correcting the constitution because that is not their occupation,
profession or vocation; while on the other hand, the legislators and constitutional convention
delegates are expected to work full-time on the same matter because that is their
occupation, profession or vocation. Thus, the difference between the words "revision"
and "amendment" pertain only to the process or procedure of coming up with the
corrections, for purposes of interpreting the constitutional provisions.
100. Stated otherwise, the difference between "amendment" and "revision" cannot
reasonably be in the substance or extent of the correction. x x x x (Underlining in the
original; boldfacing supplied)
The Lambino Group in effect argues that if Congress or a constitutional convention had drafted the
same proposed changes that the Lambino Group wrote in the present initiative, the changes would
constitute a revision of the Constitution. Thus, the Lambino Group concedes that the proposed
changes in the present initiative constitute a revision if Congress or a constitutional
convention had drafted the changes. However, since the Lambino Group as private individuals
drafted the proposed changes, the changes are merely amendments to the Constitution. The
Lambino Group trivializes the serious matter of changing the fundamental law of the land.
The express intent of the framers and the plain language of the Constitution contradict the
Lambino Group's theory. Where the intent of the framers and the language of the Constitution are

clear and plainly stated, courts do not deviate from such categorical intent and language. 45 Any
theory espousing a construction contrary to such intent and language deserves scant consideration.
More so, if such theory wreaks havoc by creating inconsistencies in the form of government
established in the Constitution. Such a theory, devoid of any jurisprudential mooring and inviting
inconsistencies in the Constitution, only exposes the flimsiness of the Lambino Group's position. Any
theory advocating that a proposed change involving a radical structural change in government does
not constitute a revision justly deserves rejection.
The Lambino Group simply recycles a theory that initiative proponents in American jurisdictions have
attempted to advance without any success. In Lowe v. Keisling,46 the Supreme Court of
Oregon rejected this theory, thus:
Mabon argues that Article XVII, section 2, does not apply to changes to the constitution
proposed by initiative. His theory is that Article XVII, section 2 merely provides a
procedure by which the legislature can propose a revision of the constitution, but it
does not affect proposed revisions initiated by the people.
Plaintiffs argue that the proposed ballot measure constitutes a wholesale change to the
constitution that cannot be enacted through the initiative process. They assert that the
distinction between amendment and revision is determined by reviewing the scope and
subject matter of the proposed enactment, and that revisions are not limited to "a formal
overhauling of the constitution." They argue that this ballot measure proposes far reaching
changes outside the lines of the original instrument, including profound impacts on existing
fundamental rights and radical restructuring of the government's relationship with a defined
group of citizens. Plaintiffs assert that, because the proposed ballot measure "will refashion
the most basic principles of Oregon constitutional law," the trial court correctly held that it
violated Article XVII, section 2, and cannot appear on the ballot without the prior approval of
the legislature.
We first address Mabon's argument that Article XVII, section 2(1), does not prohibit revisions
instituted by initiative. In Holmes v. Appling, x x x, the Supreme Court concluded that a
revision of the constitution may not be accomplished by initiative, because of the provisions
of Article XVII, section 2. After reviewing Article XVII, section1, relating to proposed
amendments, the court said:
"From the foregoing it appears that Article IV, Section 1, authorizes the use of the initiative as
a means of amending the Oregon Constitution, but it contains no similar sanction for its use
as a means of revising the constitution." x x x x
It then reviewed Article XVII, section 2, relating to revisions, and said: "It is the only section of
the constitution which provides the means for constitutional revision and it excludes the idea
that an individual, through the initiative, may place such a measure before the electorate." x
xxx
Accordingly, we reject Mabon's argument that Article XVII, section 2, does not apply to
constitutional revisions proposed by initiative. (Emphasis supplied)
Similarly, this Court must reject the Lambino Group's theory which negates the express intent of the
framers and the plain language of the Constitution.
We can visualize amendments and revisions as a spectrum, at one end green for amendments and
at the other end red for revisions. Towards the middle of the spectrum, colors fuse and difficulties

arise in determining whether there is an amendment or revision. The present initiative is indisputably
located at the far end of the red spectrum where revision begins. The present initiative seeks a
radical overhaul of the existing separation of powers among the three co-equal departments of
government, requiring far-reaching amendments in several sections and articles of the Constitution.
Where the proposed change applies only to a specific provision of the Constitution without affecting
any other section or article, the change may generally be considered an amendment and not a
revision. For example, a change reducing the voting age from 18 years to 15 years 47 is an
amendment and not a revision. Similarly, a change reducing Filipino ownership of mass media
companies from 100 percent to 60 percent is an amendment and not a revision. 48 Also, a change
requiring a college degree as an additional qualification for election to the Presidency is an
amendment and not a revision.49
The changes in these examples do not entail any modification of sections or articles of the
Constitution other than the specific provision being amended. These changes do not also affect the
structure of government or the system of checks-and-balances among or within the three branches.
These three examples are located at the far green end of the spectrum, opposite the far red end
where the revision sought by the present petition is located.
However, there can be no fixed rule on whether a change is an amendment or a revision. A change
in a single word of one sentence of the Constitution may be a revision and not an amendment. For
example, the substitution of the word "republican" with "monarchic" or "theocratic" in Section 1,
Article II50 of the Constitution radically overhauls the entire structure of government and the
fundamental ideological basis of the Constitution. Thus, each specific change will have to be
examined case-by-case, depending on how it affects other provisions, as well as how it affects the
structure of government, the carefully crafted system of checks-and-balances, and the underlying
ideological basis of the existing Constitution.
Since a revision of a constitution affects basic principles, or several provisions of a constitution,
a deliberative body with recorded proceedings is best suited to undertake a revision. A revision
requires harmonizing not only several provisions, but also the altered principles with those that
remain unaltered. Thus, constitutions normally authorize deliberative bodies like constituent
assemblies or constitutional conventions to undertake revisions. On the other hand, constitutions
allow people's initiatives, which do not have fixed and identifiable deliberative bodies or recorded
proceedings, to undertake only amendments and not revisions.
In the present initiative, the Lambino Group's proposed Section 2 of the Transitory Provisions states:
Section 2. Upon the expiration of the term of the incumbent President and Vice President,
with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution
which shall hereby be amended and Sections 18 and 24 which shall be deleted, all other
Sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad
seriatim up to 26, unless they are inconsistent with the Parliamentary system of
government, in which case, they shall be amended to conform with a unicameral
parliamentary form of government; x x x x (Emphasis supplied)
The basic rule in statutory construction is that if a later law is irreconcilably inconsistent with a prior
law, the later law prevails. This rule also applies to construction of constitutions. However, the
Lambino Group's draft of Section 2 of the Transitory Provisions turns on its head this rule of
construction by stating that in case of such irreconcilable inconsistency, the earlier provision "shall
be amended to conform with a unicameral parliamentary form of government." The effect is to

freeze the two irreconcilable provisions until the earlier one "shall be amended," which requires a
future separate constitutional amendment.
Realizing the absurdity of the need for such an amendment, petitioner Atty. Lambino readily
conceded during the oral arguments that the requirement of a future amendment is a "surplusage."
In short, Atty. Lambino wants to reinstate the rule of statutory construction so that the later provision
automatically prevails in case of irreconcilable inconsistency. However, it is not as simple as that.
The irreconcilable inconsistency envisioned in the proposed Section 2 of the Transitory Provisions is
not between a provision in Article VI of the 1987 Constitution and a provision in the proposed
changes. The inconsistency is between a provision in Article VI of the 1987 Constitution and the
"Parliamentary system of government," and the inconsistency shall be resolved in favor of a
"unicameral parliamentary form of government."
Now, what "unicameral parliamentary form of government" do the Lambino Group's proposed
changes refer to the Bangladeshi, Singaporean, Israeli, or New Zealand models, which are
among the few countries withunicameral parliaments? The proposed changes could not possibly
refer to the traditional and well-known parliamentary forms of government the British, French,
Spanish, German, Italian, Canadian, Australian, or Malaysian models, which have
all bicameral parliaments. Did the people who signed the signature sheets realize that they were
adopting the Bangladeshi, Singaporean, Israeli, or New Zealand parliamentary form of government?
This drives home the point that the people's initiative is not meant for revisions of the Constitution
but only for amendments. A shift from the present Bicameral-Presidential to a UnicameralParliamentary system requires harmonizing several provisions in many articles of the Constitution.
Revision of the Constitution through a people's initiative will only result in gross absurdities in the
Constitution.
In sum, there is no doubt whatsoever that the Lambino Group's initiative is a revision and not an
amendment. Thus, the present initiative is void and unconstitutional because it violates Section 2,
Article XVII of the Constitution limiting the scope of a people's initiative to "[A]mendments to this
Constitution."
3. A Revisit of Santiago v. COMELEC is Not Necessary
The present petition warrants dismissal for failure to comply with the basic requirements of Section
2, Article XVII of the Constitution on the conduct and scope of a people's initiative to amend the
Constitution. There is no need to revisit this Court's ruling in Santiago declaring RA 6735
"incomplete, inadequate or wanting in essential terms and conditions" to cover the system of
initiative to amend the Constitution. An affirmation or reversal of Santiagowill not change the
outcome of the present petition. Thus, this Court must decline to revisit Santiago which effectively
ruled that RA 6735 does not comply with the requirements of the Constitution to implement the
initiative clause on amendments to the Constitution.
This Court must avoid revisiting a ruling involving the constitutionality of a statute if the case before
the Court can be resolved on some other grounds. Such avoidance is a logical consequence of the
well-settled doctrine that courts will not pass upon the constitutionality of a statute if the case can be
resolved on some other grounds.51
Nevertheless, even assuming that RA 6735 is valid to implement the constitutional provision on
initiatives to amend the Constitution, this will not change the result here because the present petition
violates Section 2, Article XVII of the Constitution. To be a valid initiative, the present initiative

must first comply with Section 2, Article XVII of the Constitution even before complying with RA
6735.
Even then, the present initiative violates Section 5(b) of RA 6735 which requires that the "petition for
an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number
of registered voters as signatories." Section 5(b) of RA 6735 requires that the people must sign
the "petition x x x as signatories."
The 6.3 million signatories did not sign the petition of 25 August 2006 or the amended petition of 30
August 2006 filed with the COMELEC. Only Atty. Lambino, Atty. Demosthenes B. Donato, and
Atty. Alberto C. Agra signed the petition and amended petition as counsels for "Raul L.
Lambino and Erico B. Aumentado, Petitioners." In the COMELEC, the Lambino Group, claiming
to act "together with" the 6.3 million signatories, merely attached the signature sheets to the petition
and amended petition. Thus, the petition and amended petition filed with the COMELEC did not even
comply with the basic requirement of RA 6735 that the Lambino Group claims as valid.
The Lambino Group's logrolling initiative also violates Section 10(a) of RA 6735 stating, "No petition
embracing more than one (1) subject shall be submitted to the electorate; x x x." The proposed
Section 4(4) of the Transitory Provisions, mandating the interim Parliament to propose further
amendments or revisions to the Constitution, is a subject matter totally unrelated to the shift in the
form of government. Since the present initiative embraces more than one subject matter, RA 6735
prohibits submission of the initiative petition to the electorate. Thus, even if RA 6735 is valid, the
Lambino Group's initiative will still fail.

Xxx

G.R. No. 169777*

April 20, 2006

SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his capacity as

Senate President, JUAN M. FLAVIER, in his capacity as Senate President Pro Tempore,
FRANCIS N. PANGILINAN, in his capacity as Majority Leader, AQUILINO Q. PIMENTEL, JR., in
his capacity as Minority Leader, SENATORS RODOLFO G. BIAZON, "COMPANERA" PIA S.
CAYETANO, JINGGOY EJERCITO ESTRADA, LUISA "LOI" EJERCITO ESTRADA, JUAN
PONCE ENRILE, RICHARD J. GORDON, PANFILO M. LACSON, ALFREDO S.LIM, M. A.
MADRIGAL, SERGIO OSMENA III, RALPH G. RECTO, and MAR ROXAS, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of President
Gloria Macapagal-Arroyo, and anyone acting in his stead and in behalf of the President of the
Philippines,Respondents.
x-------------------------x
G.R. No. 169659

April 20, 2006

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

April 20, 2006

FRANCISCO I. CHAVEZ, Petitioner,

vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary, AVELINO J. CRUZ, JR., in his
capacity as Secretary of Defense, and GENEROSO S. SENGA, in his capacity as AFP Chief of
Staff, Respondents.
x-------------------------x
G.R. No. 169667

April 20, 2006

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

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

April 20, 2006

PDP- LABAN, Petitioner,

vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.

x-------------------------x
G.R. No. 171246

April 20, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR

AMORANDO, ALICIA A. RISOS-VIDAL, FILEMON C. ABELITA III, MANUEL P. LEGASPI, J. B.
JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA, and the INTEGRATED
BAR FOR THE PHILIPPINES,Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.
DECISION
CARPIO MORALES, J.:
A transparent government is one of the hallmarks of a truly republican state. Even in the early history
of republican thought, however, it has been recognized that the head of government may keep
certain information confidential in pursuit of the public interest. Explaining the reason for vesting
executive power in only one magistrate, a distinguished delegate to the U.S. Constitutional
Convention said: "Decision, activity, secrecy, and dispatch will generally characterize the
proceedings of one man, in a much more eminent degree than the proceedings of any greater
number; and in proportion as the number is increased, these qualities will be diminished." 1
History has been witness, however, to the fact that the power to withhold information lends itself to
abuse, hence, the necessity to guard it zealously.
The present consolidated petitions for certiorari and prohibition proffer that the President has abused
such power by issuing Executive Order No. 464 (E.O. 464) last September 28, 2005. They thus pray
for its declaration as null and void for being unconstitutional.
In resolving the controversy, this Court shall proceed with the recognition that the issuance under
review has come from a co-equal branch of government, which thus entitles it to a strong
presumption of constitutionality. Once the challenged order is found to be indeed violative of the
Constitution, it is duty-bound to declare it so. For the Constitution, being the highest expression of
the sovereign will of the Filipino people, must prevail over any issuance of the government that
contravenes its mandates.
In the exercise of its legislative power, the Senate of the Philippines, through its various Senate
Committees, conducts inquiries or investigations in aid of legislation which call for, inter alia, the
attendance of officials and employees of the executive department, bureaus, and offices including
those employed in Government Owned and Controlled Corporations, the Armed Forces of the
Philippines (AFP), and the Philippine National Police (PNP).
On September 21 to 23, 2005, the Committee of the Senate as a whole issued invitations to various
officials of the Executive Department for them to appear on September 29, 2005 as resource
speakers in a public hearing on the railway project of the North Luzon Railways Corporation with the
China National Machinery and Equipment Group (hereinafter North Rail Project). The public hearing
was sparked by a privilege speech of Senator Juan Ponce Enrile urging the Senate to investigate
the alleged overpricing and other unlawful provisions of the contract covering the North Rail Project.

The Senate Committee on National Defense and Security likewise issued invitations 2 dated
September 22, 2005 to the following officials of the AFP: the Commanding General of the Philippine
Army, Lt. Gen. Hermogenes C. Esperon; Inspector General of the AFP Vice Admiral Mateo M.
Mayuga; Deputy Chief of Staff for Intelligence of the AFP Rear Admiral Tirso R. Danga; Chief of the
Intelligence Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant Superintendent of the
Philippine Military Academy (PMA) Brig. Gen. Francisco V. Gudani; and Assistant Commandant,
Corps of Cadets of the PMA, Col. Alexander F. Balutan, for them to attend as resource persons in a
public hearing scheduled on September 28, 2005 on the following: (1) Privilege Speech of Senator
Aquilino Q. Pimentel Jr., delivered on June 6, 2005 entitled "Bunye has Provided Smoking Gun or
has Opened a Can of Worms that Show Massive Electoral Fraud in the Presidential Election of May
2005"; (2) Privilege Speech of Senator Jinggoy E. Estrada delivered on July 26, 2005 entitled "The
Philippines as the Wire-Tapping Capital of the World"; (3) Privilege Speech of Senator Rodolfo
Biazon delivered on August 1, 2005 entitled "Clear and Present Danger"; (4) Senate Resolution No.
285 filed by Senator Maria Ana Consuelo Madrigal Resolution Directing the Committee on National
Defense and Security to Conduct an Inquiry, in Aid of Legislation, and in the National Interest, on the
Role of the Military in the So-called "Gloriagate Scandal"; and (5) Senate Resolution No. 295 filed by
Senator Biazon Resolution Directing the Committee on National Defense and Security to Conduct
an Inquiry, in Aid of Legislation, on the Wire-Tapping of the President of the Philippines.
Also invited to the above-said hearing scheduled on September 28 2005 was the AFP Chief of Staff,
General Generoso S. Senga who, by letter3 dated September 27, 2005, requested for its
postponement "due to a pressing operational situation that demands [his utmost personal attention"
while "some of the invited AFP officers are currently attending to other urgent operational matters."
On September 28, 2005, Senate President Franklin M. Drilon received from Executive Secretary
Eduardo R. Ermita a letter4 dated September 27, 2005 "respectfully request[ing] for the
postponement of the hearing [regarding the NorthRail project] to which various officials of the
Executive Department have been invited" in order to "afford said officials ample time and opportunity
to study and prepare for the various issues so that they may better enlighten the Senate Committee
on its investigation."
Senate President Drilon, however, wrote5 Executive Secretary Ermita that the Senators "are unable
to accede to [his request]" as it "was sent belatedly" and "[a]ll preparations and arrangements as well
as notices to all resource persons were completed [the previous] week."
Senate President Drilon likewise received on September 28, 2005 a letter 6 from the President of the
North Luzon Railways Corporation Jose L. Cortes, Jr. requesting that the hearing on the NorthRail
project be postponed or cancelled until a copy of the report of the UP Law Center on the contract
agreements relative to the project had been secured.
On September 28, 2005, the President issued E.O. 464, "Ensuring Observance of the Principle of
Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of
Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and For
Other Purposes,"7 which, pursuant to Section 6 thereof, took effect immediately. The salient
provisions of the Order are as follows:
SECTION 1. Appearance by Heads of Departments Before Congress. In accordance with Article
VI, Section 22 of the Constitution and to implement the Constitutional provisions on the separation of
powers between co-equal branches of the government, all heads of departments of the Executive
Branch of the government shall secure the consent of the President prior to appearing before either
House of Congress.

When the security of the State or the public interest so requires and the President so states in
writing, the appearance shall only be conducted in executive session.
SECTION. 2. Nature, Scope and Coverage of Executive Privilege.
(a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to the
operation of government and rooted in the separation of powers under the Constitution (Almonte vs.
Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct
and Ethical Standards for Public Officials and Employees provides that Public Officials and
Employees shall not use or divulge confidential or classified information officially known to them by
reason of their office and not made available to the public to prejudice the public interest.
Executive privilege covers all confidential or classified information between the President and the
public officers covered by this executive order, including:
Conversations and correspondence between the President and the public official covered by this
executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates
Authority, G.R. No. 133250, 9 July 2002);
Military, diplomatic and other national security matters which in the interest of national security
should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential
Commission on Good Government, G.R. No. 130716, 9 December 1998).
Information between inter-government agencies prior to the conclusion of treaties and executive
agreements (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9
December 1998);
Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good
Government, G.R. No. 130716, 9 December 1998);
Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No.
133250, 9 July 2002).
(b) Who are covered. The following are covered by this executive order:
Senior officials of executive departments who in the judgment of the department heads are covered
by the executive privilege;
Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the
judgment of the Chief of Staff are covered by the executive privilege;
Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other
officers who in the judgment of the Chief of the PNP are covered by the executive privilege;
Senior national security officials who in the judgment of the National Security Adviser are covered by
the executive privilege; and
Such other officers as may be determined by the President.
SECTION 3. Appearance of Other Public Officials Before Congress. All public officials enumerated
in Section 2 (b) hereof shall secure prior consent of the President prior to appearing before either

House of Congress to ensure the observance of the principle of separation of powers, adherence to
the rule on executive privilege and respect for the rights of public officials appearing in inquiries in
aid of legislation. (Emphasis and underscoring supplied)
Also on September 28, 2005, Senate President Drilon received from Executive Secretary Ermita a
copy of E.O. 464, and another letter8 informing him "that officials of the Executive Department invited
to appear at the meeting [regarding the NorthRail project] will not be able to attend the same without
the consent of the President, pursuant to [E.O. 464]" and that "said officials have not secured the
required consent from the President." On even date which was also the scheduled date of the
hearing on the alleged wiretapping, Gen. Senga sent a letter 9 to Senator Biazon, Chairperson of the
Committee on National Defense and Security, informing him "that per instruction of [President
Arroyo], thru the Secretary of National Defense, no officer of the [AFP] is authorized to appear before
any Senate or Congressional hearings without seeking a written approval from the President" and
"that no approval has been granted by the President to any AFP officer to appear before the public
hearing of the Senate Committee on National Defense and Security scheduled [on] 28 September
2005."
Despite the communications received from Executive Secretary Ermita and Gen. Senga, the
investigation scheduled by the Committee on National Defense and Security pushed through, with
only Col. Balutan and Brig. Gen. Gudani among all the AFP officials invited attending.
For defying President Arroyos order barring military personnel from testifying before legislative
inquiries without her approval, Brig. Gen. Gudani and Col. Balutan were relieved from their military
posts and were made to face court martial proceedings.
As to the NorthRail project hearing scheduled on September 29, 2005, Executive Secretary Ermita,
citing E.O. 464, sent letter of regrets, in response to the invitations sent to the following government
officials: Light Railway Transit Authority Administrator Melquiades Robles, Metro Rail Transit
Authority Administrator Roberto Lastimoso, Department of Justice (DOJ) Chief State Counsel
Ricardo V. Perez, then Presidential Legal Counsel Merceditas Gutierrez, Department of
Transportation and Communication (DOTC) Undersecretary Guiling Mamonding, DOTC Secretary
Leandro Mendoza, Philippine National Railways General Manager Jose Serase II, Monetary Board
Member Juanita Amatong, Bases Conversion Development Authority Chairperson Gen. Narciso
Abaya and Secretary Romulo L. Neri.10 NorthRail President Cortes sent personal regrets likewise
citing E.O. 464.11
On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and 169667, for
certiorari and prohibition, were filed before this Court challenging the constitutionality of E.O. 464.
In G.R. No. 169659, petitioners party-list Bayan Muna, House of Representatives Members Satur
Ocampo, Crispin Beltran, Rafael Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage, an
organization of government employees, and Counsels for the Defense of Liberties (CODAL), a group
of lawyers dedicated to the promotion of justice, democracy and peace, all claiming to have standing
to file the suit because of the transcendental importance of the issues they posed, pray, in their
petition that E.O. 464 be declared null and void for being unconstitutional; that respondent Executive
Secretary Ermita, in his capacity as Executive Secretary and alter-ego of President Arroyo, be
prohibited from imposing, and threatening to impose sanctions on officials who appear before
Congress due to congressional summons. Additionally, petitioners claim that E.O. 464 infringes on
their rights and impedes them from fulfilling their respective obligations. Thus, Bayan Muna alleges
that E.O. 464 infringes on its right as a political party entitled to participate in governance; Satur
Ocampo, et al. allege that E.O. 464 infringes on their rights and duties as members of Congress to
conduct investigation in aid of legislation and conduct oversight functions in the implementation of

laws; Courage alleges that the tenure of its members in public office is predicated on, and
threatened by, their submission to the requirements of E.O. 464 should they be summoned by
Congress; and CODAL alleges that its members have a sworn duty to uphold the rule of law, and
their rights to information and to transparent governance are threatened by the imposition of E.O.
464.
In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his constitutional rights as a citizen,
taxpayer and law practitioner, are affected by the enforcement of E.O. 464, prays in his petition that
E.O. 464 be declared null and void for being unconstitutional.
In G.R. No. 169667, petitioner Alternative Law Groups, Inc.12 (ALG), alleging that as a coalition of 17
legal resource non-governmental organizations engaged in developmental lawyering and work with
the poor and marginalized sectors in different parts of the country, and as an organization of citizens
of the Philippines and a part of the general public, it has legal standing to institute the petition to
enforce its constitutional right to information on matters of public concern, a right which was denied
to the public by E.O. 464,13 prays, that said order be declared null and void for being unconstitutional
and that respondent Executive Secretary Ermita be ordered to cease from implementing it.
On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a vital interest in the
resolution of the issue of the validity of E.O. 464 for it stands to suffer imminent and material injury,
as it has already sustained the same with its continued enforcement since it directly interferes with
and impedes the valid exercise of the Senates powers and functions and conceals information of
great public interest and concern, filed its petition for certiorari and prohibition, docketed as G.R. No.
169777 and prays that E.O. 464 be declared unconstitutional.
On October 14, 2005, PDP-Laban, a registered political party with members duly elected into the
Philippine Senate and House of Representatives, filed a similar petition for certiorari and prohibition,
docketed as G.R. No. 169834, alleging that it is affected by the challenged E.O. 464 because it
hampers its legislative agenda to be implemented through its members in Congress, particularly in
the conduct of inquiries in aid of legislation and transcendental issues need to be resolved to avert a
constitutional crisis between the executive and legislative branches of the government.
Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated his invitation to Gen. Senga
for him and other military officers to attend the hearing on the alleged wiretapping scheduled on
February 10, 2005. Gen. Senga replied, however, by letter 15 dated February 8, 2006, that "[p]ursuant
to Executive Order No. 464, th[e] Headquarters requested for a clearance from the President to
allow [them] to appear before the public hearing" and that "they will attend once [their] request is
approved by the President." As none of those invited appeared, the hearing on February 10, 2006
was cancelled.16
In another investigation conducted jointly by the Senate Committee on Agriculture and Food and the
Blue Ribbon Committee on the alleged mismanagement and use of the fertilizer fund under the
Ginintuang Masaganang Ani program of the Department of Agriculture (DA), several Cabinet officials
were invited to the hearings scheduled on October 5 and 26, November 24 and December 12, 2005
but most of them failed to attend, DA Undersecretary Belinda Gonzales, DA Assistant Secretary Felix
Jose Montes, Fertilizer and Pesticide Authority Executive Director Norlito R. Gicana, 17 and those
from the Department of Budget and Management18 having invoked E.O. 464.
In the budget hearings set by the Senate on February 8 and 13, 2006, Press Secretary and
Presidential Spokesperson Ignacio R. Bunye,19 DOJ Secretary Raul M. Gonzalez20 and Department
of Interior and Local Government Undersecretary Marius P. Corpus 21 communicated their inability to
attend due to lack of appropriate clearance from the President pursuant to E.O. 464. During the

February 13, 2005 budget hearing, however, Secretary Bunye was allowed to attend by Executive
Secretary Ermita.
On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of the Board of
Governors of the Integrated Bar of the Philippines, as taxpayers, and the Integrated Bar of the
Philippines as the official organization of all Philippine lawyers, all invoking their constitutional right to
be informed on matters of public interest, filed their petition for certiorari and prohibition, docketed as
G.R. No. 171246, and pray that E.O. 464 be declared null and void.
All the petitions pray for the issuance of a Temporary Restraining Order enjoining respondents from
implementing, enforcing, and observing E.O. 464.
In the oral arguments on the petitions conducted on February 21, 2006, the following substantive
issues were ventilated: (1) whether respondents committed grave abuse of discretion in
implementing E.O. 464 prior to its publication in the Official Gazette or in a newspaper of general
circulation; and (2) whether E.O. 464 violates the following provisions of the Constitution: Art. II, Sec.
28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art. VI, Sec. 22, Art. XI, Sec. 1, and
Art. XIII, Sec. 16. The procedural issue of whether there is an actual case or controversy that calls
for judicial review was not taken up; instead, the parties were instructed to discuss it in their
respective memoranda.
After the conclusion of the oral arguments, the parties were directed to submit their respective
memoranda, paying particular attention to the following propositions: (1) that E.O. 464 is, on its face,
unconstitutional; and (2) assuming that it is not, it is unconstitutional as applied in four instances,
namely: (a) the so called Fertilizer scam; (b) the NorthRail investigation (c) the Wiretapping activity
of the ISAFP; and (d) the investigation on the Venable contract. 22
Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their memoranda on March 7, 2006,
while those in G.R. No. 16966725 and G.R. No. 16983426 filed theirs the next day or on March 8,
2006. Petitioners in G.R. No. 171246 did not file any memorandum.
Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension to file
memorandum27 was granted, subsequently filed a manifestation28 dated March 14, 2006 that it would
no longer file its memorandum in the interest of having the issues resolved soonest, prompting this
Court to issue a Resolution reprimanding them.29
Petitioners submit that E.O. 464 violates the following constitutional provisions:
Art. VI, Sec. 2130
Art. VI, Sec. 2231
Art. VI, Sec. 132
Art. XI, Sec. 133
Art. III, Sec. 734
Art. III, Sec. 435
Art. XIII, Sec. 16 36

Art. II, Sec. 2837

Respondents Executive Secretary Ermita et al., on the other hand, pray in their consolidated
memorandum38 on March 13, 2006 for the dismissal of the petitions for lack of merit.
The Court synthesizes the issues to be resolved as follows:
1. Whether E.O. 464 contravenes the power of inquiry vested in Congress;
2. Whether E.O. 464 violates the right of the people to information on matters of public
concern; and
3. Whether respondents have committed grave abuse of discretion when they implemented
E.O. 464 prior to its publication in a newspaper of general circulation.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of E.O. 464, ascertainment of whether
the requisites for a valid exercise of the Courts power of judicial review are present is in order.
Like almost all powers conferred by the Constitution, the power of judicial review is subject to
limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial
power; (2) the person challenging the act must have standing to challenge the validity of the subject
act or issuance; otherwise stated, he must have a personal and substantial interest in the case such
that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must
be the very lis mota of the case.39
Except with respect to the requisites of standing and existence of an actual case or controversy
where the disagreement between the parties lies, discussion of the rest of the requisites shall be
omitted.
Standing
Respondents, through the Solicitor General, assert that the allegations in G.R. Nos. 169659, 169660
and 169667 make it clear that they, adverting to the non-appearance of several officials of the
executive department in the investigations called by the different committees of the Senate, were
brought to vindicate the constitutional duty of the Senate or its different committees to conduct
inquiry in aid of legislation or in the exercise of its oversight functions. They maintain that
Representatives Ocampo et al. have not shown any specific prerogative, power, and privilege of the
House of Representatives which had been effectively impaired by E.O. 464, there being no mention
of any investigation called by the House of Representatives or any of its committees which was
aborted due to the implementation of E.O. 464.
As for Bayan Munas alleged interest as a party-list representing the marginalized and
underrepresented, and that of the other petitioner groups and individuals who profess to have
standing as advocates and defenders of the Constitution, respondents contend that such interest
falls short of that required to confer standing on them as parties "injured-in-fact." 40

Respecting petitioner Chavez, respondents contend that Chavez may not claim an interest as a
taxpayer for the implementation of E.O. 464 does not involve the exercise of taxing or spending
power.41
With regard to the petition filed by the Senate, respondents argue that in the absence of a personal
or direct injury by reason of the issuance of E.O. 464, the Senate and its individual members are not
the proper parties to assail the constitutionality of E.O. 464.
Invoking this Courts ruling in National Economic Protectionism Association v. Ongpin 42 and Valmonte
v. Philippine Charity Sweepstakes Office,43 respondents assert that to be considered a proper party,
one must have a personal and substantial interest in the case, such that he has sustained or will
sustain direct injury due to the enforcement of E.O. 464.44
That the Senate of the Philippines has a fundamental right essential not only for intelligent public
decision-making in a democratic system, but more especially for sound legislation 45 is not disputed.
E.O. 464, however, allegedly stifles the ability of the members of Congress to access information
that is crucial to law-making.46 Verily, the Senate, including its individual members, has a substantial
and direct interest over the outcome of the controversy and is the proper party to assail the
constitutionality of E.O. 464. Indeed, legislators have standing to maintain inviolate the prerogative,
powers and privileges vested by the Constitution in their office and are allowed to sue to question
the validity of any official action which they claim infringes their prerogatives as legislators. 47
In the same vein, party-list representatives Satur Ocampo (Bayan Muna), Teodoro Casino (Bayan
Muna), Joel Virador (Bayan Muna), Crispin Beltran (Anakpawis), Rafael Mariano (Anakpawis), and
Liza Maza (Gabriela) are allowed to sue to question the constitutionality of E.O. 464, the absence of
any claim that an investigation called by the House of Representatives or any of its committees was
aborted due to the implementation of E.O. 464 notwithstanding, it being sufficient that a claim is
made that E.O. 464 infringes on their constitutional rights and duties as members of Congress to
conduct investigation in aid of legislation and conduct oversight functions in the implementation of
laws.
The national political party, Bayan Muna, likewise meets the standing requirement as it obtained
three seats in the House of Representatives in the 2004 elections and is, therefore, entitled to
participate in the legislative process consonant with the declared policy underlying the party list
system of affording citizens belonging to marginalized and underrepresented sectors, organizations
and parties who lack well-defined political constituencies to contribute to the formulation and
enactment of legislation that will benefit the nation.48
As Bayan Muna and Representatives Ocampo et al. have the standing to file their petitions, passing
on the standing of their co-petitioners Courage and Codal is rendered unnecessary.49
In filing their respective petitions, Chavez, the ALG which claims to be an organization of citizens,
and the incumbent members of the IBP Board of Governors and the IBP in behalf of its lawyer
members,50 invoke their constitutional right to information on matters of public concern, asserting that
the right to information, curtailed and violated by E.O. 464, is essential to the effective exercise of
other constitutional rights51 and to the maintenance of the balance of power among the three
branches of the government through the principle of checks and balances. 52
It is well-settled that when suing as a citizen, the interest of the petitioner in assailing the
constitutionality of laws, presidential decrees, orders, and other regulations, must be direct and
personal. In Franciso v. House of Representatives,53 this Court held that when the proceeding

involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement of
personal interest.
As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing in view of the
transcendental issues raised in its petition which this Court needs to resolve in order to avert a
constitutional crisis. For it to be accorded standing on the ground of transcendental importance,
however, it must establish (1) the character of the funds (that it is public) or other assets involved in
the case, (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by
the public respondent agency or instrumentality of the government, and (3) the lack of any party with
a more direct and specific interest in raising the questions being raised. 54 The first and last
determinants not being present as no public funds or assets are involved and petitioners in G.R.
Nos. 169777 and 169659 have direct and specific interests in the resolution of the controversy,
petitioner PDP-Laban is bereft of standing to file its petition. Its allegation that E.O. 464 hampers its
legislative agenda is vague and uncertain, and at best is only a "generalized interest" which it shares
with the rest of the political parties. Concrete injury, whether actual or threatened, is that
indispensable element of a dispute which serves in part to cast it in a form traditionally capable of
judicial resolution.55 In fine, PDP-Labans alleged interest as a political party does not suffice to
clothe it with legal standing.
Actual Case or Controversy
Petitioners assert that an actual case exists, they citing the absence of the executive officials invited
by the Senate to its hearings after the issuance of E.O. 464, particularly those on the NorthRail
project and the wiretapping controversy.
Respondents counter that there is no case or controversy, there being no showing that President
Arroyo has actually withheld her consent or prohibited the appearance of the invited officials. 56 These
officials, they claim, merely communicated to the Senate that they have not yet secured the consent
of the President, not that the President prohibited their attendance. 57 Specifically with regard to the
AFP officers who did not attend the hearing on September 28, 2005, respondents claim that the
instruction not to attend without the Presidents consent was based on its role as Commander-inChief of the Armed Forces, not on E.O. 464.
Respondents thus conclude that the petitions merely rest on an unfounded apprehension that the
President will abuse its power of preventing the appearance of officials before Congress, and that
such apprehension is not sufficient for challenging the validity of E.O. 464.
The Court finds respondents assertion that the President has not withheld her consent or prohibited
the appearance of the officials concerned immaterial in determining the existence of an actual case
or controversy insofar as E.O. 464 is concerned. For E.O. 464 does not require either a deliberate
withholding of consent or an express prohibition issuing from the President in order to bar officials
from appearing before Congress.
As the implementation of the challenged order has already resulted in the absence of officials invited
to the hearings of petitioner Senate of the Philippines, it would make no sense to wait for any further
event before considering the present case ripe for adjudication. Indeed, it would be sheer
abandonment of duty if this Court would now refrain from passing on the constitutionality of E.O.
464.
Constitutionality of E.O. 464

E.O. 464, to the extent that it bars the appearance of executive officials before Congress, deprives
Congress of the information in the possession of these officials. To resolve the question of whether
such withholding of information violates the Constitution, consideration of the general power of
Congress to obtain information, otherwise known as the power of inquiry, is in order.
The power of inquiry
The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution
which reads:
SECTION 21. The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The
rights of persons appearing in or affected by such inquiries shall be respected. (Underscoring
supplied)
This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution except that, in
the latter, it vests the power of inquiry in the unicameral legislature established therein the
Batasang Pambansa and its committees.
The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v. Nazareno, 58 a
case decided in 1950 under that Constitution, the Court already recognized that the power of inquiry
is inherent in the power to legislate.
Arnault involved a Senate investigation of the reportedly anomalous purchase of the Buenavista and
Tambobong Estates by the Rural Progress Administration. Arnault, who was considered a leading
witness in the controversy, was called to testify thereon by the Senate. On account of his refusal to
answer the questions of the senators on an important point, he was, by resolution of the Senate,
detained for contempt. Upholding the Senates power to punish Arnault for contempt, this Court held:
Although there is no provision in the Constitution expressly investing either House of Congress with
power to make investigations and exact testimony to the end that it may exercise its legislative
functions advisedly and effectively, such power is so far incidental to the legislative function as to be
implied. In other words, the power of inquiry with process to enforce it is an essential and
appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or
effectively in the absence of information respecting the conditions which the legislation is intended to
affect or change; and where the legislative body does not itself possess the requisite information
which is not infrequently true recourse must be had to others who do possess it. Experience has
shown that mere requests for such information are often unavailing, and also that information which
is volunteered is not always accurate or complete; so some means of compulsion is essential to
obtain what is needed.59 . . . (Emphasis and underscoring supplied)
That this power of inquiry is broad enough to cover officials of the executive branch may be deduced
from the same case. The power of inquiry, the Court therein ruled, is co-extensive with the power to
legislate.60 The matters which may be a proper subject of legislation and those which may be a
proper subject of investigation are one. It follows that the operation of government, being a legitimate
subject for legislation, is a proper subject for investigation.
Thus, the Court found that the Senate investigation of the government transaction involved in Arnault
was a proper exercise of the power of inquiry. Besides being related to the expenditure of public
funds of which Congress is the guardian, the transaction, the Court held, "also involved government
agencies created by Congress and officers whose positions it is within the power of Congress to
regulate or even abolish."

Since Congress has authority to inquire into the operations of the executive branch, it would be
incongruous to hold that the power of inquiry does not extend to executive officials who are the most
familiar with and informed on executive operations.
As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded on the
necessity of information in the legislative process. If the information possessed by executive officials
on the operation of their offices is necessary for wise legislation on that subject, by parity of
reasoning, Congress has the right to that information and the power to compel the disclosure
thereof.
As evidenced by the American experience during the so-called "McCarthy era," however, the right of
Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than
executive or judicial power. It may thus be subjected to judicial review pursuant to the Courts
certiorari powers under Section 1, Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee, 61 the inquiry itself might not
properly be in aid of legislation, and thus beyond the constitutional power of Congress. Such inquiry
could not usurp judicial functions. Parenthetically, one possible way for Congress to avoid such a
result as occurred in Bengzon is to indicate in its invitations to the public officials concerned, or to
any person for that matter, the possible needed statute which prompted the need for the inquiry.
Given such statement in its invitations, along with the usual indication of the subject of inquiry and
the questions relative to and in furtherance thereof, there would be less room for speculation on the
part of the person invited on whether the inquiry is in aid of legislation.
Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of
inquiry. The provision requires that the inquiry be done in accordance with the Senate or Houses
duly published rules of procedure, necessarily implying the constitutional infirmity of an inquiry
conducted without duly published rules of procedure. Section 21 also mandates that the rights of
persons appearing in or affected by such inquiries be respected, an imposition that obligates
Congress to adhere to the guarantees in the Bill of Rights.
These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons
affected, even if they belong to the executive branch. Nonetheless, there may be exceptional
circumstances, none appearing to obtain at present, wherein a clear pattern of abuse of the
legislative power of inquiry might be established, resulting in palpable violations of the rights
guaranteed to members of the executive department under the Bill of Rights. In such instances,
depending on the particulars of each case, attempts by the Executive Branch to forestall these
abuses may be accorded judicial sanction.
Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of
inquiry, which exemptions fall under the rubric of "executive privilege." Since this term figures
prominently in the challenged order, it being mentioned in its provisions, its preambular
clauses,62 and in its very title, a discussion of executive privilege is crucial for determining the
constitutionality of E.O. 464.
Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to the
promulgation of the 1986 Constitution.63 Being of American origin, it is best understood in light of how
it has been defined and used in the legal literature of the United States.

Schwartz defines executive privilege as "the power of the Government to withhold information from
the public, the courts, and the Congress."64 Similarly, Rozell defines it as "the right of the President
and high-level executive branch officers to withhold information from Congress, the courts, and
ultimately the public."65
Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has encompassed claims of
varying kinds.67 Tribe, in fact, comments that while it is customary to employ the phrase "executive
privilege," it may be more accurate to speak of executive privileges "since presidential refusals to
furnish information may be actuated by any of at least three distinct kinds of considerations, and may
be asserted, with differing degrees of success, in the context of either judicial or legislative
investigations."
One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S. Presidents,
beginning with Washington, on the ground that the information is of such nature that its disclosure
would subvert crucial military or diplomatic objectives. Another variety is the informers privilege, or
the privilege of the Government not to disclose the identity of persons who furnish information of
violations of law to officers charged with the enforcement of that law. Finally, a generic privilege for
internal deliberations has been said to attach to intragovernmental documents reflecting advisory
opinions, recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated. 68
Tribes comment is supported by the ruling in In re Sealed Case, thus:
Since the beginnings of our nation, executive officials have claimed a variety of privileges to resist
disclosure of information the confidentiality of which they felt was crucial to fulfillment of the unique
role and responsibilities of the executive branch of our government. Courts ruled early that the
executive had a right to withhold documents that might reveal military or state secrets. The courts
have also granted the executive a right to withhold the identity of government informers in some
circumstances and a qualified right to withhold information related to pending investigations. x x
x"69 (Emphasis and underscoring supplied)
The entry in Blacks Law Dictionary on "executive privilege" is similarly instructive regarding the
scope of the doctrine.
This privilege, based on the constitutional doctrine of separation of powers, exempts the executive
from disclosure requirements applicable to the ordinary citizen or organization where such
exemption is necessary to the discharge of highly important executive responsibilities involved in
maintaining governmental operations, and extends not only to military and diplomatic secrets but
also to documents integral to an appropriate exercise of the executive domestic decisional and
policy making functions, that is, those documents reflecting the frank expression necessary in intragovernmental advisory and deliberative communications.70 (Emphasis and underscoring supplied)
That a type of information is recognized as privileged does not, however, necessarily mean that it
would be considered privileged in all instances. For in determining the validity of a claim of privilege,
the question that must be asked is not only whether the requested information falls within one of the
traditional privileges, but also whether that privilege should be honored in a given procedural
setting.71
The leading case on executive privilege in the United States is U.S. v. Nixon, 72 decided in 1974. In
issue in that case was the validity of President Nixons claim of executive privilege against a
subpoena issued by a district court requiring the production of certain tapes and documents relating
to the Watergate investigations. The claim of privilege was based on the Presidents general interest

in the confidentiality of his conversations and correspondence. The U.S. Court held that while there
is no explicit reference to a privilege of confidentiality in the U.S. Constitution, it is constitutionally
based to the extent that it relates to the effective discharge of a Presidents powers. The Court,
nonetheless, rejected the Presidents claim of privilege, ruling that the privilege must be balanced
against the public interest in the fair administration of criminal justice. Notably, the Court was careful
to clarify that it was not there addressing the issue of claims of privilege in a civil litigation or against
congressional demands for information.
Cases in the U.S. which involve claims of executive privilege against Congress are rare. 73 Despite
frequent assertion of the privilege to deny information to Congress, beginning with President
Washingtons refusal to turn over treaty negotiation records to the House of Representatives, the
U.S. Supreme Court has never adjudicated the issue.74 However, the U.S. Court of Appeals for the
District of Columbia Circuit, in a case decided earlier in the same year as Nixon, recognized the
Presidents privilege over his conversations against a congressional subpoena. 75 Anticipating the
balancing approach adopted by the U.S. Supreme Court in Nixon, the Court of Appeals weighed the
public interest protected by the claim of privilege against the interest that would be served by
disclosure to the Committee. Ruling that the balance favored the President, the Court declined to
enforce the subpoena. 76
In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v.
Vasquez.77Almonte used the term in reference to the same privilege subject of Nixon. It quoted the
following portion of the Nixon decision which explains the basis for the privilege:
"The expectation of a President to the confidentiality of his conversations and correspondences, like
the claim of confidentiality of judicial deliberations, for example, has all the values to which we
accord deference for the privacy of all citizens and, added to those values, is the necessity for
protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential
decision-making. A President and those who assist him must be free to explore alternatives in the
process of shaping policies and making decisions and to do so in a way many would be unwilling to
express except privately. These are the considerations justifying a presumptive privilege for
Presidential communications. The privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the Constitution x x x " (Emphasis and
underscoring supplied)
Almonte involved a subpoena duces tecum issued by the Ombudsman against the therein
petitioners. It did not involve, as expressly stated in the decision, the right of the people to
information.78 Nonetheless, the Court recognized that there are certain types of information which the
government may withhold from the public, thus acknowledging, in substance if not in name, that
executive privilege may be claimed against citizens demands for information.
In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the common law holding that
there is a "governmental privilege against public disclosure with respect to state secrets regarding
military, diplomatic and other national security matters."80 The same case held that closed-door
Cabinet meetings are also a recognized limitation on the right to information.
Similarly, in Chavez v. Public Estates Authority,81 the Court ruled that the right to information does not
extend to matters recognized as "privileged information under the separation of powers," 82 by which
the Court meant Presidential conversations, correspondences, and discussions in closed-door
Cabinet meetings. It also held that information on military and diplomatic secrets and those affecting
national security, and information on investigations of crimes by law enforcement agencies before
the prosecution of the accused were exempted from the right to information.

From the above discussion on the meaning and scope of executive privilege, both in the United
States and in this jurisdiction, a clear principle emerges. Executive privilege, whether asserted
against Congress, the courts, or the public, is recognized only in relation to certain types of
information of a sensitive character. While executive privilege is a constitutional concept, a claim
thereof may be valid or not depending on the ground invoked to justify it and the context in which it is
made. Noticeably absent is any recognition that executive officials are exempt from the duty to
disclose information by the mere fact of being executive officials. Indeed, the extraordinary character
of the exemptions indicates that the presumption inclines heavily against executive secrecy and in
favor of disclosure.
Validity of Section 1
Section 1 is similar to Section 3 in that both require the officials covered by them to secure the
consent of the President prior to appearing before Congress. There are significant differences
between the two provisions, however, which constrain this Court to discuss the validity of these
provisions separately.
Section 1 specifically applies to department heads. It does not, unlike Section 3, require a prior
determination by any official whether they are covered by E.O. 464. The President herself has,
through the challenged order, made the determination that they are. Further, unlike also Section 3,
the coverage of department heads under Section 1 is not made to depend on the department heads
possession of any information which might be covered by executive privilege. In fact, in marked
contrast to Section 3 vis--vis Section 2, there is no reference to executive privilege at all. Rather,
the required prior consent under Section 1 is grounded on Article VI, Section 22 of the Constitution
on what has been referred to as the question hour.
SECTION 22. The heads of departments may upon their own initiative, with the consent of the
President, or upon the request of either House, as the rules of each House shall provide, appear
before and be heard by such House on any matter pertaining to their departments. Written questions
shall be submitted to the President of the Senate or the Speaker of the House of Representatives at
least three days before their scheduled appearance. Interpellations shall not be limited to written
questions, but may cover matters related thereto. When the security of the State or the public
interest so requires and the President so states in writing, the appearance shall be conducted in
executive session.
Determining the validity of Section 1 thus requires an examination of the meaning of Section 22 of
Article VI. Section 22 which provides for the question hour must be interpreted vis--vis Section 21
which provides for the power of either House of Congress to "conduct inquiries in aid of legislation."
As the following excerpt of the deliberations of the Constitutional Commission shows, the framers
were aware that these two provisions involved distinct functions of Congress.
MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the Question Hour]
yesterday, I noticed that members of the Cabinet cannot be compelled anymore to appear before the
House of Representatives or before the Senate. I have a particular problem in this regard, Madam
President, because in our experience in the Regular Batasang Pambansa as the Gentleman
himself has experienced in the interim Batasang Pambansa one of the most competent inputs that
we can put in our committee deliberations, either in aid of legislation or in congressional
investigations, is the testimonies of Cabinet ministers. We usually invite them, but if they do not
come and it is a congressional investigation, we usually issue subpoenas.
I want to be clarified on a statement made by Commissioner Suarez when he said that the fact that
the Cabinet ministers may refuse to come to the House of Representatives or the Senate [when

requested under Section 22] does not mean that they need not come when they are invited or
subpoenaed by the committee of either House when it comes to inquiries in aid of legislation or
congressional investigation. According to Commissioner Suarez, that is allowed and their presence
can be had under Section 21. Does the gentleman confirm this, Madam President?
MR. DAVIDE. We confirm that, Madam President, because Section 20 refers only to what was
originally the Question Hour, whereas, Section 21 would refer specifically to inquiries in aid of
legislation, under which anybody for that matter, may be summoned and if he refuses, he can be
held in contempt of the House.83 (Emphasis and underscoring supplied)
A distinction was thus made between inquiries in aid of legislation and the question hour. While
attendance was meant to be discretionary in the question hour, it was compulsory in inquiries in aid
of legislation. The reference to Commissioner Suarez bears noting, he being one of the proponents
of the amendment to make the appearance of department heads discretionary in the question hour.
So clearly was this distinction conveyed to the members of the Commission that the Committee on
Style, precisely in recognition of this distinction, later moved the provision on question hour from its
original position as Section 20 in the original draft down to Section 31, far from the provision on
inquiries in aid of legislation. This gave rise to the following exchange during the deliberations:
MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on Style] We now go, Mr.
Presiding Officer, to the Article on Legislative and may I request the chairperson of the Legislative
Department, Commissioner Davide, to give his reaction.
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is recognized.

|avvphi|.net

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

Consistent with their statements earlier in the deliberations, Commissioners Davide and Maambong
proceeded from the same assumption that these provisions pertained to two different functions of
the legislature. Both Commissioners understood that the power to conduct inquiries in aid of
legislation is different from the power to conduct inquiries during the question hour. Commissioner
Davides only concern was that the two provisions on these distinct powers be placed closely
together, they being complementary to each other. Neither Commissioner considered them as
identical functions of Congress.
The foregoing opinion was not the two Commissioners alone. From the above-quoted exchange,
Commissioner Maambongs committee the Committee on Style shared the view that the two
provisions reflected distinct functions of Congress. Commissioner Davide, on the other hand, was
speaking in his capacity as Chairman of the Committee on the Legislative Department. His views
may thus be presumed as representing that of his Committee.
In the context of a parliamentary system of government, the "question hour" has a definite meaning.
It is a period of confrontation initiated by Parliament to hold the Prime Minister and the other
ministers accountable for their acts and the operation of the government, 85 corresponding to what is
known in Britain as the question period. There was a specific provision for a question hour in the
1973 Constitution86 which made the appearance of ministers mandatory. The same perfectly
conformed to the parliamentary system established by that Constitution, where the ministers are also
members of the legislature and are directly accountable to it.
An essential feature of the parliamentary system of government is the immediate accountability of
the Prime Minister and the Cabinet to the National Assembly. They shall be responsible to the
National Assembly for the program of government and shall determine the guidelines of national
policy. Unlike in the presidential system where the tenure of office of all elected officials cannot be
terminated before their term expired, the Prime Minister and the Cabinet remain in office only as long
as they enjoy the confidence of the National Assembly. The moment this confidence is lost the Prime
Minister and the Cabinet may be changed.87
The framers of the 1987 Constitution removed the mandatory nature of such appearance during the
question hour in the present Constitution so as to conform more fully to a system of separation of
powers.88 To that extent, the question hour, as it is presently understood in this jurisdiction, departs
from the question period of the parliamentary system. That department heads may not be required to
appear in a question hour does not, however, mean that the legislature is rendered powerless to
elicit information from them in all circumstances. In fact, in light of the absence of a mandatory
question period, the need to enforce Congress right to executive information in the performance of
its legislative function becomes more imperative. As Schwartz observes:
Indeed, if the separation of powers has anything to tell us on the subject under discussion, it is that
the Congress has the right to obtain information from any source even from officials of
departments and agencies in the executive branch. In the United States there is, unlike the situation
which prevails in a parliamentary system such as that in Britain, a clear separation between the
legislative and executive branches. It is this very separation that makes the congressional right to
obtain information from the executive so essential, if the functions of the Congress as the elected
representatives of the people are adequately to be carried out. The absence of close rapport
between the legislative and executive branches in this country, comparable to those which exist
under a parliamentary system, and the nonexistence in the Congress of an institution such as the
British question period have perforce made reliance by the Congress upon its right to obtain
information from the executive essential, if it is intelligently to perform its legislative tasks. Unless the
Congress possesses the right to obtain executive information, its power of oversight of
administration in a system such as ours becomes a power devoid of most of its practical content,

since it depends for its effectiveness solely upon information parceled out ex gratia by the
executive.89 (Emphasis and underscoring supplied)
Sections 21 and 22, therefore, while closely related and complementary to each other, should not be
considered as pertaining to the same power of Congress. One specifically relates to the power to
conduct inquiries in aid of legislation, the aim of which is to elicit information that may be used for
legislation, while the other pertains to the power to conduct a question hour, the objective of which is
to obtain information in pursuit of Congress oversight function.
When Congress merely seeks to be informed on how department heads are implementing the
statutes which it has issued, its right to such information is not as imperative as that of the President
to whom, as Chief Executive, such department heads must give a report of their performance as a
matter of duty. In such instances, Section 22, in keeping with the separation of powers, states that
Congress may only request their appearance. Nonetheless, when the inquiry in which Congress
requires their appearance is "in aid of legislation" under Section 21, the appearance is mandatory for
the same reasons stated in Arnault.90
In fine, the oversight function of Congress may be facilitated by compulsory process only to the
extent that it is performed in pursuit of legislation. This is consistent with the intent discerned from
the deliberations of the Constitutional Commission.
Ultimately, the power of Congress to compel the appearance of executive officials under Section 21
and the lack of it under Section 22 find their basis in the principle of separation of powers. While the
executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to
legislate by refusing to comply with its demands for information.
When Congress exercises its power of inquiry, the only way for department heads to exempt
themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they
are department heads. Only one executive official may be exempted from this power the
President on whom executive power is vested, hence, beyond the reach of Congress except through
the power of impeachment. It is based on her being the highest official of the executive branch, and
the due respect accorded to a co-equal branch of government which is sanctioned by a longstanding custom.
By the same token, members of the Supreme Court are also exempt from this power of inquiry.
Unlike the Presidency, judicial power is vested in a collegial body; hence, each member thereof is
exempt on the basis not only of separation of powers but also on the fiscal autonomy and the
constitutional independence of the judiciary. This point is not in dispute, as even counsel for the
Senate, Sen. Joker Arroyo, admitted it during the oral argument upon interpellation of the Chief
Justice.
Having established the proper interpretation of Section 22, Article VI of the Constitution, the Court
now proceeds to pass on the constitutionality of Section 1 of E.O. 464.
Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the
absence of any reference to inquiries in aid of legislation, must be construed as limited in its
application to appearances of department heads in the question hour contemplated in the provision
of said Section 22 of Article VI. The reading is dictated by the basic rule of construction that
issuances must be interpreted, as much as possible, in a way that will render it constitutional.

The requirement then to secure presidential consent under Section 1, limited as it is only to
appearances in the question hour, is valid on its face. For under Section 22, Article VI of the
Constitution, the appearance of department heads in the question hour is discretionary on their part.
Section 1 cannot, however, be applied to appearances of department heads in inquiries in aid of
legislation. Congress is not bound in such instances to respect the refusal of the department head to
appear in such inquiry, unless a valid claim of privilege is subsequently made, either by the
President herself or by the Executive Secretary.
Validity of Sections 2 and 3
Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the
consent of the President prior to appearing before either house of Congress. The enumeration is
broad. It covers all senior officials of executive departments, all officers of the AFP and the PNP, and
all senior national security officials who, in the judgment of the heads of offices designated in the
same section (i.e. department heads, Chief of Staff of the AFP, Chief of the PNP, and the National
Security Adviser), are "covered by the executive privilege."
The enumeration also includes such other officers as may be determined by the President. Given
the title of Section 2 "Nature, Scope and Coverage of Executive Privilege" , it is evident that
under the rule of ejusdem generis, the determination by the President under this provision is
intended to be based on a similar finding of coverage under executive privilege.
En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that executive privilege
actually covers persons. Such is a misuse of the doctrine. Executive privilege, as discussed above,
is properly invoked in relation to specific categories of information and not to categories of persons.
In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage of
executive privilege, the reference to persons being "covered by the executive privilege" may be read
as an abbreviated way of saying that the person is in possession of information which is, in the
judgment of the head of office concerned, privileged as defined in Section 2(a). The Court shall thus
proceed on the assumption that this is the intention of the challenged order.
Upon a determination by the designated head of office or by the President that an official is "covered
by the executive privilege," such official is subjected to the requirement that he first secure the
consent of the President prior to appearing before Congress. This requirement effectively bars the
appearance of the official concerned unless the same is permitted by the President. The proviso
allowing the President to give its consent means nothing more than that the President may reverse a
prohibition which already exists by virtue of E.O. 464.
Thus, underlying this requirement of prior consent is the determination by a head of office,
authorized by the President under E.O. 464, or by the President herself, that such official is in
possession of information that is covered by executive privilege. This determination then becomes
the basis for the officials not showing up in the legislative investigation.
In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present, such
invocation must be construed as a declaration to Congress that the President, or a head of office
authorized by the President, has determined that the requested information is privileged, and that
the President has not reversed such determination. Such declaration, however, even without
mentioning the term "executive privilege," amounts to an implied claim that the information is being
withheld by the executive branch, by authority of the President, on the basis of executive privilege.
Verily, there is an implied claim of privilege.

The letter dated September 28, 2005 of respondent Executive Secretary Ermita to Senate President
Drilon illustrates the implied nature of the claim of privilege authorized by E.O. 464. It reads:
In connection with the inquiry to be conducted by the Committee of the Whole regarding the Northrail
Project of the North Luzon Railways Corporation on 29 September 2005 at 10:00 a.m., please be
informed that officials of the Executive Department invited to appear at the meeting will not be able
to attend the same without the consent of the President, pursuant to Executive Order No. 464 (s.
2005), entitled "Ensuring Observance Of The Principle Of Separation Of Powers, Adherence To The
Rule On Executive Privilege And Respect For The Rights Of Public Officials Appearing In Legislative
Inquiries In Aid Of Legislation Under The Constitution, And For Other Purposes". Said officials have
not secured the required consent from the President. (Underscoring supplied)
The letter does not explicitly invoke executive privilege or that the matter on which these officials are
being requested to be resource persons falls under the recognized grounds of the privilege to justify
their absence. Nor does it expressly state that in view of the lack of consent from the President
under E.O. 464, they cannot attend the hearing.
Significant premises in this letter, however, are left unstated, deliberately or not. The letter assumes
that the invited officials are covered by E.O. 464. As explained earlier, however, to be covered by the
order means that a determination has been made, by the designated head of office or the President,
that the invited official possesses information that is covered by executive privilege. Thus, although it
is not stated in the letter that such determination has been made, the same must be deemed
implied. Respecting the statement that the invited officials have not secured the consent of the
President, it only means that the President has not reversed the standing prohibition against their
appearance before Congress.
Inevitably, Executive Secretary Ermitas letter leads to the conclusion that the executive branch,
either through the President or the heads of offices authorized under E.O. 464, has made a
determination that the information required by the Senate is privileged, and that, at the time of
writing, there has been no contrary pronouncement from the President. In fine, an implied claim of
privilege has been made by the executive.
While there is no Philippine case that directly addresses the issue of whether executive privilege
may be invoked against Congress, it is gathered from Chavez v. PEA that certain information in the
possession of the executive may validly be claimed as privileged even against Congress. Thus, the
case holds:
There is no claim by PEA that the information demanded by petitioner is privileged information
rooted in the separation of powers. The information does not cover Presidential conversations,
correspondences, or discussions during closed-door Cabinet meetings which, like internaldeliberations of the Supreme Court and other collegiate courts, or executive sessions of either house
of Congress, are recognized as confidential. This kind of information cannot be pried open by a coequal branch of government. A frank exchange of exploratory ideas and assessments, free from the
glare of publicity and pressure by interested parties, is essential to protect the independence of
decision-making of those tasked to exercise Presidential, Legislative and Judicial power. This is not
the situation in the instant case.91 (Emphasis and underscoring supplied)
Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the mere fact that it
sanctions claims of executive privilege. This Court must look further and assess the claim of privilege
authorized by the Order to determine whether it is valid.

While the validity of claims of privilege must be assessed on a case to case basis, examining the
ground invoked therefor and the particular circumstances surrounding it, there is, in an implied claim
of privilege, a defect that renders it invalid per se. By its very nature, and as demonstrated by the
letter of respondent Executive Secretary quoted above, the implied claim authorized by Section 3 of
E.O. 464 is not accompanied by any specific allegation of the basis thereof (e.g., whether the
information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.).
While Section 2(a) enumerates the types of information that are covered by the privilege under the
challenged order, Congress is left to speculate as to which among them is being referred to by the
executive. The enumeration is not even intended to be comprehensive, but a mere statement of
what is included in the phrase "confidential or classified information between the President and the
public officers covered by this executive order."
Certainly, Congress has the right to know why the executive considers the requested information
privileged. It does not suffice to merely declare that the President, or an authorized head of office,
has determined that it is so, and that the President has not overturned that determination. Such
declaration leaves Congress in the dark on how the requested information could be classified as
privileged. That the message is couched in terms that, on first impression, do not seem like a claim
of privilege only makes it more pernicious. It threatens to make Congress doubly blind to the
question of why the executive branch is not providing it with the information that it has requested.
A claim of privilege, being a claim of exemption from an obligation to disclose information, must,
therefore, be clearly asserted. As U.S. v. Reynolds teaches:
The privilege belongs to the government and must be asserted by it; it can neither be claimed nor
waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege,
lodged by the head of the department which has control over the matter, after actual personal
consideration by that officer. The court itself must determine whether the circumstances are
appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the
privilege is designed to protect.92 (Underscoring supplied)
Absent then a statement of the specific basis of a claim of executive privilege, there is no way of
determining whether it falls under one of the traditional privileges, or whether, given the
circumstances in which it is made, it should be respected. 93 These, in substance, were the same
criteria in assessing the claim of privilege asserted against the Ombudsman in Almonte v.
Vasquez94 and, more in point, against a committee of the Senate in Senate Select Committee on
Presidential Campaign Activities v. Nixon.95
A.O. Smith v. Federal Trade Commission is enlightening:
[T]he lack of specificity renders an assessment of the potential harm resulting from disclosure
impossible, thereby preventing the Court from balancing such harm against plaintiffs needs to
determine whether to override any claims of privilege. 96 (Underscoring supplied)
And so is U.S. v. Article of Drug:97
On the present state of the record, this Court is not called upon to perform this balancing operation.
In stating its objection to claimants interrogatories, government asserts, and nothing more, that the
disclosures sought by claimant would inhibit the free expression of opinion that non-disclosure is
designed to protect. The government has not shown nor even alleged that those who evaluated
claimants product were involved in internal policymaking, generally, or in this particular instance.
Privilege cannot be set up by an unsupported claim. The facts upon which the privilege is based
must be established. To find these interrogatories objectionable, this Court would have to assume

that the evaluation and classification of claimants products was a matter of internal policy
formulation, an assumption in which this Court is unwilling to indulge sua sponte. 98 (Emphasis and
underscoring supplied)
Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an agency must provide
precise and certain reasons for preserving the confidentiality of requested information."
Black v. Sheraton Corp. of America100 amplifies, thus:
A formal and proper claim of executive privilege requires a specific designation and description of
the documents within its scope as well as precise and certain reasons for preserving their
confidentiality. Without this specificity, it is impossible for a court to analyze the claim short of
disclosure of the very thing sought to be protected. As the affidavit now stands, the Court has little
more than its sua sponte speculation with which to weigh the applicability of the claim. An improperly
asserted claim of privilege is no claim of privilege. Therefore, despite the fact that a claim was made
by the proper executive as Reynolds requires, the Court can not recognize the claim in the instant
case because it is legally insufficient to allow the Court to make a just and reasonable determination
as to its applicability. To recognize such a broad claim in which the Defendant has given no precise
or compelling reasons to shield these documents from outside scrutiny, would make a farce of the
whole procedure.101(Emphasis and underscoring supplied)
Due respect for a co-equal branch of government, moreover, demands no less than a claim of
privilege clearly stating the grounds therefor. Apropos is the following ruling in McPhaul v. U.S: 102
We think the Courts decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724, is highly
relevant to these questions. For it is as true here as it was there, that if (petitioner) had legitimate
reasons for failing to produce the records of the association, a decent respect for the House of
Representatives, by whose authority the subpoenas issued, would have required that (he) state (his)
reasons for noncompliance upon the return of the writ. Such a statement would have given the
Subcommittee an opportunity to avoid the blocking of its inquiry by taking other appropriate steps to
obtain the records. To deny the Committee the opportunity to consider the objection or remedy is in
itself a contempt of its authority and an obstruction of its processes. His failure to make any such
statement was "a patent evasion of the duty of one summoned to produce papers before a
congressional committee[, and] cannot be condoned." (Emphasis and underscoring supplied;
citations omitted)
Upon the other hand, Congress must not require the executive to state the reasons for the claim with
such particularity as to compel disclosure of the information which the privilege is meant to
protect.103 A useful analogy in determining the requisite degree of particularity would be the privilege
against self-incrimination. Thus, Hoffman v. U.S.104 declares:
The witness is not exonerated from answering merely because he declares that in so doing he would
incriminate himself his say-so does not of itself establish the hazard of incrimination. It is for the
court to say whether his silence is justified, and to require him to answer if it clearly appears to the
court that he is mistaken. However, if the witness, upon interposing his claim, were required to prove
the hazard in the sense in which a claim is usually required to be established in court, he would be
compelled to surrender the very protection which the privilege is designed to guarantee. To sustain
the privilege, it need only be evident from the implications of the question, in the setting in which it is
asked, that a responsive answer to the question or an explanation of why it cannot be answered
might be dangerous because injurious disclosure could result." x x x (Emphasis and underscoring
supplied)

The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per se. It
is not asserted. It is merely implied. Instead of providing precise and certain reasons for the claim, it
merely invokes E.O. 464, coupled with an announcement that the President has not given her
consent. It is woefully insufficient for Congress to determine whether the withholding of information is
justified under the circumstances of each case. It severely frustrates the power of inquiry of
Congress.
In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.
No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding only
on the heads of office mentioned in Section 2(b), on what is covered by executive privilege. It does
not purport to be conclusive on the other branches of government. It may thus be construed as a
mere expression of opinion by the President regarding the nature and scope of executive privilege.
Petitioners, however, assert as another ground for invalidating the challenged order the alleged
unlawful delegation of authority to the heads of offices in Section 2(b). Petitioner Senate of the
Philippines, in particular, cites the case of the United States where, so it claims, only the President
can assert executive privilege to withhold information from Congress.
Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a
certain information is privileged, such determination is presumed to bear the Presidents authority
and has the effect of prohibiting the official from appearing before Congress, subject only to the
express pronouncement of the President that it is allowing the appearance of such official. These
provisions thus allow the President to authorize claims of privilege by mere silence.
Such presumptive authorization, however, is contrary to the exceptional nature of the privilege.
Executive privilege, as already discussed, is recognized with respect to information the confidential
nature of which is crucial to the fulfillment of the unique role and responsibilities of the executive
branch,105 or in those instances where exemption from disclosure is necessary to the discharge of
highly important executive responsibilities.106 The doctrine of executive privilege is thus premised on
the fact that certain informations must, as a matter of necessity, be kept confidential in pursuit of the
public interest. The privilege being, by definition, an exemption from the obligation to disclose
information, in this case to Congress, the necessity must be of such high degree as to outweigh the
public interest in enforcing that obligation in a particular case.
In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the
President the power to invoke the privilege. She may of course authorize the Executive Secretary to
invoke the privilege on her behalf, in which case the Executive Secretary must state that the
authority is "By order of the President," which means that he personally consulted with her. The
privilege being an extraordinary power, it must be wielded only by the highest official in the executive
hierarchy. In other words, the President may not authorize her subordinates to exercise such power.
There is even less reason to uphold such authorization in the instant case where the authorization is
not explicit but by mere silence. Section 3, in relation to Section 2(b), is further invalid on this score.
It follows, therefore, that when an official is being summoned by Congress on a matter which, in his
own judgment, might be covered by executive privilege, he must be afforded reasonable time to
inform the President or the Executive Secretary of the possible need for invoking the privilege. This
is necessary in order to provide the President or the Executive Secretary with fair opportunity to
consider whether the matter indeed calls for a claim of executive privilege. If, after the lapse of that
reasonable time, neither the President nor the Executive Secretary invokes the privilege, Congress
is no longer bound to respect the failure of the official to appear before Congress and may then opt
to avail of the necessary legal means to compel his appearance.

The Court notes that one of the expressed purposes for requiring officials to secure the consent of
the President under Section 3 of E.O. 464 is to ensure "respect for the rights of public officials
appearing in inquiries in aid of legislation." That such rights must indeed be respected by Congress
is an echo from Article VI Section 21 of the Constitution mandating that "[t]he rights of persons
appearing in or affected by such inquiries shall be respected."
In light of the above discussion of Section 3, it is clear that it is essentially an authorization for
implied claims of executive privilege, for which reason it must be invalidated. That such authorization
is partly motivated by the need to ensure respect for such officials does not change the infirm nature
of the authorization itself.
Right to Information
E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in
the hearings conducted by it, and not with the demands of citizens for information pursuant to their
right to information on matters of public concern. Petitioners are not amiss in claiming, however, that
what is involved in the present controversy is not merely the legislative power of inquiry, but the right
of the people to information.
There are, it bears noting, clear distinctions between the right of Congress to information which
underlies the power of inquiry and the right of the people to information on matters of public concern.
For one, the demand of a citizen for the production of documents pursuant to his right to information
does not have the same obligatory force as a subpoena duces tecum issued by Congress. Neither
does the right to information grant a citizen the power to exact testimony from government officials.
These powers belong only to Congress and not to an individual citizen.
Thus, while Congress is composed of representatives elected by the people, it does not follow,
except in a highly qualified sense, that in every exercise of its power of inquiry, the people are
exercising their right to information.
To the extent that investigations in aid of legislation are generally conducted in public, however, any
executive issuance tending to unduly limit disclosures of information in such investigations
necessarily deprives the people of information which, being presumed to be in aid of legislation, is
presumed to be a matter of public concern. The citizens are thereby denied access to information
which they can use in formulating their own opinions on the matter before Congress opinions
which they can then communicate to their representatives and other government officials through the
various legal means allowed by their freedom of expression. Thus holds Valmonte v. Belmonte:
It is in the interest of the State that the channels for free political discussion be maintained to the end
that the government may perceive and be responsive to the peoples will. Yet, this open dialogue can
be effective only to the extent that the citizenry is informed and thus able to formulate its will
intelligently. Only when the participants in the discussion are aware of the issues and have access to
information relating thereto can such bear fruit.107(Emphasis and underscoring supplied)
The impairment of the right of the people to information as a consequence of E.O. 464 is, therefore,
in the sense explained above, just as direct as its violation of the legislatures power of inquiry.
Implementation of E.O. 464 prior to its publication

While E.O. 464 applies only to officials of the executive branch, it does not follow that the same is
exempt from the need for publication. On the need for publishing even those statutes that do not
directly apply to people in general, Taada v. Tuvera states:
The term "laws" should refer to all laws and not only to those of general application, for strictly
speaking all laws relate to the people in general albeit there are some that do not apply to them
directly. An example is a law granting citizenship to a particular individual, like a relative of President
Marcos who was decreed instant naturalization. It surely cannot be said that such a law does not
affect the public although it unquestionably does not apply directly to all the people. The subject of
such law is a matter of public interest which any member of the body politic may question in the
political forums or, if he is a proper party, even in courts of justice. 108 (Emphasis and underscoring
supplied)
Although the above statement was made in reference to statutes, logic dictates that the challenged
order must be covered by the publication requirement. As explained above, E.O. 464 has a direct
effect on the right of the people to information on matters of public concern. It is, therefore, a matter
of public interest which members of the body politic may question before this Court. Due process
thus requires that the people should have been apprised of this issuance before it was implemented.
Conclusion
Congress undoubtedly has a right to information from the executive branch whenever it is sought in
aid of legislation. If the executive branch withholds such information on the ground that it is
privileged, it must so assert it and state the reason therefor and why it must be respected.
The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional
requests for information without need of clearly asserting a right to do so and/or proffering its
reasons therefor. By the mere expedient of invoking said provisions, the power of Congress to
conduct inquiries in aid of legislation is frustrated. That is impermissible. For
[w]hat republican theory did accomplishwas to reverse the old presumption in favor of secrecy,
based on the divine right of kings and nobles, and replace it with a presumption in favor of publicity,
based on the doctrine of popular sovereignty. (Underscoring supplied) 109
Resort to any means then by which officials of the executive branch could refuse to divulge
information cannot be presumed valid. Otherwise, we shall not have merely nullified the power of our
legislature to inquire into the operations of government, but we shall have given up something of
much greater value our right as a people to take part in government.
WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order No.
464 (series of 2005), "Ensuring Observance of the Principle of Separation of Powers, Adherence to
the Rule on Executive
Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of
Legislation Under the Constitution, and For Other Purposes," are declared VOID. Sections 1 and
2(a) are, however, VALID.
SO ORDERED.

BAYAN, KARAPATAN,
KILUSANG MAGBUBUKID
NG PILIPINAS (KMP),
GABRIELA, Fr. Jose Dizon,
Renato Constantino, Jr., Froyel
Yaneza, and Fahima Tajar,
Petitioners,
-

versus - G.R. No. 169838

EDUARDO ERMITA, in his

capacity as Executive Secretary,
Manila City Mayor LITO
ATIENZA, Chief of the Philippine
National Police, Gen. ARTURO
M. LOMIBAO, NCRPO Chief
Maj. Gen. VIDAL QUEROL,
and Western Police District Chief
Gen. PEDRO BULAONG,
Respondents.
x ------------------------------------------------- x
JESS DEL PRADO, WILSON
FORTALEZA, LEODY DE GUZMAN,
PEDRO PINLAC, CARMELITA
MORANTE, RASTI DELIZO, PAUL
BANGAY, MARIE JO OCAMPO,
LILIA DELA CRUZ, CRISTETA
RAMOS, ADELAIDA RAMOS,
MARY GRACE GONZALES, MICHAEL
TORRES, RENDO SABUSAP,
PRECIOUS BALUTE, ROXANNE
MAGBOO, ERNIE BAUTISTA,
JOSEPH DE JESUS, MARGARITA
ESCOBER, DJOANNALYN JANIER,
MAGDALENA SELLOTE, MANNY
QUIAZON, ERICSON DIZON,
NENITA CRUZAT, LEONARDO
DE LOS REYES, PEDRITO
FADRIGON,
Petitioners,
- versus - G.R. No. 169848
EDUARDO ERMITA, in his Present:
official capacity as The Executive
Secretary and in his personal PANGANIBAN, C.J.,

capacity, ANGELO REYES, in his PUNO,*

official capacity as Secretary of QUISUMBING,
the Interior and Local Governments, YNARES-SANTIAGO,
ARTURO LOMIBAO, in his SANDOVAL-GUTIERREZ,
official capacity as the Chief, CARPIO,
Philippine National Police, VIDAL AUSTRIA-MARTINEZ,
QUEROL, in his official capacity CORONA,
as the Chief, National Capital CARPIO MORALES,
Regional Police Office (NCRPO), CALLEJO, SR.,
PEDRO BULAONG, in his official AZCUNA,
capacity as the Chief, Manila TINGA,
Police District (MPD) AND ALL CHICO-NAZARIO,**
OTHER PUBLIC OFFICERS GARCIA, and
AND PRIVATE INDIVIDUALS VELASCO, JJ.
ACTING UNDER THEIR CONTROL,
SUPERVISION AND INSTRUCTIONS, Promulgated:
Respondents.
April 25, 2006
x -------------------------------------------------- x
KILUSANG MAYO UNO, represented
by its Chairperson ELMER C. LABOG
and Secretary General JOEL
MAGLUNSOD, NATIONAL
FEDERATION OF LABOR
UNIONS-KILUSANG MAYO UNO G.R. No. 169881
(NAFLU-KMU), represented by its
National President, JOSELITO V.
USTAREZ, ANTONIO C. PASCUAL,
SALVADOR T. CARRANZA, GILDA
SUMILANG, FRANCISCO
LASTRELLA, and ROQUE M. TAN,
Petitioners,
- versus THE HONORABLE EXECUTIVE
SECRETARY, PNP DIRECTOR
GENRAL ARTURO LOMIBAO,
HONORABLE MAYOR LITO
ATIENZA, and PNP MPD CHIEF
SUPT. PEDRO BULAONG,
Respondents.
x ---------------------------------------------------------------------------------------------- x

DECISION
AZCUNA, J.:

Petitioners come in three groups.

The first petitioners, Bayan, et al., in G.R. No. 169838,[1] allege that they are citizens and taxpayers of the
Philippines and that their rights as organizations and individuals were violated when the rally they
participated in on October 6, 2005 was violently dispersed by policemen implementing Batas Pambansa
(B.P.) No. 880.
The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R. No. 169848,[2] who
allege that they were injured, arrested and detained when a peaceful mass action they held on September
26, 2005 was preempted and violently dispersed by the police. They further assert that on October 5,
2005, a group they participated in marched to Malacaang to protest issuances of the Palace which, they
claim, put the country under an undeclared martial rule, and the protest was likewise dispersed violently
and many among them were arrested and suffered injuries.
The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881,[3] allege that they
conduct peaceful mass actions and that their rights as organizations and those of their individual members
as citizens, specifically the right to peaceful assembly, are affected by Batas Pambansa No. 880 and the
policy of Calibrated Preemptive Response (CPR) being followed to implement it.
KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be conducted at the
Mendiola bridge but police blocked them along C.M. Recto and Lepanto Streets and forcibly dispersed
them, causing injuries to several of their members. They further allege that on October 6, 2005, a multisectoral rally which KMU also co-sponsored was scheduled to proceed along Espaa Avenue in front of
the University of Santo Tomas and going towards Mendiola bridge. Police officers blocked them
alongMorayta Street and prevented them from proceeding further. They were then forcibly dispersed,
causing injuries on one of them.[4] Three other rallyists were arrested.
All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5, 6, 12,
13(a), and 14(a), as well as the policy of CPR. They seek to stop violent dispersals of rallies under the no
permit, no rally policy and the CPR policy recently announced.
B.P. No. 880, The Public Assembly Act of 1985, provides:
Batas Pambansa Blg. 880

AN ACT ENSURING THE FREE EXERCISE BY THE PEOPLE OF THEIR RIGHT

PEACEABLY TO ASSEMBLE AND PETITION THE GOVERNMENT [AND]
FOR OTHER PURPOSES
Be it enacted by the Batasang Pambansa in session assembled:
SECTION 1. Title. This Act shall be known as The Public Assembly Act of 1985.
SEC. 2. Declaration of policy. The constitutional right of the people peaceably to
assemble and petition the government for redress of grievances is essential and vital to
the strength and stability of the State. To this end, the State shall ensure the free exercise
of such right without prejudice to the rights of others to life, liberty and equal protection
of the law.
SEC. 3. Definition of terms. For purposes of this Act:
(a) Public assembly means any rally, demonstration, march, parade, procession or
any other form of mass or concerted action held in a public place for the purpose of
presenting a lawful cause; or expressing an opinion to the general public on any particular
issue; or protesting or influencing any state of affairs whether political, economic or
social; or petitioning the government for redress of grievances.
The processions, rallies, parades, demonstrations, public meetings and assemblages for
religious purposes shall be governed by local ordinances; Provided, however, That the
declaration of policy as provided in Section 2 of this Act shall be faithfully observed.
The definition herein contained shall not include picketing and other concerted action in
strike areas by workers and employees resulting from a labor dispute as defined by the
Labor Code, its implementing rules and regulations, and by the Batas Pambansa Bilang
227.
(b) Public place shall include any highway, boulevard, avenue, road, street, bridge or
other thoroughfare, park, plaza, square, and/or any open space of public ownership where
the people are allowed access.
(c) Maximum tolerance means the highest degree of restraint that the military, police and
other peace keeping authorities shall observe during a public assembly or in the dispersal
of the same.
(d) Modification of a permit shall include the change of the place and time of the public
assembly, rerouting of the parade or street march, the volume of loud-speakers or sound
system and similar changes.
SEC. 4. Permit when required and when not required. A written permit shall be required
for any person or persons to organize and hold a public assembly in a public
place. However, no permit shall be required if the public assembly shall be done or made
in a freedom park duly established by law or ordinance or in private property, in which
case only the consent of the owner or the one entitled to its legal possession is required,
or in the campus of a government-owned and operated educational institution which shall
be subject to the rules and regulations of said educational institution. Political meetings

or rallies held during any election campaign period as provided for by law are not
covered by this Act.
SEC. 5. Application requirements. All applications for a permit shall comply with the
following guidelines:
(a)
The applications shall be in writing and shall include the names of the
leaders or organizers; the purpose of such public assembly; the date, time and duration
thereof, and place or streets to be used for the intended activity; and the probable number
of persons participating, the transport and the public address systems to be used.
(b)
The application shall incorporate the duty and responsibility of the
applicant under Section 8 hereof.
(c)
The application shall be filed with the office of the mayor of the city or
municipality in whose jurisdiction the intended activity is to be held, at least five (5)
working days before the scheduled public assembly.
(d)
Upon receipt of the application, which must be duly acknowledged in
writing, the office of the city or municipal mayor shall cause the same to immediately be
posted at a conspicuous place in the city or municipal building.
SEC. 6. Action to be taken on the application.
(a)
It shall be the duty of the mayor or any official acting in his behalf to
issue or grant a permit unless there is clear and convincing evidence that the public
assembly will create a clear and present danger to public order, public safety, public
convenience, public morals or public health.
(b)
The mayor or any official acting in his behalf shall act on the application
within two (2) working days from the date the application was filed, failing which, the
permit shall be deemed granted. Should for any reason the mayor or any official acting in
his behalf refuse to accept the application for a permit, said application shall be posted by
the applicant on the premises of the office of the mayor and shall be deemed to have been
filed.
(c)
If the mayor is of the view that there is imminent and grave danger of a
substantive evil warranting the denial or modification of the permit, he shall immediately
inform the applicant who must be heard on the matter.
(d)
The action on the permit shall be in writing and served on the applica[nt]
within twenty-four hours.
(e)
If the mayor or any official acting in his behalf denies the application or
modifies the terms thereof in his permit, the applicant may contest the decision in an
appropriate court of law.
(f)
In case suit is brought before the Metropolitan Trial Court, the Municipal
Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the
Intermediate Appellate court, its decisions may be appealed to the appropriate court
within forty-eight (48) hours after receipt of the same. No appeal bond and record on

appeal shall be required. A decision granting such permit or modifying it in terms

satisfactory to the applicant shall be immediately executory.
(g)
All cases filed in court under this section shall be decided within twentyfour (24) hours from date of filing. Cases filed hereunder shall be immediately endorsed
to the executive judge for disposition or, in his absence, to the next in rank.
(h)

In all cases, any decision may be appealed to the Supreme Court.

(i)

Telegraphic appeals to be followed by formal appeals are hereby allowed.

SEC. 7. Use of Public throroughfare. Should the proposed public assembly

involve the use, for an appreciable length of time, of any public highway, boulevard,
avenue, road or street, the mayor or any official acting in his behalf may, to prevent grave
public inconvenience, designate the route thereof which is convenient to the participants
or reroute the vehicular traffic to another direction so that there will be no serious or
undue interference with the free flow of commerce and trade.
SEC. 8. Responsibility of applicant. It shall be the duty and responsibility of the
leaders and organizers of a public assembly to take all reasonable measures and steps to
the end that the intended public assembly shall be conducted peacefully in accordance
with the terms of the permit. These shall include but not be limited to the following:
(a)

To inform the participants of their responsibility under the permit;

(b)
To police the ranks of the demonstrators in order to prevent nondemonstrators from disrupting the lawful activities of the public assembly;
(c)
To confer with local government officials concerned and law enforcers to
the end that the public assembly may be held peacefully;
(d)
To see to it that the public assembly undertaken shall not go beyond the
time stated in the permit; and
(e)
To take positive steps that demonstrators do not molest any person or do
any act unduly interfering with the rights of other persons not participating in the public
assembly.
SEC. 9. Non-interference by law enforcement authorities. Law enforcement
agencies shall not interfere with the holding of a public assembly. However, to adequately
ensure public safety, a law enforcement contingent under the command of a responsible
police officer may be detailed and stationed in a place at least one hundred (100) meters
away from the area of activity ready to maintain peace and order at all times.
SEC. 10. Police assistance when requested. It shall be imperative for law
enforcement agencies, when their assistance is requested by the leaders or organizers, to
perform their duties always mindful that their responsibility to provide proper protection
to those exercising their right peaceably to assemble and the freedom of expression is
primordial. Towards this end, law enforcement agencies shall observe the following
guidelines:

(a)
Members of the law enforcement contingent who deal with the
demonstrators shall be in complete uniform with their nameplates and units to which they
belong displayed prominently on the front and dorsal parts of their uniform and must
observe the policy of maximum tolerance as herein defined;
(b)
The members of the law enforcement contingent shall not carry any kind
of firearms but may be equipped with baton or riot sticks, shields, crash helmets with
visor, gas masks, boots or ankle high shoes with shin guards;
(c)
Tear gas, smoke grenades, water cannons, or any similar anti-riot device
shall not be used unless the public assembly is attended by actual violence or serious
threats of violence, or deliberate destruction of property.
SEC. 11. Dispersal of public assembly with permit. No public assembly with a
permit shall be dispersed. However, when an assembly becomes violent, the police may
disperse such public assembly as follows:
(a)
At the first sign of impending violence, the ranking officer of the law
enforcement contingent shall call the attention of the leaders of the public assembly and
ask the latter to prevent any possible disturbance;
(b)
If actual violence starts to a point where rocks or other harmful objects
from the participants are thrown at the police or at the non-participants, or at any property
causing damage to such property, the ranking officer of the law enforcement contingent
shall audibly warn the participants that if the disturbance persists, the public assembly
will be dispersed;
(c)
If the violence or disturbance prevailing as stated in the preceding
subparagraph should not stop or abate, the ranking officer of the law enforcement
contingent shall audibly issue a warning to the participants of the public assembly, and
after allowing a reasonable period of time to lapse, shall immediately order it to forthwith
disperse;
(d)
No arrest of any leader, organizer or participant shall also be made during
the public assembly unless he violates during the assembly a law, statute, ordinance or
any provision of this Act. Such arrest shall be governed by Article 125 of the Revised
Penal Code, as amended;
(e)
Isolated acts or incidents of disorder or breach of the peace during the
public assembly shall not constitute a ground for dispersal.
SEC. 12. Dispersal of public assembly without permit. When the public assembly
is held without a permit where a permit is required, the said public assembly may be
peacefully dispersed.
SEC. 13. Prohibited acts. The following shall constitute violations of the Act:
(a)
The holding of any public assembly as defined in this Act by any leader or
organizer without having first secured that written permit where a permit is required from
the office concerned, or the use of such permit for such purposes in any place other than

those set out in said permit: Provided, however, That no person can be punished or held
criminally liable for participating in or attending an otherwise peaceful assembly;
(b)
Arbitrary and unjustified denial or modification of a permit in violation of
the provisions of this Act by the mayor or any other official acting in his behalf;
(c)
The unjustified and arbitrary refusal to accept or acknowledge receipt of
the application for a permit by the mayor or any official acting in his behalf;
(d)
Obstructing, impeding, disrupting or otherwise denying the exercise of the
right to peaceful assembly;
(e)
The unnecessary firing of firearms by a member of any law enforcement
agency or any person to disperse the public assembly;
(f)

Acts in violation of Section 10 hereof;

(g)
Acts described hereunder if committed within one hundred (100) meters
from the area of activity of the public assembly or on the occasion thereof:
1.

the carrying of a deadly or offensive weapon or device such as

firearm, pillbox, bomb, and the like;

2.
3.

the carrying of a bladed weapon and the like;

the malicious burning of any object in the streets or
thoroughfares;

4.

the carrying of firearms by members of the law enforcement unit;

5.

the interfering with or intentionally disturbing the holding of a

public assembly by the use of a motor vehicle, its horns and loud
sound systems.

SEC. 14. Penalties. Any person found guilty and convicted of any of the
prohibited acts defined in the immediately preceding section shall be punished as
follows:
(a)
violation of subparagraph (a) shall be punished by imprisonment of one
month and one day to six months;
(b)
violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph
(g) shall be punished by imprisonment of six months and one day to six years;
(c)
violation of item 1, subparagraph (g) shall be punished by imprisonment
of six months and one day to six years without prejudice to prosecution under
Presidential Decree No. 1866;
(d)
violations of item 2, item 3, or item 5 of subparagraph (g) shall be
punished by imprisonment of one day to thirty days.

SEC. 15. Freedom parks. Every city and municipality in the country shall within
six months after the effectivity of this Act establish or designate at least one suitable
freedom park or mall in their respective jurisdictions which, as far as practicable, shall be
centrally located within the poblacion where demonstrations and meetings may be held at
any time without the need of any prior permit.
In the cities and municipalities of Metropolitan Manila, the respective mayors shall
establish the freedom parks within the period of six months from the effectivity this Act.
SEC. 16. Constitutionality. Should any provision of this Act be declared invalid or
unconstitutional, the validity or constitutionality of the other provisions shall not be
affected thereby.
SEC. 17. Repealing clause. All laws, decrees, letters of instructions, resolutions, orders,
ordinances or parts thereof which are inconsistent with the provisions of this Act are
hereby repealed, amended, or modified accordingly.
SEC. 18. Effectivity. This Act shall take effect upon its approval.
Approved, October 22, 1985.

CPR, on the other hand, is a policy set forth in a press release by Malacaang dated September 21, 2005,
shown in Annex A to the Petition in G.R. No. 169848, thus:
Malacaang Official
Manila, Philippines NEWS
Release No. 2 September 21, 2005
STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA
On Unlawful Mass Actions
In view of intelligence reports pointing to credible plans of anti-government groups to
inflame the political situation, sow disorder and incite people against the duly constituted
authorities, we have instructed the PNP as well as the local government units to strictly
enforce a no permit, no rally policy, disperse groups that run afoul of this standard and
arrest all persons violating the laws of the land as well as ordinances on the proper
conduct of mass actions and demonstrations.
The rule of calibrated preemptive response is now in force, in lieu of maximum
tolerance. The authorities will not stand aside while those with ill intent are herding a
witting or unwitting mass of people and inciting them into actions that are inimical to
public order, and the peace of mind of the national community.

Unlawful mass actions will be dispersed. The majority of law-abiding citizens have the
right to be protected by a vigilant and proactive government.
We appeal to the detractors of the government to engage in lawful and peaceful conduct
befitting of a democratic society.
The Presidents call for unity and reconciliation stands, based on the rule of law.
Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of the Constitution
and the International Covenant on Civil and Political Rights and other human rights treaties of which
the Philippines is a signatory.[5]
They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless of the
presence or absence of a clear and present danger. It also curtails the choice of venue and is thus
repugnant to the freedom of expression clause as the time and place of a public assembly form part of the
message for which the expression is sought.Furthermore, it is not content-neutral as it does not apply to
mass actions in support of the government. The words lawful cause, opinion, protesting or influencing
suggest the exposition of some cause not espoused by the government. Also, the phrase maximum
tolerance shows that the law applies to assemblies against the government because they are being
tolerated. As a content-based legislation, it cannot pass the strict scrutiny test.
Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional as it is a curtailment
of the right to peacefully assemble and petition for redress of grievances because it puts a condition for
the valid exercise of that right. It also characterizes public assemblies without a permit as illegal and
penalizes them and allows their dispersal.Thus, its provisions are not mere regulations but are actually
prohibitions.
Furthermore, the law delegates powers to the Mayor without providing clear standards. The two standards
stated in the laws (clear and present danger and imminent and grave danger) are inconsistent.
Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of maximum
tolerance set forth in B.P. No. 880, aside from being void for being vague and for lack of publication.
Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to assembly and
therefore B.P. No. 880 cannot put the prior requirement of securing a permit. And even assuming that the
legislature can set limits to this right, the limits provided are unreasonable: First, allowing the Mayor to
deny the permit on clear and convincing evidence of a clear and present danger is too

comprehensive. Second, the five-day requirement to apply for a permit is too long as certain events
require instant public assembly, otherwise interest on the issue would possibly wane.
As to the CPR policy, they argue that it is preemptive, that the government takes action even before the
rallyists can perform their act, and that no law, ordinance or executive order supports the
policy. Furthermore, it contravenes the maximum tolerance policy of B.P. No. 880 and violates the
Constitution as it causes a chilling effect on the exercise by the people of the right to peaceably assemble.
Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive Secretary, Manila City Mayor Lito
Atienza, Chief, of the Philippine National Police (PNP) Gen. Arturo Lomibao, National Capital Region
Police Office (NCRPO) Chief, PNP Maj. Gen. Vidal Querol, and Manila Police District (MPD)
Chief Gen. Pedro Bulaong.
Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary and in his personal
capacity; Angelo Reyes, as Secretary of the Interior and Local Governments;Arturo Lomibao, as
Chief Vidal Querol, as Chief, NCRPO; Pedro Bulaong, as Chief, MPD, and all other public officers and
private individuals acting under their control, supervision and instruction.
Respondents in G.R. No. 169881 are the Honorable Executive Secretary, PNP Director General
Arturo Lomibao, the Honorable Mayor Joselito Atienza, and PNP MPDChief Pedro Bulaong.
Respondents argue that:
1.

Petitioners have no standing because they have not presented evidence that they had been

injured, arrested or detained because of the CPR, and that those arrested stand to be charged with
violating Batas Pambansa [No.] 880 and other offenses.
2.

Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot honestly claim that the

time, place and manner regulation embodied in B.P. No. 880 violates the three-pronged test for such a
measure, to wit: (a) B.P. No. 880 is content-neutral, i.e., it has no reference to content of regulated speech;
(b) B.P. No. 880 is narrowly tailored to serve a significant governmental interest, i.e., the interest cannot
be equally well served by a means that is less intrusive of free speech interests; and (c) B.P. No. 880
leaves open alternative channels for communication of the information. [6]
3.

B.P. No. 880 is content-neutral as seen from the text of the law. Section 5 requires the

statement of the public assemblys time, place and manner of conduct. It entails traffic re-routing to

prevent grave public inconvenience and serious or undue interference in the free flow of commerce and
trade. Furthermore, nothing in B.P. No. 880 authorizes the denial of a permit on the basis of a rallys
program content or the statements of the speakers therein, except under the constitutional precept of the
clear and present danger test. The status of B.P. No. 880 as a content-neutral regulation has been
recognized in Osmea v. Comelec.[7]
4.

Adiong v. Comelec[8] held that B.P. No. 880 is a content-neutral regulation of the time,

place and manner of holding public assemblies and the law passes the test for such regulation, namely,
these regulations need only a substantial governmental interest to support them.
5.

Sangalang v. Intermediate Appellate Court[9] held that a local chief executive has the

authority to exercise police power to meet the demands of the common good in terms of traffic
decongestion and public convenience. Furthermore, the discretion given to the mayor is narrowly
circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d), (e), 13 and 15 of the law.
6.

The standards set forth in the law are not inconsistent. Clear and convincing evidence that

the public assembly will create a clear and present danger to public order, public safety, public
convenience, public morals or public health and imminent and grave danger of a substantive evil both
express the meaning of the clear and present danger test. [10]
7.

CPR is simply the responsible and judicious use of means allowed by existing laws and

ordinances to protect public interest and restore public order. Thus, it is not accurate to call it a new rule
but rather it is a more pro-active and dynamic enforcement of existing laws, regulations and ordinances to
prevent chaos in the streets. It does not replace the rule of maximum tolerance in B.P. No. 880.
Respondent Mayor Joselito Atienza, for his part, submitted in his Comment that the petition in
G.R. No. 169838 should be dismissed on the ground that Republic Act No. 7160 gives the Mayor power
to deny a permit independently of B.P. No. 880; that his denials of permits were under the clear and
present danger rule as there was a clamor to stop rallies that disrupt the economy and to protect the lives
of other people; that J. B. L. Reyes v. Bagatsing,[11] Primicias v. Fugoso,[12] and Jacinto v. CA,[13] have
affirmed the constitutionality of requiring a permit; that the permit is for the use of a public place and not
for the exercise of rights; and that B.P. No. 880 is not a content-based regulation because it covers all
rallies.

The petitions were ordered consolidated on February 14, 2006. After the submission of all the
Comments, the Court set the cases for oral arguments on April 4, 2006,[14]stating the principal issues, as
follows:
1.

On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6,

12 13(a) and 14(a) thereof, and Republic Act No. 7160:
(a)
(b)
(c)
(d)
(e)

2.

Are these content-neutral or content-based regulations?

Are they void on grounds of overbreadth or vagueness?
Do they constitute prior restraint?
Are they undue delegations of powers to Mayors?
Do they violate international human rights treaties and the Universal
Declaration of Human Rights?

On the constitutionality and legality of the policy of Calibrated Preemptive

Response (CPR):
(a)
(b)
(c)

Is the policy void on its face or due to vagueness?

Is it void for lack of publication?
Is the policy of CPR void as applied to the rallies of September 26 and
October 4, 5 and 6, 2005?

During the course of the oral arguments, the following developments took place and were
approved and/or noted by the Court:
1.

Petitioners, in the interest of a speedy resolution of the petitions, withdrew the portions of

their petitions raising factual issues, particularly those raising the issue of whether B.P. No. 880 and/or
CPR is void as applied to the rallies of September 20, October 4, 5 and 6, 2005.
2.

The Solicitor General agreed with the observation of the Chief Justice that CPR should no

longer be used as a legal term inasmuch as, according to respondents, it was merely a catchword intended
to clarify what was thought to be a misunderstanding of the maximum tolerance policy set forth in B.P.
No. 880 and that, as stated in the affidavit executed by Executive Secretary Eduardo Ermita and submitted
to the Ombudsman, it does not replace B.P. No. 880 and the maximum tolerance policy embodied in that
law.
The Court will now proceed to address the principal issues, taking into account the foregoing
developments.
Petitioners standing cannot be seriously challenged. Their right as citizens to engage in peaceful
assembly and exercise the right of petition, as guaranteed by the Constitution, is directly affected by B.P.

No. 880 which requires a permit for all who would publicly assemble in the nations streets and
parks. They have, in fact, purposely engaged in public assemblies without the required permits to press
their claim that no such permit can be validly required without violating the Constitutional
guarantee.Respondents, on the other hand, have challenged such action as contrary to law and dispersed
the public assemblies held without the permit.
Section 4 of Article III of the Constitution provides:
SEC. 4. No law shall be passed abridging the freedom of speech, of expression,
or of the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.
The first point to mark is that the right to peaceably assemble and petition for redress of
grievances is, together with freedom of speech, of expression, and of the press, a right that enjoys primacy
in the realm of constitutional protection. For these rights constitute the very basis of a functional
democratic polity, without which all the other rights would be meaningless and unprotected. As stated
in Jacinto v. CA,[15] the Court, as early as the onset of this century, in U.S. v. Apurado,[16] already upheld
the right to assembly and petition, as follows:
There is no question as to the petitioners rights to peaceful assembly to petition
the government for a redress of grievances and, for that matter, to organize or form
associations for purposes not contrary to law, as well as to engage in peaceful concerted
activities. These rights are guaranteed by no less than the Constitution, particularly
Sections 4 and 8 of the Bill of Rights, Section 2(5) of Article IX, and Section 3 of Article
XIII. Jurisprudence abounds with hallowed pronouncements defending and promoting the
peoples exercise of these rights. As early as the onset of this century, this Court in U.S.
vs. Apurado, already upheld the right to assembly and petition and even went as far as to
acknowledge:
It is rather to be expected that more or less disorder will mark the public
assembly of the people to protest against grievances whether real or imaginary, because
on such occasions feeling is always wrought to a high pitch of excitement, and the
greater, the grievance and the more intense the feeling, the less perfect, as a rule will be
the disciplinary control of the leaders over their irresponsible followers. But if the
prosecution be permitted to seize upon every instance of such disorderly conduct by
individual members of a crowd as an excuse to characterize the assembly as a seditious
and tumultuous rising against the authorities, then the right to assemble and to petition for
redress of grievances would become a delusion and a snare and the attempt to exercise it
on the most righteous occasion and in the most peaceable manner would expose all those
who took part therein to the severest and most unmerited punishment, if the purposes
which they sought to attain did not happen to be pleasing to the prosecuting authorities. If
instances of disorderly conduct occur on such occasions, the guilty individuals should be
sought out and punished therefor, but the utmost discretion must be exercised in drawing

the line between disorderly and seditious conduct and between an essentially peaceable
assembly and a tumultuous uprising.

Again, in Primicias v. Fugoso,[17] the Court likewise sustained the primacy of freedom of speech
and to assembly and petition over comfort and convenience in the use of streets and parks.
Next, however, it must be remembered that the right, while sacrosanct, is not
absolute. In Primicias, this Court said:
The right to freedom of speech, and to peacefully assemble and petition the
government for redress of grievances, are fundamental personal rights of the people
recognized and guaranteed by the constitutions of democratic countries. But it is a settled
principle growing out of the nature of well-ordered civil societies that the exercise of
those rights is not absolute for it may be so regulated that it shall not be injurious to the
equal enjoyment of others having equal rights, nor injurious to the rights of the
community or society. The power to regulate the exercise of such and other constitutional
rights is termed the sovereign police power, which is the power to prescribe regulations,
to promote the health, morals, peace, education, good order or safety, and general welfare
of the people. This sovereign police power is exercised by the government through its
legislative branch by the enactment of laws regulating those and other constitutional and
civil rights, and it may be delegated to political subdivisions, such as towns,
municipalities and cities by authorizing their legislative bodies called municipal and city
councils to enact ordinances for the purpose. [18]

Reyes v. Bagatsing[19] further expounded on the right and its limits, as follows:
1. It is thus clear that the Court is called upon to protect the exercise of the
cognate rights to free speech and peaceful assembly, arising from the denial of a
permit. The Constitution is quite explicit: No law shall be passed abridging the freedom
of speech, or of the press, or the right of the people peaceably to assemble and petition
the Government for redress of grievances.Free speech, like free press, may be identified
with the liberty to discuss publicly and truthfully any matter of public concern without
censorship or punishment. There is to be then no previous restraint on the communication
of views or subsequent liability whether in libel suits, prosecution for sedition, or action
for damages, or contempt proceedings unless there be a clear and present danger of a
substantive evil that [the State] has a right to prevent. Freedom of assembly connotes the
right of the people to meet peaceably for consultation and discussion of matters of public
concern. It is entitled to be accorded the utmost deference and respect. It is not to be
limited, much less denied, except on a showing, as is the case with freedom of
expression, of a clear and present danger of a substantive evil that the state has a right to
prevent. Even prior to the 1935 Constitution, Justice Malcolm had occasion to stress that
it is a necessary consequence of our republican institutions and complements the right of
free speech. To paraphrase the opinion of Justice Rutledge, speaking for the majority of
the American Supreme Court in Thomas v. Collins, it was not by accident or coincidence
that the rights to freedom of speech and of the press were coupled in a single guarantee
with the rights of the people peaceably to assemble and to petition the government for
redress of grievances. All these rights, while not identical, are inseparable. In every case,

therefore, where there is a limitation placed on the exercise of this right, the judiciary is
called upon to examine the effects of the challenged governmental actuation. The sole
justification for a limitation on the exercise of this right, so fundamental to the
maintenance of democratic institutions, is the danger, of a character both grave and
imminent, of a serious evil to public safety, public morals, public health, or any other
legitimate public interest.
2. Nowhere is the rationale that underlies the freedom of expression and peaceable
assembly better expressed than in this excerpt from an opinion of Justice Frankfurter: It
must never be forgotten, however, that the Bill of Rights was the child of the
Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to
reason by all the peaceful means for gaining access to the mind. It was in order to avert
force and explosions due to restrictions upon rational modes of communication that the
guaranty of free speech was given a generous scope.But utterance in a context of violence
can lose its significance as an appeal to reason and become part of an instrument of
force. Such utterance was not meant to be sheltered by the Constitution. What was
rightfully stressed is the abandonment of reason, the utterance, whether verbal or printed,
being in a context of violence. It must always be remembered that this right likewise
provides for a safety valve, allowing parties the opportunity to give vent to their views,
even if contrary to the prevailing climate of opinion. For if the peaceful means of
communication cannot be availed of, resort to non-peaceful means may be the only
alternative. Nor is this the sole reason for the expression of dissent. It means more than
just the right to be heard of the person who feels aggrieved or who is dissatisfied with
things as they are. Its value may lie in the fact that there may be something worth hearing
from the dissenter. That is to ensure a true ferment of ideas. There are, of course, welldefined limits. What is guaranteed is peaceable assembly. One may not advocate disorder
in the name of protest, much less preach rebellion under the cloak of dissent. The
Constitution frowns on disorder or tumult attending a rally or assembly. Resort to force is
ruled out and outbreaks of violence to be avoided. The utmost calm though is not
required. As pointed out in an early Philippine case, penned in 1907 to be precise, United
States v. Apurado: It is rather to be expected that more or less disorder will mark the
public assembly of the people to protest against grievances whether real or imaginary,
because on such occasions feeling is always wrought to a high pitch of excitement, and
the greater the grievance and the more intense the feeling, the less perfect, as a rule, will
be the disciplinary control of the leaders over their irresponsible followers. It bears
repeating that for the constitutional right to be invoked, riotous conduct, injury to
property, and acts of vandalism must be avoided. To give free rein to ones destructive
urges is to call for condemnation. It is to make a mockery of the high estate occupied by
intellectual liberty in our scheme of values.
There can be no legal objection, absent the existence of a clear and present danger of a
substantive evil, on the choice of Luneta as the place where the peace rally would
start. The Philippines is committed to the view expressed in the plurality opinion, of 1939
vintage, of Justice Roberts in Hague v. CIO: Whenever the title of streets and parks may
rest, they have immemorially been held in trust for the use of the public and, time out of
mind, have been used for purposes of assembly, communicating thoughts between
citizens, and discussing public questions. Such use of the streets and public places has,
from ancient times, been a part of the privileges, immunities, rights and liberties of
citizens. The privilege of a citizen of the United States to use the streets and parks for
communication of views on national questions may be regulated in the interest of all; it is
not absolute, but relative, and must be exercised in subordination to the general comfort

and convenience, and in consonance with peace and good order; but must not, in the
guise of regulation, be abridged or denied. The above excerpt was quoted with approval
in Primicias v. Fugoso.Primicias made explicit what was implicit
in Municipality of Cavite v. Rojas, a 1915 decision, where this Court categorically
affirmed that plazas or parks and streets are outside the commerce of man and thus
nullified a contract that leased Plaza Soledad of plaintiff-municipality. Reference was
made to such plaza being a promenade for public use, which certainly is not the only
purpose that it could serve. To repeat, there can be no valid reason why a permit should
not be granted for the proposed march and rally starting from a public park that is the
Luneta.
4. Neither can there be any valid objection to the use of the streets to the gates of
the US embassy, hardly two blocks away at the Roxas Boulevard. Primicias v. Fugoso
has resolved any lurking doubt on the matter. In holding that the then Mayor Fugoso of
the City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo,
this Court categorically declared: Our conclusion finds support in the decision in the case
of Willis Cox v. State of New Hampshire, 312 U.S., 569. In that case, the statute of New
Hampshire P.L. chap. 145, section 2, providing that no parade or procession upon any
ground abutting thereon, shall be permitted unless a special license therefor shall first be
obtained from the selectmen of the town or from licensing committee, was construed by
the Supreme Court of New Hampshire as not conferring upon the licensing board
unfettered discretion to refuse to grant the license, and held valid. And the Supreme Court
of the United States, in its decision (1941) penned by Chief Justice Hughes affirming the
judgment of the State Supreme Court, held that a statute requiring persons using the
public streets for a parade or procession to procure a special license therefor from the
local authorities is not an unconstitutional abridgment of the rights of assembly or of
freedom of speech and press, where, as the statute is construed by the state courts, the
licensing authorities are strictly limited, in the issuance of licenses, to a consideration of
the time, place, and manner of the parade or procession, with a view to conserving the
public convenience and of affording an opportunity to provide proper policing, and are
not invested with arbitrary discretion to issue or refuse license, * * *. Nor should the
point made by Chief Justice Hughes in a subsequent portion of the opinion be ignored:
Civil liberties, as guaranteed by the Constitution, imply the existence of an organized
society maintaining public order without which liberty itself would be lost in the excesses
of unrestricted abuses. The authority of a municipality to impose regulations in order to
assure the safety and convenience of the people in the use of public highways has never
been regarded as inconsistent with civil liberties but rather as one of the means of
safeguarding the good order upon which they ultimately depend. The control of travel on
the streets of cities is the most familiar illustration of this recognition of social
need. Where a restriction of the use of highways in that relation is designed to promote
the public convenience in the interest of all, it cannot be disregarded by the attempted
exercise of some civil right which in other circumstances would be entitled to protection.
xxx
6. x x x The principle under American doctrines was given utterance by Chief Justice
Hughes in these words: The question, if the rights of free speech and peaceable assembly
are to be preserved, is not as to the auspices under which the meeting is held but as to its
purpose; not as to the relations of the speakers, but whether their utterances transcend the
bounds of the freedom of speech which the Constitution protects. There could be danger
to public peace and safety if such a gathering were marked by turbulence. That would
deprive it of its peaceful character. Even then, only the guilty parties should be held

accountable. It is true that the licensing official, here respondent Mayor, is not devoid of
discretion in determining whether or not a permit would be granted. It is not, however,
unfettered discretion. While prudence requires that there be a realistic appraisal not of
what may possibly occur but of what may probably occur, given all the relevant
circumstances, still the assumption especially so where the assembly is scheduled for a
specific public place is that the permit must be for the assembly being held there. The
exercise of such a right, in the language of Justice Roberts, speaking for the American
Supreme Court, is not to be abridged on the plea that it may be exercised in some other
place.
xxx
8. By way of a summary. The applicants for a permit to hold an assembly should inform
the licensing authority of the date, the public place where and the time when it will take
place. If it were a private place, only the consent of the owner or the one entitled to its
legal possession is required. Such application should be filed well ahead in time to enable
the public official concerned to appraise whether there may be valid objections to the
grant of the permit or to its grant but at another public place. It is an indispensable
condition to such refusal or modification that the clear and present danger test be the
standard for the decision reached. If he is of the view that there is such an imminent and
grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter,
his decision, whether favorable or adverse, must be transmitted to them at the earliest
opportunity. Thus if so minded, they can have recourse to the proper judicial
authority.Free speech and peaceable assembly, along with the other intellectual freedoms,
are highly ranked in our scheme of constitutional values. It cannot be too strongly
stressed that on the judiciary, -- even more so than on the other departments rests the
grave and delicate responsibility of assuring respect for and deference to such preferred
rights. No verbal formula, no sanctifying phrase can, of course, dispense with what has
been so felicitiously termed by Justice Holmes as the sovereign prerogative of
judgment. Nonetheless, the presumption must be to incline the weight of the scales of
justice on the side of such rights, enjoying as they do precedence and primacy. x x x.

B.P. No. 880 was enacted after this Court rendered its decision in Reyes.
The provisions of B.P. No. 880 practically codify the ruling in Reyes:

Reyes v. Bagatsing
(G.R. No. L-65366, November 9, 1983,
125 SCRA 553, 569)

B.P. No. 880

8. By way of a summary. The applicants for a

permit to hold an assembly should inform the
licensing authority of the date, the public
place where and the time when it will take place. If it
were a private place, only the consent of the owner or
the one entitled to its legal possession is
required. Such application should be filed well ahead
in time to enable the public official concerned to

SEC. 4. Permit when required and when not

required.-- A written permit shall be required for
any person or persons to organize and hold a
public assembly in a public place. However, no
permit shall be required if the public assembly
shall be done or made in a freedom park duly
established by law or ordinance or in private
property, in which case only the consent of the

appraise whether there may be valid objections to the

grant of the permit or to its grant but at another public
place. It is an indispensable condition to such refusal
or modification that the clear and present danger test
be the standard for the decision reached. If he is of
the view that there is such an imminent and grave
danger of a substantive evil, the applicants must be
heard on the matter. Thereafter, his decision, whether
favorable or adverse, must be transmitted to them at
the earliest opportunity.Thus if so minded, they can
have recourse to the proper judicial authority.

owner or the one entitled to its legal possession is

required, or in the campus of a government-owned
and operated educational institution which shall
be subject to the rules and regulations of said
educational institution. Political meetings or
rallies held during any election campaign period
as provided for by law are not covered by this Act.
SEC. 5. Application requirements.-- All
applications for a permit shall comply with the
following guidelines:
(a) The applications shall be in writing and
shall include the names of the leaders or
organizers; the purpose of such public assembly;
the date, time and duration thereof, and place or
streets to be used for the intended activity; and the
probable number of persons participating, the
transport and the public address systems to be
used.
(b) The application shall incorporate the duty
and responsibility of applicant under Section 8
hereof.
(c) The application shall be filed with the office
of the mayor of the city or municipality in whose
jurisdiction the intended activity is to be held, at
least five (5) working days before the scheduled
public assembly.
(d) Upon receipt of the application, which must
be duly acknowledged in writing, the office of the
city or municipal mayor shall cause the same to
immediately be posted at a conspicuous place in
the city or municipal building.
SEC. 6. Action to be taken on the application.
(a) It shall be the duty of the mayor or any
official acting in his behalf to issue or grant a
permit unless there is clear and convincing
evidence that the public assembly will create a
clear and present danger to public order, public
safety, public convenience, public morals or
public health.
(b) The mayor or any official acting in his
behalf shall act on the application within two (2)
working days from the date the application was
filed, failing which, the permit shall be deemed
granted. Should for any reason the mayor or any
official acting in his behalf refuse to accept the
application for a permit, said application shall be
posted by the applicant on the premises of the
office of the mayor and shall be deemed to have
been filed.
(c) If the mayor is of the view that there is
imminent and grave danger of a substantive evil
warranting the denial or modification of the
permit, he shall immediately inform the applicant
who must be heard on the matter.
(d) The action on the permit shall be in writing

and served on the applica[nt] within twenty-four

hours.
(e) If the mayor or any official acting in his
behalf denies the application or modifies the terms
thereof in his permit, the applicant may contest
the decision in an appropriate court of law.
(f) In case suit is brought before the
Metropolitan Trial Court, the Municipal Trial
Court, the Municipal Circuit Trial Court, the
Regional Trial Court, or the Intermediate
Appellate Court, its decisions may be appealed to
the appropriate court within forty-eight (48) hours
after receipt of the same. No appeal bond and
record on appeal shall be required. A decision
granting such permit or modifying it in terms
satisfactory to the applicant shall be immediately
executory.
(g) All cases filed in court under this section
shall be decided within twenty-four (24) hours
from date of filing. Cases filed hereunder shall be
immediately endorsed to the executive judge for
disposition or, in his absence, to the next in rank.
(h) In all cases, any decision may be appealed
to the Supreme Court.
(i) Telegraphic appeals to be followed by
formal appeals are hereby allowed.

It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a restriction
that simply regulates the time, place and manner of the assemblies. This was adverted to in Osmea v.
Comelec,[20] where the Court referred to it as a content-neutral regulation of the time, place, and manner of
holding public assemblies.[21]
A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public
assemblies[22] that would use public places. The reference to lawful cause does not make it content-based
because assemblies really have to be for lawful causes, otherwise they would not be peaceable and
entitled to protection. Neither are the words opinion, protesting and influencing in the definition of public
assembly content based, since they can refer to any subject. The words petitioning the government for
redress of grievances come from the wording of the Constitution, so its use cannot be avoided. Finally,
maximum tolerance is for the protection and benefit of all rallyists and is independent of thecontent of the
expressions in the rally.
Furthermore, the permit can only be denied on the ground of clear and present danger to public order,
public safety, public convenience, public morals or public health. This is a recognized exception to the

exercise of the right even under the Universal Declaration of Human Rights and the International
Covenant on Civil and Political Rights, thus:

Universal Declaration of Human Rights

Article 20
1.

Everyone has the right to freedom of peaceful assembly and association.

xxx

Article 29
1. Everyone has duties to the community in which alone the free and full
development of his personality is possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only to
such limitations as are determined by law solely for the purpose of securing due
recognition and respect for the rights and freedoms of others and of meeting the just
requirements of morality, public order and the general welfare in a democratic society.
3. These rights and freedoms may in no case be exercised contrary to the
purposes and principles of the United Nations.
The International Covenant on Civil and Political Rights
Article 19.
1. Everyone shall have the right to hold opinions without interference.
2.
Everyone shall have the right to freedom of expression; this right shall
include freedom to seek, receive and impart information and ideas of all kinds, regardless
of frontiers, either orally, in writing or in print, in the form of art, or through any other
media of his choice.
3.
The exercise of the rights provided for in paragraph 2 of this article carries
with it special duties and responsibilities. It may therefore be subject to certain
restrictions, but these shall only be such as are provided by law and are necessary:
(a)
(b)

For respect of the rights or reputations of others;

For the protection of national security or of public order (ordre public), or
of public health or morals.

Contrary to petitioners claim, the law is very clear and is nowhere vague in its provisions. Public does not
have to be defined. Its ordinary meaning is well-known. Websters Dictionary defines it, thus:[23]

public, n, x x x 2a: an organized body of people x x x 3: a group of people

distinguished by common interests or characteristics x x x.
Not every expression of opinion is a public assembly. The law refers to rally, demonstration, march,
parade, procession or any other form of mass or concerted action held in a public place. So it does not
cover any and all kinds of gatherings.
Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition only
to the extent needed to avoid a clear and present danger of the substantive evils Congress has the right to
prevent.
There is, likewise, no prior restraint, since the content of the speech is not relevant to the
regulation.
As to the delegation of powers to the mayor, the law provides a precise and sufficient standard the clear
and present danger test stated in Sec. 6(a). The reference to imminent and grave danger of a substantive
evil in Sec. 6(c) substantially means the same thing and is not an inconsistent standard. As to whether
respondent Mayor has the same power independently under Republic Act No. 7160 [24] is thus not
necessary to resolve in these proceedings, and was not pursued by the parties in their arguments.
Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum
through the creation of freedom parks where no prior permit is needed for peaceful assembly and petition
at any time:
SEC. 15. Freedom parks. Every city and municipality in the country shall within
six months after the effectivity of this Act establish or designate at least one suitable
freedom park or mall in their respective jurisdictions which, as far as practicable, shall be
centrally located within the poblacion where demonstrations and meetings may be held at
any time without the need of any prior permit.
In the cities and municipalities of Metropolitan Manila, the respective mayors shall
establish the freedom parks within the period of six months from the effectivity this Act.

This brings up the point, however, of compliance with this provision.

The Solicitor General stated during the oral arguments that, to his knowledge, only Cebu City has
declared a freedom park Fuente Osmea.

That of Manila, the Sunken Gardens, has since been converted into a golf course, he added.
If this is so, the degree of observance of B.P. No. 880s mandate that every city and municipality
set aside a freedom park within six months from its effectivity in 1985, or 20 years ago, would be pathetic
and regrettable. The matter appears to have been taken for granted amidst the swell of freedom that rose
from the peaceful revolution of 1986.
Considering that the existence of such freedom parks is an essential part of the laws system of
regulation of the peoples exercise of their right to peacefully assemble and petition, the Court is
constrained to rule that after thirty (30) days from the finality of this Decision, no prior permit may be
required for the exercise of such right in any public park or plaza of a city or municipality until that city
or municipality shall have complied with Section 15 of the law. For without such alternative forum, to
deny the permit would in effect be to deny the right. Advance notices should, however, be given to the
authorities to ensure proper coordination and orderly proceedings.
The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has
conceded that the use of the term should now be discontinued, since it does not mean anything other than
the maximum tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of respondent
Executive Secretary Eduardo Ermita, submitted by the Solicitor General, thus:
14. The truth of the matter is the policy of calibrated preemptive response is in
consonance with the legal definition of maximum tolerance under Section 3 (c) of B.P.
Blg. 880, which is the highest degree of restraint that the military, police and other
peacekeeping authorities shall observe during a public assembly or in the dispersal of the
same. Unfortunately, however, the phrase maximum tolerance has acquired a different
meaning over the years. Many have taken it to mean inaction on the part of law enforcers
even in the face of mayhem and serious threats to public order. More so, other felt that
they need not bother secure a permit when holding rallies thinking this would be
tolerated. Clearly, the popular connotation of maximum tolerance has departed from its
real essence under B.P. Blg. 880.
15.
It should be emphasized that the policy of maximum tolerance is provided
under the same law which requires all pubic assemblies to have a permit, which allows
the dispersal of rallies without a permit, and which recognizes certain instances when
water cannons may be used. This could only mean that maximum tolerance is not in
conflict with a no permit, no rally policy or with the dispersal and use of water cannons
under certain circumstances for indeed, the maximum amount of tolerance required is
dependent on how peaceful or unruly a mass action is. Our law enforcers should calibrate
their response based on the circumstances on the ground with the view to preempting the
outbreak of violence.
16.
Thus, when I stated that calibrated preemptive response is being
enforced in lieu of maximum tolerance I clearly was not referring to its legal

definition but to the distorted and much abused definition that it has now
acquired. I only wanted to disabuse the minds of the public from the notion that law
enforcers would shirk their responsibility of keeping the peace even when
confronted with dangerously threatening behavior. I wanted to send a message that
we would no longer be lax in enforcing the law but would henceforth follow it to the
letter. Thus I said, we have instructed the PNP as well as the local government units to
strictly enforce a no permit, no rally policy . . . arrest all persons violating the laws of
the land . . . unlawful mass actions will be dispersed. None of these is at loggerheads
with the letter and spirit of Batas Pambansa Blg. 880. It is thus absurd for
complainants to even claim that I ordered my co-respondents to violate any law.[25]
At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880,
CPR serves no valid purpose if it means the same thing as maximum tolerance and is illegal if it means
something else. Accordingly, what is to be followed is and should be that mandated by the law itself,
namely, maximum tolerance, which specifically means the following:
SEC. 3. Definition of terms. For purposes of this Act:
xxx
(c) Maximum tolerance means the highest degree of restraint that the military, police and
other peace keeping authorities shall observe during a public assembly or in the dispersal
of the same.
xxx
SEC. 9. Non-interference by law enforcement authorities. Law enforcement
agencies shall not interfere with the holding of a public assembly. However, to adequately
ensure public safety, a law enforcement contingent under the command of a responsible
police officer
may be detailed and stationed in a place at least one hundred (100) meters away from the
area of activity ready to maintain peace and order at all times.
SEC. 10. Police assistance when requested. It shall be imperative for law
enforcement agencies, when their assistance is requested by the leaders or organizers, to
perform their duties always mindful that their responsibility to provide proper protection
to those exercising their right peaceably to assemble and the freedom of expression is
primordial. Towards this end, law enforcement agencies shall observe the following
guidelines:
(a) Members of the law enforcement contingent who deal with the demonstrators
shall be in complete uniform with their nameplates and units to which they belong
displayed prominently on the front and dorsal parts of their uniform and must observe the
policy of maximum tolerance as herein defined;
(b) The members of the law enforcement contingent shall not carry any kind of
firearms but may be equipped with baton or riot sticks, shields, crash helmets with visor,
gas masks, boots or ankle high shoes with shin guards;

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall
not be used unless the public assembly is attended by actual violence or serious threats of
violence, or deliberate destruction of property.
Sec. 11. Dispersal of public assembly with permit. No public assembly with a
permit shall be dispersed. However, when an assembly becomes violent, the police may
disperse such public assembly as follows:
(a) At the first sign of impending violence, the ranking officer of the law
enforcement contingent shall call the attention of the leaders of the public assembly and
ask the latter to prevent any possible disturbance;
(b) If actual violence starts to a point where rocks or other harmful objects from
the participants are thrown at the police or at the non-participants, or at any property
causing damage to such property, the ranking officer of the law enforcement contingent
shall audibly warn the participants that if the disturbance persists, the public assembly
will be dispersed;
(c) If the violence or disturbance prevailing as stated in the preceding
subparagraph should not stop or abate, the ranking officer of the law enforcement
contingent shall audibly issue a warning to the participants of the public assembly, and
after allowing a reasonable period of time to lapse, shall immediately order it to forthwith
disperse;
(d) No arrest of any leader, organizer or participant shall also be made during the
public assembly unless he violates during the assembly a law, statute, ordinance or any
provision of this Act. Such arrest shall be governed by Article 125 of the Revised Penal
Code, as amended;
(d)
Isolated acts or incidents of disorder or breach of the peace during the
public assembly shall not constitute a ground for dispersal.
xxx
SEC. 12. Dispersal of public assembly without permit. When the public assembly
is held without a permit where a permit is required, the said public assembly may be
peacefully dispersed.
SEC. 13. Prohibited acts. The following shall constitute violations of the Act:
(e)
Obstructing, impeding, disrupting or otherwise denying the exercise of
the right to peaceful assembly;
(f)
The unnecessary firing of firearms by a member of any law enforcement
agency or any person to disperse the public assembly;
(g) Acts described hereunder if committed within one hundred (100) meters from
the area of activity of the public assembly or on the occasion thereof:
xxx
4. the carrying of firearms by members of the law enforcement unit;

5. the interfering with or intentionally disturbing the holding of a public

assembly by the use of a motor vehicle, its horns and loud sound
systems.
Furthermore, there is need to address the situation adverted to by petitioners where mayors do not
act on applications for a permit and when the police demand a permit and the rallyists could not produce
one, the rally is immediately dispersed. In such a situation, as a necessary consequence and part of
maximum tolerance, rallyists who can show the police an application duly filed on a given date can, after
two days from said date, rally in accordance with their application without the need to show a permit, the
grant of the permit being then presumed under the law, and it will be the burden of the authorities to show
that there has been a denial of the application, in which case the rally may be peacefully dispersed
following the procedure of maximum tolerance prescribed by the law.
In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people,
especially freedom of expression and freedom of assembly. In several policy addresses, Chief Justice
Artemio V. Panganiban has repeatedly vowed to uphold the liberty of our people and to nurture their
prosperity. He said that in cases involving liberty, the scales of justice should weigh heavily against the
government and in favor of the poor, the oppressed, the marginalized, the dispossessed and the
weak. Indeed, laws and actions that restrict fundamental rights come to the courts with a heavy
presumption against their validity. These laws and actions are subjected to heightened scrutiny.[26]
For this reason, the so-called calibrated preemptive response policy has no place in our legal
firmament and must be struck down as a darkness that shrouds freedom. It merely confuses our people
and is used by some police agents to justify abuses. On the other hand, B.P. No. 880 cannot be
condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates the use
of public places as to the time, place and manner of assemblies. Far from being insidious, maximum
tolerance is for the benefit of rallyists, not the government. The delegation to the mayors of the power to
issue rally permits is valid because it is subject to the constitutionally-sound clear and present danger
standard.
In this Decision, the Court goes even one step further in safeguarding liberty by giving local
governments a deadline of 30 days within which to designate specific freedom parks as provided under
B.P. No. 880. If, after that period, no such parks are so identified in accordance with Section 15 of the
law, all public parks and plazas of the municipality or city concerned shall in effect be deemed freedom
parks; no prior permit of whatever kind shall be required to hold an assembly therein. The only

requirement will be written notices to the police and the mayors office to allow proper coordination and
orderly activities.
WHEREFORE, the petitions are GRANTED in part, and respondents, more particularly the
Secretary of the Interior and Local Governments, are DIRECTED to take all necessary steps for the
immediate compliance with Section 15 of Batas Pambansa No. 880 through the establishment or
designation of at least one suitable freedom park or plaza in every city and municipality of the country.
After thirty (30) days from the finality of this Decision, subject to the giving of advance notices, no prior
permit shall be required to exercise the right to peaceably assemble and petition in the public parks or
plazas of a city or municipality that has not yet complied with Section 15 of the
law. Furthermore,Calibrated Preemptive Response (CPR), insofar as it would purport to differ from or
be in lieu of maximum tolerance, is NULL and VOID and respondents
are ENJOINEDto REFRAIN from using it and to STRICTLY OBSERVE the requirements of
maximum tolerance. The petitions are DISMISSED in all other respects, and
theCONSTITUTIONALITY of Batas Pambansa No. 880 is SUSTAINED.
No costs.
SO ORDERED.

G.R. Nos. 172070-72

June 1, 2007

VICENTE P. LADLAD, NATHANAEL S. SANTIAGO, RANDALL B. ECHANIS, and REY CLARO C.

CASAMBRE,Petitioners,
vs.
SENIOR STATE PROSECUTOR EMMANUEL Y. VELASCO, SENIOR STATE PROSECUTOR
JOSELITA C. MENDOZA, SENIOR STATE PROSECUTOR AILEEN MARIE S. GUTIERREZ,
STATE PROSECUTOR IRWIN A. MARAYA, and STATE PROSECUTOR MERBA A. WAGA, in
their capacity as members of the Department of Justice panel of prosecutors investigating
I.S. Nos. 2006-225, 2006-226 and 2006-234, JUSTICE SECRETARY RAUL M. GONZALEZ,
DIRECTOR GENERAL ARTURO C. LOMIBAO, in his capacity as Chief, Philippine National
Police, P/CSUPT. RODOLFO B. MENDOZA, JR., and P/SUPT. YOLANDA G.
TANIGUE,Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
G.R. Nos. 172074-76

June 1, 2007

LIZA L. MAZA, JOEL G. VIRADOR, SATURNINO C. OCAMPO, TEODORO A. CASIO, CRISPIN

B. BELTRAN, and RAFAEL V. MARIANO, Petitioners,
vs.
RAUL M. GONZALEZ, in his capacity as Secretary of the Department of Justice, JOVENCITO
R. ZUO, in his capacity as Chief State Prosecutor, the Panel of Investigating Prosecutors
composed of EMMANUEL Y. VELASCO, JOSELITA C. MENDOZA, AILEEN MARIE S.
GUTIERREZ, IRWIN A. MARAYA and MERBA A. WAGA (Panel), RODOLFO B. MENDOZA, in his
capacity as Acting Deputy Director, Directorate for Investigation and Detective Management
(DIDM), YOLANDA G. TANIGUE, in her capacity as Acting Executive Officer of DIDM, the
DEPARTMENT OF JUSTICE (DOJ), and the PHILIPPINE NATIONAL POLICE
(PNP), Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 175013

June 1, 2007

CRISPIN B. BELTRAN, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, SECRETARY RAUL M. GONZALEZ, in his capacity as the
Secretary of Justice and overall superior of the Public Prosecutors, HONORABLE
ENCARNACION JAJA G. MOYA, in her capacity as Presiding Judge of Regional Trial Court of
Makati City, Branch 146, and HONORABLE ELMO M. ALAMEDA, in his capacity as Presiding
Judge of Regional Trial Court of Makati City, Branch 150, Respondents.
DECISION
CARPIO, J.:
The Case
These are consolidated petitions for the writs of prohibition and certiorari to enjoin petitioners
prosecution for Rebellion and to set aside the rulings of the Department of Justice (DOJ) and the

Regional Trial Court of Makati City (RTC Makati) on the investigation and prosecution of petitioners
cases.
The Facts
Petitioner in G.R. No. 175013, Crispin B. Beltran (Beltran), and petitioners in G.R. Nos. 172074-76,
Liza L. Maza (Maza), Joel G. Virador (Virador), Saturnino C. Ocampo (Ocampo), Teodoro A. Casio
(Casio), and Rafael V. Mariano (Mariano),1 are members of the House of Representatives
representing various party-list groups.2Petitioners in G.R. Nos. 172070-72 are private individuals.
Petitioners all face charges for Rebellion under Article 134 in relation to Article 135 of the Revised
Penal Code in two criminal cases pending with the RTC Makati.
G.R. No. 175013 (The Beltran Petition)
Following the issuance by President Gloria Macapagal-Arroyo of Presidential Proclamation No. 1017
on 24 February 2006 declaring a "State of National Emergency," police officers 3 arrested Beltran on
25 February 2006, while he was en route to Marilao, Bulacan, and detained him in Camp Crame,
Quezon City. Beltran was arrested without a warrant and the arresting officers did not inform Beltran
of the crime for which he was arrested. On that evening, Beltran was subjected to an inquest at the
Quezon City Hall of Justice for Inciting to Sedition under Article 142 of the Revised Penal Code
based on a speech Beltran allegedly gave during a rally in Quezon City on 24 February 2006, on the
occasion of the 20th anniversary of the EDSA Revolution. The inquest was based on the joint affidavit
of Beltrans arresting officers who claimed to have been present at the rally. The inquest
prosecutor4 indicted Beltran and filed the corresponding Information with the Metropolitan Trial Court
of Quezon City (MeTC).5
The authorities brought back Beltran to Camp Crame where, on 27 February 2006, he was
subjected to a second inquest, with 1st Lt. Lawrence San Juan (San Juan), this time for Rebellion. A
panel of State prosecutors6 from the DOJ conducted this second inquest. The inquest was based on
two letters, both dated 27 February 2006, of Yolanda Tanigue (Tanigue) and of Rodolfo Mendoza
(Mendoza). Tanigue is the Acting Executive Officer of the Criminal Investigation and Detection Group
(CIDG), Philippine National Police (PNP), while Mendoza is the Acting Deputy Director of the CIDG.
The letters referred to the DOJ for appropriate action the results of the CIDGs investigation
implicating Beltran, the petitioners in G.R. Nos. 172074-76, San Juan, and several others as
"leaders and promoters" of an alleged foiled plot to overthrow the Arroyo government. The plot was
supposed to be carried out jointly by members of the Communist Party of the Philippines (CPP) and
the Makabayang Kawal ng Pilipinas (MKP), which have formed a "tactical alliance."
On 27 February 2006, the DOJ panel of prosecutors issued a Resolution finding probable cause to
indict Beltran and San Juan as "leaders/promoters" of Rebellion. The panel then filed an Information
with the RTC Makati. The Information alleged that Beltran, San Juan, and other individuals
"conspiring and confederating with each other, x x x, did then and there willfully, unlawfully, and
feloniously form a tactical alliance between the CPP/NPA, renamed as Partidong Komunista ng
Pilipinas (PKP) and its armed regular members as Katipunan ng Anak ng Bayan (KAB) with the
Makabayang Kawal ng Pilipinas (MKP) and thereby rise publicly and take up arms against the duly
constituted government, x x x."7 The Information, docketed as Criminal Case No. 06-452, was raffled
to Branch 137 under Presiding Judge Jenny Lind R. Aldecoa-Delorino (Judge Delorino).
Beltran moved that Branch 137 make a judicial determination of probable cause against him. 8 Before
the motion could be resolved, Judge Delorino recused herself from the case which was re-raffled to
Branch 146 under Judge Encarnacion Jaja-Moya (Judge Moya).

In its Order dated 31 May 2006, Branch 146 sustained the finding of probable cause against
Beltran.9 Beltran sought reconsideration but Judge Moya also inhibited herself from the case without
resolving Beltrans motion. Judge Elmo M. Alameda of Branch 150, to whom the case was re-raffled,
issued an Order on 29 August 2006 denying Beltrans motion.
Hence, the petition in G.R. No. 175013 to set aside the Orders dated 31 May 2006 and 29 August
2006 and to enjoin Beltrans prosecution.
In his Comment to the petition, the Solicitor General claims that Beltrans inquest for Rebellion was
valid and that the RTC Makati correctly found probable cause to try Beltran for such felony.
G.R. Nos. 172070-72 and 172074-76 (The Maza and Ladlad Petitions)
Based on Tanigue and Mendozas letters, the DOJ sent subpoenas to petitioners on 6 March 2006
requiring them to appear at the DOJ Office on 13 March 2006 "to get copies of the complaint and its
attachment." Prior to their receipt of the subpoenas, petitioners had quartered themselves inside the
House of Representatives building for fear of being subjected to warrantless arrest.
During the preliminary investigation on 13 March 2006, the counsel for the CIDG presented a
masked man, later identified as Jaime Fuentes (Fuentes), who claimed to be an eyewitness against
petitioners. Fuentes subscribed to his affidavit before respondent prosecutor Emmanuel Velasco
who then gave copies of the affidavit to media members present during the proceedings. The panel
of prosecutors10 gave petitioners 10 days within which to file their counter-affidavits. Petitioners were
furnished the complete copies of documents supporting the CIDGs letters only on 17 March 2006.
Petitioners moved for the inhibition of the members of the prosecution panel for lack of impartiality
and independence, considering the political milieu under which petitioners were investigated, the
statements that the President and the Secretary of Justice made to the media regarding petitioners
case,11 and the manner in which the prosecution panel conducted the preliminary investigation. The
DOJ panel of prosecutors denied petitioners motion on 22 March 2006. Petitioners sought
reconsideration and additionally prayed for the dismissal of the cases. However, the panel of
prosecutors denied petitioners motions on 4 April 2006.
Petitioners now seek the nullification of the DOJ Orders of 22 March 2006 and 4 April 2006.
Acting on petitioners prayer for the issuance of an injunctive writ, the Court issued a status quo
order on 5 June 2006. Prior to this, however, the panel of prosecutors, on 21 April 2006, issued a
Resolution finding probable cause to charge petitioners and 46 others with Rebellion. The
prosecutors filed the corresponding Information with Branch 57 of the RTC Makati, docketed as
Criminal Case No. 06-944 (later consolidated with Criminal Case No. 06-452 in Branch 146),
charging petitioners and their co-accused as "principals, masterminds, [or] heads" of a
Rebellion.12 Consequently, the petitioners in G.R. Nos. 172070-72 filed a supplemental petition to
enjoin the prosecution of Criminal Case No. 06-944.
In his separate Comment to the Maza petition, the Solicitor General submits that the preliminary
investigation of petitioners was not tainted with irregularities. The Solicitor General also claims that
the filing of Criminal Case No. 06-944 has mooted the Maza petition.
The Issues
The petitions raise the following issues:

1. In G.R. No. 175013, (a) whether the inquest proceeding against Beltran for Rebellion was valid
and (b) whether there is probable cause to indict Beltran for Rebellion; and
2. In G.R. Nos. 172070-72 and 172074-76, whether respondent prosecutors should be enjoined from
continuing with the prosecution of Criminal Case No. 06-944. 13
The Ruling of the Court
We find the petitions meritorious. On the Beltran Petition
The Inquest Proceeding against Beltran for Rebellion is Void.
Inquest proceedings are proper only when the accused has been lawfully arrested without
warrant.14 Section 5, Rule 113 of the Revised Rules of Criminal Procedure provides the instances
when such warrantless arrest may be effected, thus:
Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant,
arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has committed it; and
xxxx
In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance
with section 7 of Rule 112.
The joint affidavit of Beltrans arresting officers15 states that the officers arrested Beltran, without a
warrant,16 for Inciting to Sedition, and not for Rebellion. Thus, the inquest prosecutor could only have
conducted as he did conduct an inquest for Inciting to Sedition and no other. Consequently,
when another group of prosecutors subjected Beltran to a second inquest proceeding for Rebellion,
they overstepped their authority rendering the second inquest void. None of Beltrans arresting
officers saw Beltran commit, in their presence, the crime of Rebellion. Nor did they have personal
knowledge of facts and circumstances that Beltran had just committed Rebellion, sufficient to form
probable cause to believe that he had committed Rebellion. What these arresting officers alleged in
their affidavit is that they saw and heard Beltran make an allegedly seditious speech on 24 February
2006.17
Indeed, under DOJ Circular No. 61, dated 21 September 1993, the initial duty of the inquest officer is
to determine if the arrest of the detained person was made "in accordance with the provisions of
paragraphs (a) and (b) of Section 5, Rule 113."18 If the arrest was not properly effected, the inquest
officer should proceed under Section 9 of Circular No. 61 which provides:
Where Arrest Not Properly Effected. Should the Inquest Officer find that the arrest was not made
in accordance with the Rules, he shall:
a) recommend the release of the person arrested or detained;

b) note down the disposition on the referral document;

c) prepare a brief memorandum indicating the reasons for the action taken; and
d) forward the same, together with the record of the case, to the City or Provincial Prosecutor
for appropriate action.
Where the recommendation for the release of the detained person is approved by the City or
Provincial Prosecutor but the evidence on hand warrant the conduct of a regular preliminary
investigation, the order of release shall be served on the officer having custody of said detainee and
shall direct the said officer to serve upon the detainee the subpoena or notice of preliminary
investigation, together with the copies of the charge sheet or complaint, affidavit or sworn statements
of the complainant and his witnesses and other supporting evidence. (Emphasis supplied)
For the failure of Beltrans panel of inquest prosecutors to comply with Section 7, Rule 112 in relation
to Section 5, Rule 113 and DOJ Circular No. 61, we declare Beltrans inquest void. 19 Beltran would
have been entitled to a preliminary investigation had he not asked the trial court to make a judicial
determination of probable cause, which effectively took the place of such proceeding.
There is No Probable Cause to Indict
Beltran for Rebellion.
Probable cause is the "existence of such facts and circumstances as would excite the belief in a
reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged
was guilty of the crime for which he was prosecuted." 20 To accord respect to the discretion granted to
the prosecutor and for reasons of practicality, this Court, as a rule, does not interfere with the
prosecutors determination of probable cause for otherwise, courts would be swamped with petitions
to review the prosecutors findings in such investigations.21However, in the few exceptional cases
where the prosecutor abused his discretion by ignoring a clear insufficiency of evidence to support a
finding of probable cause, thus denying the accused his right to substantive and procedural due
process, we have not hesitated to intervene and exercise our review power under Rule 65 to
overturn the prosecutors findings.22 This exception holds true here.
Rebellion under Article 134 of the Revised Penal Code is committed
[B]y rising publicly and taking arms against the Government for the purpose of removing from the
allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part
thereof, or any body of land, naval, or other armed forces or depriving the Chief Executive or the
Legislature, wholly or partially, of any of their powers or prerogatives.
The elements of the offense are:
1. That there be a (a) public uprising and (b) taking arms against the Government; and
2. That the purpose of the uprising or movement is either
(a) to remove from the allegiance to said Government or its laws:
(1) the territory of the Philippines or any part thereof; or

(2) any body of land, naval, or other armed forces; or

(b) to deprive the Chief Executive or Congress, wholly or partially, of any of their
powers and prerogatives.23
Thus, by its nature, rebellion is a crime of the masses or multitudes involving crowd action done in
furtherance of a political end.24
The evidence before the panel of prosecutors who conducted the inquest of Beltran for Rebellion
consisted of the affidavits and other documents25 attached to the CIDG letters. We have gone over
these documents and find merit in Beltrans contention that the same are insufficient to show
probable cause to indict him for Rebellion. The bulk of the documents consists of affidavits, some of
which were sworn before a notary public, executed by members of the military and some civilians.
Except for two affidavits, executed by a certain Ruel Escala (Escala), dated 20 Febuary 2006, 26 and
Raul Cachuela (Cachuela), dated 23 February 2006, 27 none of the affidavits mentions Beltran.28 In his
affidavit, Escala recounted that in the afternoon of 20 February 2006, he saw Beltran, Ocampo,
Casio, Maza, Mariano, Virador, and other individuals on board a vehicle which entered a chicken
farm in Bucal, Padre Garcia, Batangas and that after the passengers alighted, they were met by
another individual who looked like San Juan. For his part, Cachuela stated that he was a former
member of the CPP and that (1) he attended the CPPs "10th Plenum" in 1992 where he saw Beltran;
(2) he took part in criminal activities; and (3) the arms he and the other CPP members used were
purchased partly from contributions by Congressional members, like Beltran, who represent party-list
groups affiliated with the CPP.
The allegations in these affidavits are far from the proof needed to indict Beltran for taking part in an
armed public uprising against the government. What these documents prove, at best, is that Beltran
was in Bucal, Padre Garcia, Batangas on 20 February 2006 and that 14 years earlier, he was
present during the 1992 CPP Plenum. None of the affidavits stated that Beltran committed specific
acts of promoting, maintaining, or heading a rebellion as found in the DOJ Resolution of 27 February
2006. None of the affidavits alleged that Beltran is a leader of a rebellion. Beltrans alleged presence
during the 1992 CPP Plenum does not automatically make him a leader of a rebellion.
In fact, Cachuelas affidavit stated that Beltran attended the 1992 CPP Plenum as "Chairman,
Kilusang Mayo Uno (KMU)." Assuming that Beltran is a member of the CPP, which Beltran does not
acknowledge, mere membership in the CPP does not constitute rebellion. 29 As for the alleged
funding of the CPPs military equipment from Beltrans congressional funds, Cachuelas affidavit
merely contained a general conclusion without any specific act showing such funding. Cachuela
merely alleged that "ang mga ibang mga pondo namin ay galing sa mga party list na naihalal sa
Kongreso tulad ng BAYAN MUNA pimumunuan nila SATUR OCAMPO at CRISPIN BELTRAN, x x
x."30 Such a general conclusion does not establish probable cause.
In his Comment to Beltrans petition, the Solicitor General points to Fuentes affidavit, dated 25
February 2006,31as basis for the finding of probable cause against Beltran as Fuentes provided
details in his statement regarding meetings Beltran and the other petitioners attended in 2005 and
2006 in which plans to overthrow violently the Arroyo government were allegedly discussed, among
others.
The claim is untenable. Fuentes affidavit was not part of the attachments the CIDG referred to the
DOJ on 27 February 2006. Thus, the panel of inquest prosecutors did not have Fuentes affidavit in
their possession when they conducted the Rebellion inquest against Beltran on that day. Indeed,
although this affidavit is dated 25 February 2006, the CIDG first presented it only during the

preliminary investigation of the other petitioners on 13 March 2006 during which Fuentes subscribed
to his statement before respondent prosecutor Velasco.
Respondent prosecutors later tried to remedy this fatal defect by motu proprio submitting to Branch
137 of the RTC Makati Fuentes affidavit as part of their Comment to Beltrans motion for judicial
determination of probable cause. Such belated submission, a tacit admission of the dearth of
evidence against Beltran during the inquest, does not improve the prosecutions case. Assuming
them to be true, what the allegations in Fuentes affidavit make out is a case for Conspiracy to
Commit Rebellion, punishable under Article 136 of the Revised Penal Code, not Rebellion under
Article 134. Attendance in meetings to discuss, among others, plans to bring down a government is a
mere preparatory step to commit the acts constituting Rebellion under Article 134. Even the
prosecution acknowledged this, since the felony charged in the Information against Beltran and San
Juan in Criminal Case No. 06-452 is Conspiracy to Commit Rebellion and not Rebellion. The
Information merely alleged that Beltran, San Juan, and others conspired to form a "tactical alliance"
to commit Rebellion. Thus, the RTC Makati erred when it nevertheless found probable cause to try
Beltran for Rebellion based on the evidence before it.
The minutes32 of the 20 February 2006 alleged meeting in Batangas between members of MKP and
CPP, including Beltran, also do not detract from our finding. Nowhere in the minutes was Beltran
implicated. While the minutes state that a certain "Cris" attended the alleged meeting, there is no
other evidence on record indicating that "Cris" is Beltran. San Juan, from whom the "flash drive"
containing the so-called minutes was allegedly taken, denies knowing Beltran.
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To repeat, none of the affidavits alleges that Beltran is promoting, maintaining, or heading a
Rebellion. The Information in Criminal Case No. 06-452 itself does not make such allegation. Thus,
even assuming that the Information validly charges Beltran for taking part in a Rebellion, he is
entitled to bail as a matter of right since there is no allegation in the Information that he is a leader or
promoter of the Rebellion.33 However, the Information in fact merely charges Beltran for "conspiring
and confederating" with others in forming a "tactical alliance" to commit rebellion. As worded, the
Information does not charge Beltran with Rebellion but with Conspiracy to Commit Rebellion, a
bailable offense.34
On the Ladlad and Maza Petitions
The Preliminary Investigation was Tainted
With Irregularities.
As in the determination of probable cause, this Court is similarly loath to enjoin the prosecution of
offenses, a practice rooted on public interest as the speedy closure of criminal investigations fosters
public safety.35However, such relief in equity may be granted if, among others, the same is necessary
(a) to prevent the use of the strong arm of the law in an oppressive and vindictive manner 36 or (b) to
afford adequate protection to constitutional rights. 37 The case of the petitioners in G.R. Nos. 17207072 and 172074-76 falls under these exceptions.
The procedure for preliminary investigation of offenses punishable by at least four years, two months
and one day is outlined in Section 3, Rule 112 of the Revised Rules of Criminal Procedure, thus:
Procedure.The preliminary investigation shall be conducted in the following manner:

(a) The complaint shall state the address of the respondent and shall be accompanied by the
affidavits of the complainant and his witnesses, as well as other supporting documents to
establish probable cause. They shall be in such number of copies as there are respondents,
plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before
any prosecutor or government official authorized to administer oath, or, in their absence or
unavailability, before a notary public, each of whom must certify that he personally examined
the affiants and that he is satisfied that they voluntarily executed and understood their
affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either
dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the
respondent attaching to it a copy of the complaint and its supporting affidavits and
documents.
The respondent shall have the right to examine the evidence submitted by the complainant
which he may not have been furnished and to copy them at his expense. If the evidence is
voluminous, the complainant may be required to specify those which he intends to present
against the respondent, and these shall be made available for examination or copying by the
respondent at his expense.
Objects as evidence need not be furnished a party but shall be made available for
examination, copying, or photographing at the expense of the requesting party.
(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting
affidavits and documents, the respondent shall submit his counter-affidavit and that of his
witnesses and other supporting documents relied upon for his defense. The counteraffidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this
section, with copies thereof furnished by him to the complainant. The respondent shall not be
allowed to file a motion to dismiss in lieu of a counter-affidavit.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counteraffidavits within the ten (10) day period, the investigating officer shall resolve the complaint
based on the evidence presented by the complainant.
(e) The investigating officer may set a hearing if there are facts and issues to be clarified
from a party or a witness. The parties can be present at the hearing but without the right to
examine or cross-examine. They may, however, submit to the investigating officer questions
which may be asked to the party or witness concerned.
The hearing shall be held within ten (10) days from submission of the counter-affidavits and
other documents or from the expiration of the period for their submission. It shall be
terminated within five (5) days.
(f) Within ten (10) days after the investigation, the investigating officer shall determine
whether or not there is sufficient ground to hold the respondent for trial. (Emphasis supplied)
Instead of following this procedure scrupulously, as what this Court had mandated in an earlier
ruling, "so that the constitutional right to liberty of a potential accused can be protected from any
material damage,"38 respondent prosecutors nonchalantly disregarded it. Respondent prosecutors
failed to comply with Section 3(a) of Rule 112 which provides that the complaint (which, with its
attachment, must be of such number as there are respondents) be accompanied by the affidavits of
the complainant and his witnesses, subscribed and sworn to before any prosecutor or government

official authorized to administer oath, or, in their absence or unavailability, before a notary public.
Respondent prosecutors treated the unsubscribed letters of Tanigue and Mendoza of the CIDG, PNP
as complaints39 and accepted the affidavits attached to the letters even though some of them were
notarized by a notary public without any showing that a prosecutor or qualified government official
was unavailable as required by Section 3(a) of Rule 112.
Further, Section 3(b) of Rule 112 mandates that the prosecutor, after receiving the complaint, must
determine if there are grounds to continue with the investigation. If there is none, he shall dismiss
the case, otherwise he shall "issue a subpoena to the respondents." Here, after receiving the CIDG
letters, respondent prosecutors peremptorily issued subpoenas to petitioners requiring them to
appear at the DOJ office on 13 March 2006 "to secure copies of the complaints and its attachments."
During the investigation, respondent prosecutors allowed the CIDG to present a masked Fuentes
who subscribed to an affidavit before respondent prosecutor Velasco. Velasco proceeded to
distribute copies of Fuentes affidavit not to petitioners or their counsels but to members of the media
who covered the proceedings. Respondent prosecutors then required petitioners to submit their
counter-affidavits in 10 days. It was only four days later, on 17 March 2006, that petitioners received
the complete copy of the attachments to the CIDG letters.
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These uncontroverted facts belie respondent prosecutors statement in the Order of 22 March 2006
that the preliminary investigation "was done in accordance with the Revised Rules o[f] Criminal
Procedure."40 Indeed, by peremptorily issuing the subpoenas to petitioners, tolerating the
complainants antics during the investigation, and distributing copies of a witness affidavit to
members of the media knowing that petitioners have not had the opportunity to examine the charges
against them, respondent prosecutors not only trivialized the investigation but also lent credence to
petitioners claim that the entire proceeding was a sham.
A preliminary investigation is the crucial sieve in the criminal justice system which spells for an
individual the difference between months if not years of agonizing trial and possibly jail term, on the
one hand, and peace of mind and liberty, on the other hand. Thus, we have characterized the right to
a preliminary investigation as not "a mere formal or technical right" but a "substantive" one, forming
part of due process in criminal justice.41 This especially holds true here where the offense charged is
punishable by reclusion perpetua and may be non-bailable for those accused as principals.
Contrary to the submission of the Solicitor General, respondent prosecutors filing of the Information
against petitioners on 21 April 2006 with Branch 57 of the RTC Makati does not moot the petitions in
G.R. Nos. 172070-72 and 172074-76. Our power to enjoin prosecutions cannot be frustrated by the
simple filing of the Information with the trial court.
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On Respondent Prosecutors Lack of Impartiality

We find merit in petitioners doubt on respondent prosecutors impartiality. Respondent Secretary of
Justice, who exercises supervision and control over the panel of prosecutors, stated in an interview
on 13 March 2006, the day of the preliminary investigation, that, "We [the DOJ] will
just declare probable cause, then its up to the [C]ourt to decide x x x."42 Petitioners raised this issue
in their petition,43 but respondents never disputed the veracity of this statement. This clearly shows
pre-judgment, a determination to file the Information even in the absence of probable cause.
A Final Word
The obvious involvement of political considerations in the actuations of respondent Secretary of
Justice and respondent prosecutors brings to mind an observation we made in another equally
politically charged case. We reiterate what we stated then, if only to emphasize the importance of

maintaining the integrity of criminal prosecutions in general and preliminary investigations in

particular, thus:
[W]e cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving the
impression that their noble office is being used or prostituted, wittingly or unwittingly, for political
ends, or other purposes alien to, or subversive of, the basic and fundamental objective of observing
the interest of justice evenhandedly, without fear or favor to any and all litigants alike, whether rich or
poor, weak or strong, powerless or mighty. Only by strict adherence to the established procedure
may be publics perception of the impartiality of the prosecutor be enhanced. 44
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WHEREFORE, we GRANT the petitions. In G.R. No. 175013, we SET ASIDE the Order dated 31
May 2006 of the Regional Trial Court, Makati City, Branch 146 and the Order dated 29 August 2006
of the Regional Trial Court, Makati City, Branch 150. In G.R. Nos. 172070-72 and 172074-76, we
SET ASIDE the Orders dated 22 March 2006 and 4 April 2006 issued by respondent prosecutors.
We ORDER the Regional Trial Court, Makati City, Branch 150 to DISMISS Criminal Case Nos. 06452 and 06-944.
SO ORDERED.