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Political Law Review Cases under Atty. Sandoval
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EN BANC
PROF. MERLIN M. MAGALLONA, G.R No. 187167
AKBAYAN PARTY-LIST REP. RISA
HONTIVEROS, PROF. HARRY C. Present:
ROQUE, JR., AND UNIVERSITY OF
THE PHILIPPINES COLLEGE OF CORONA, C.J.,
LAW STUDENTS, ALITHEA CARPIO,
BARBARA ACAS, VOLTAIRE VELASCO, JR.,
ALFERES, CZARINA MAY LEONARDO-DE CASTRO,
ALTEZ, FRANCIS ALVIN ASILO, BRION,
SHERYL BALOT, RUBY AMOR PERALTA,
BARRACA, JOSE JAVIER BAUTISTA, BERSAMIN,
ROMINA BERNARDO, VALERIE DEL CASTILLO,
PAGASA BUENAVENTURA, EDAN ABAD,
MARRI CAETE, VANN ALLEN VILLARAMA, JR.,
DELA CRUZ, RENE DELORINO, PEREZ,
PAULYN MAY DUMAN, SHARON MENDOZA, and
ESCOTO, RODRIGO FAJARDO III, SERENO, JJ.
GIRLIE FERRER, RAOULLE OSEN
FERRER, CARLA REGINA GREPO,
ANNA MARIE CECILIA GO, IRISH
KAY KALAW, MARY ANN JOY LEE,
MARIA LUISA MANALAYSAY,
MIGUEL RAFAEL MUSNGI,
MICHAEL OCAMPO, JAKLYN HANNA
PINEDA, WILLIAM RAGAMAT,
MARICAR RAMOS, ENRIK FORT
REVILLAS, JAMES MARK TERRY
RIDON, JOHANN FRANTZ RIVERA IV,
CHRISTIAN RIVERO, DIANNE MARIE
ROA, NICHOLAS SANTIZO, MELISSA
CHRISTINA SANTOS, CRISTINE MAE
TABING, VANESSA ANNE TORNO,
MARIA ESTER VANGUARDIA, and
MARCELINO VELOSO III,
Petitioners,
- versus -
HON. EDUARDO ERMITA, IN HIS
CAPACITY AS EXECUTIVE
SECRETARY, HON. ALBERTO
ROMULO, IN HIS CAPACITY AS
SECRETARY OF THE DEPARTMENT
OF FOREIGN AFFAIRS, HON.
ROLANDO ANDAYA, IN HIS CAPACITY
AS SECRETARY OF THE DEPARTMENT
OF BUDGET AND MANAGEMENT,
HON. DIONY VENTURA, IN HIS
CAPACITY AS ADMINISTRATOR OF
THE NATIONAL MAPPING &
RESOURCE INFORMATION
AUTHORITY, and HON. HILARIO
DAVIDE, JR., IN HIS CAPACITY AS
REPRESENTATIVE OF THE
PERMANENT MISSION OF THE
REPUBLIC OF THE PHILIPPINES Promulgated:
TO THE UNITED NATIONS,
Respondents. July 16, 2011
x -----------------------------------------------------------------------------------------x
D E C I S I O N
CARPIO, J.:
The Case
This original action for the writs of certiorari and prohibition assails the constitutionality of Republic Act No. 95221 (RA 9522) adjusting the countrys archipelagic baselines and classifying the baseline regime of nearby territories.
The Antecedents
In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the maritime baselines of the Philippines as an archipelagic State.3 This law followed the framing of the Convention on the Territorial Sea and the Contiguous Zone in 1958 (UNCLOS I),4 codifying, among others, the sovereign right of States parties over their territorial sea, the breadth of which, however, was left undetermined. Attempts to fill this void during the second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus, domestically, RA 3046 remained unchanged for nearly five decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA 5446]) correcting typographical errors and reserving the drawing of baselines around Sabah in North Borneo.
In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under scrutiny. The change was prompted by the need to make RA 3046 compliant with the terms of the United Nations Convention on the Law of the Sea (UNCLOS III),5 which the Philippines ratified on 27 February 1984.6 Among others, UNCLOS III prescribes the water-land ratio, length, and contour of baselines of archipelagic States like the Philippines7 and sets the deadline for the filing of application for the extended continental shelf.8 Complying with these requirements, RA 9522 shortened one baseline, optimized the location of some basepoints around the Philippine archipelago and classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the Scarborough Shoal, as regimes of islands whose islands generate their own applicable maritime zones.
Petitioners, professors of law, law students and a legislator, in their respective capacities as citizens, taxpayers or x x x legislators,9 as the case may be, assail the constitutionality of RA 9522 on two principal grounds, namely: (1) RA 9522 reduces Philippine maritime territory, and logically, the reach of the Philippine states sovereign power, in violation of Article 1 of the 1987 Constitution,10 embodying the terms of the Treaty of Paris11 and ancillary treaties,12 and (2) RA 9522 opens the countrys waters landward of the baselines to maritime passage by all vessels and aircrafts, undermining Philippine sovereignty and national security, contravening the countrys nuclear-free policy, and damaging marine resources, in violation of relevant constitutional provisions.13
In addition, petitioners contend that RA 9522s treatment of the KIG as regime of islands not only results in the loss of a large maritime area but also prejudices the livelihood of subsistence fishermen.14 To buttress their argument of territorial diminution, petitioners facially attack RA 9522 for what it excluded and included its failure to reference either the Treaty of Paris or Sabah and its use of
UNCLOS IIIs framework of regime of islands to determine the maritime zones of the KIG and the Scarborough Shoal.
Commenting on the petition, respondent officials raised threshold issues questioning (1) the petitions compliance with the case or controversy requirement for judicial review grounded on petitioners alleged lack of locus standi and (2) the propriety of the writs of certiorari and prohibition to assail the constitutionality of RA 9522. On the merits, respondents defended RA 9522 as the countrys compliance with the terms of UNCLOS III, preserving Philippine territory over the KIG or Scarborough Shoal. Respondents add that RA 9522 does not undermine the countrys security, environment and economic interests or relinquish the Philippines claim over Sabah.
Respondents also question the normative force, under international law, of petitioners assertion that what Spain ceded to the United States under the Treaty of Paris were the islands and all the waters found within the boundaries of the rectangular area drawn under the Treaty of Paris.
We left unacted petitioners prayer for an injunctive writ.
The Issues
The petition raises the following issues:
1. Preliminarily
1. Whether petitioners possess locus standi to bring this suit; and
2. Whether the writs of certiorari and prohibition are the proper remedies to assail the constitutionality of RA 9522.
2. On the merits, whether RA 9522 is unconstitutional.
The Ruling of the Court
On the threshold issues, we hold that (1) petitioners possess locus standi to bring this suit as citizens and (2) the writs of certiorari and prohibition are proper remedies to test the constitutionality of RA 9522. On the merits, we find no basis to declare RA 9522 unconstitutional.
On the Threshold Issues
Petitioners Possess Locus
Standi as Citizens
Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers because the petition alleges neither infringement of legislative prerogative15 nor misuse of public funds,16 occasioned by the passage and implementation of RA 9522. Nonetheless, we recognize petitioners locus standi as citizens with constitutionally sufficient interest in the resolution of the merits of the case which undoubtedly raises issues of national significance necessitating urgent resolution. Indeed, owing to the peculiar nature of RA 9522, it is understandably difficult to find other litigants possessing a more direct and specific interest to bring the suit, thus satisfying one of the requirements for granting citizenship standing.17
The Writs of Certiorari and Prohibition
Are Proper Remedies to Test
the Constitutionality of Statutes
In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict observance of the offices of the writs of certiorari and prohibition, noting that the writs cannot issue absent any showing of grave abuse of discretion in the exercise of judicial, quasi-judicial or ministerial powers on the part of respondents and resulting prejudice on the part of petitioners.18
Respondents submission holds true in ordinary civil proceedings. When this Court exercises its constitutional power of judicial review, however, we have, by tradition, viewed the writs of certiorari and prohibition as proper remedial vehicles to test the constitutionality of statutes,19 and indeed, of acts of other branches of government.20Issues of constitutional import are sometimes crafted out of statutes which, while having no bearing on the personal interests of the petitioners, carry such relevance in the life of this nation that the Court inevitably finds itself constrained to take cognizance of the case and pass upon the issues raised, non-compliance with the letter of procedural rules notwithstanding. The statute sought to be reviewed here is one such law.
RA 9522 is Not Unconstitutional
RA 9522 is a Statutory Tool
to Demarcate the Countrys
Maritime Zones and Continental
Shelf Under UNCLOS III, not to
Delineate Philippine Territory
Petitioners submit that RA 9522 dismembers a large portion of the national territory21 because it discards the pre-UNCLOS III demarcation of Philippine territory under the Treaty of Paris and related treaties, successively encoded in the definition of national territory under the 1935, 1973 and 1987 Constitutions. Petitioners theorize that this constitutional definition trumps any treaty or statutory provision denying the Philippines sovereign control over waters, beyond the territorial sea recognized at the time of the Treaty of Paris, that Spain supposedly ceded to the United States. Petitioners argue that from the Treaty of Paris technical description, Philippine sovereignty over territorial waters extends hundreds of nautical miles around the Philippine archipelago, embracing the rectangular area delineated in the Treaty of Paris.22
Petitioners theory fails to persuade us.
UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty regulating, among others, sea-use rights over maritime zones (i.e., the territorial waters [12 nautical miles from the baselines], contiguous zone [24 nautical miles from the baselines], exclusive economic zone [200 nautical miles from the baselines]), and continental shelves that UNCLOS III delimits.23 UNCLOS III was the culmination of decades-long negotiations among United Nations members to codify norms regulating the conduct of States in the worlds oceans and submarine areas, recognizing coastal and archipelagic States graduated authority over a limited span of waters and submarine lands along their coasts.
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to mark-out specific basepoints along their coasts from which baselines are drawn, either straight or contoured, to serve as geographic starting points to measure the breadth of the maritime zones and continental shelf. Article 48 of UNCLOS III on archipelagic States like ours could not be any clearer:
Article 48. Measurement of the breadth of the territorial sea, the contiguous
zone, the exclusive economic zone and the continental shelf. The breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf shall be measured from archipelagic baselines drawn in accordance with article 47. (Emphasis supplied)
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with precision the extent of their maritime zones and continental shelves. In turn, this gives notice to the rest of the international community of the scope of the maritime space and submarine areas within which States parties exercise treaty-based rights, namely, the exercise of sovereignty over territorial waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the contiguous zone (Article 33), and the right to exploit the living and non-living resources in the exclusive economic zone (Article 56) and continental shelf (Article 77).
Even under petitioners theory that the Philippine territory embraces the islands and all the waters within the rectangular area delimited in the Treaty of Paris, the baselines of the Philippines would still have to be drawn in accordance with RA 9522 because this is the only way to draw the baselines in conformity with UNCLOS III. The baselines cannot be drawn from the boundaries or other portions of the rectangular area delineated in the Treaty of Paris, but from the outermost islands and drying reefs of the archipelago.24
UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as petitioners claim, diminution of territory. Under traditional international law typology, States acquire (or conversely, lose) territory through occupation, accretion, cession and prescription,25 not by executing multilateral treaties on the regulations of sea-use rights or enacting statutes to comply with the treatys
terms to delimit maritime zones and continental shelves. Territorial claims to land features are outside UNCLOS III, and are instead governed by the rules on general international law.26
RA 9522s Use of the Framework
of Regime of Islands to Determine the
Maritime Zones of the KIG and the
Scarborough Shoal, not Inconsistent
with the Philippines Claim of Sovereignty
Over these Areas
Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands framework to draw the baselines, and to measure the breadth of the applicable maritime zones of the KIG, weakens our territorial claim over that area.27 Petitioners add that the KIGs (and Scarborough Shoals) exclusion from the Philippine archipelagic baselines results in the loss of about 15,000 square nautical miles of territorial waters, prejudicing the livelihood of subsistence fishermen.28 A comparison of the configuration of the baselines drawn under RA 3046 and RA 9522 and the extent of maritime space encompassed by each law, coupled with a reading of the text of RA 9522 and its congressional deliberations, vis--vis the Philippines obligations under UNCLOS III, belie this view.
The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely followed the basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522 skipped to optimize the location of basepoints and adjust the length of one baseline (and thus comply with UNCLOS IIIs limitation on the maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the Scarborough Shoal lie outside of the baselines drawn around the Philippine archipelago. This undeniable cartographic fact takes the wind out of petitioners argument branding RA 9522 as a statutory renunciation of the Philippines claim over the KIG, assuming that baselines are relevant for this purpose.
Petitioners assertion of loss of about 15,000 square nautical miles of territorial waters under RA 9522 is similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing the location of basepoints, increased the Philippines total maritime space (covering its internal waters, territorial sea and exclusive economic zone) by 145,216 square nautical miles, as shown in the table below:29
Extent of maritime area using
RA 3046, as amended, taking
into account the Treaty of
Paris delimitation (in square
nautical miles)
Extent of maritime
area using RA 9522,
taking into account
UNCLOS III (in
square nautical miles)
Internal or
archipelagic
waters
166,858
171,435
Territorial
Sea
274,136
32,106
Exclusive
Economic
Zone
382,669
TOTAL 440,994 586,210
Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA 9522 even extends way beyond the waters covered by the rectangular demarcation under the Treaty of Paris. Of course, where there are overlapping exclusive economic zones of opposite or adjacent States, there will have to be a delineation of maritime boundaries in accordance with UNCLOS III.30
Further, petitioners argument that the KIG now lies outside Philippine territory because the baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits to text the Philippines continued claim of sovereignty and jurisdiction over the KIG and the Scarborough Shoal:
SEC. 2. The baselines in the following areas over which the Philippines
likewise exercises sovereignty and jurisdiction shall be determined as Regime of Islands under the Republic of the Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine archipelago, adverse legal effects would have ensued. The Philippines would have committed a breach of two provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires that [t]he drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago. Second, Article 47 (2) of UNCLOS III requires that the length of the baselines shall not exceed 100 nautical miles, save for three per cent (3%) of the total number of baselines which can reach up to 125 nautical miles.31
Although the Philippines has consistently claimed sovereignty over the KIG32 and the Scarborough Shoal for several decades, these outlying areas are located at an appreciable distance from the nearest shoreline of the Philippine archipelago,33 such that any straight baseline loped around them from the nearest basepoint will inevitably depart to an appreciable extent from the general configuration of the archipelago.
The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took pains to emphasize the foregoing during the Senate deliberations:
What we call the Kalayaan Island Group or what the rest of the world call[] the
Spratlys and the Scarborough Shoal are outside our archipelagic baseline because if we put them inside our baselines we might be accused of violating the provision of international law which states: The drawing of such baseline shall not depart to any appreciable extent from the general configuration of the archipelago. So sa loob ng ating baseline, dapat magkalapit ang mga islands. Dahil malayo ang Scarborough Shoal, hindi natin masasabing malapit sila sa atin although we are still allowed by international law to claim them as our own.
This is called contested islands outside our configuration. We see that our archipelago is defined by the orange line which [we] call[] archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa itaas, that is Scarborough Shoal, itong malaking circle sa ibaba, that is Kalayaan Group or the Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis pa natin ang dating archipelagic baselines para lamang masama itong dalawang circles, hindi na sila magkalapit at baka hindi na tatanggapin ng United
Nations because of the rule that it should follow the natural configuration of the archipelago.34 (Emphasis supplied)
Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS IIIs limits. The need to shorten this baseline, and in addition, to optimize the location of basepoints using current maps, became imperative as discussed by respondents:
[T]he amendment of the baselines law was necessary to enable the Philippines to
draw the outer limits of its maritime zones including the extended continental shelf in the manner provided by Article 47 of [UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446, the baselines suffer from some technical deficiencies, to wit:
1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil Point) is 140.06 nautical miles x x x. This exceeds the maximum length allowed under Article 47(2) of the [UNCLOS III], which states that The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles.
2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped or deleted from the baselines system. This will enclose an additional 2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968, and not established by geodetic survey methods. Accordingly, some of the points, particularly along the west coasts of Luzon down to Palawan were later found to be located either inland or on water, not on low-water line and drying reefs as prescribed by Article 47.35
Hence, far from surrendering the Philippines claim over the KIG and the Scarborough Shoal, Congress decision to classify the KIG and the Scarborough Shoal as Regime[s] of Islands under the Republic of the Philippines consistent with Article 12136 of UNCLOS III manifests the Philippine States responsible observance of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any naturally formed area of land, surrounded by water, which is above water at high tide, such as portions of the KIG, qualifies under the category of regime of islands, whose islands generate their own applicable maritime zones.37
Statutory Claim Over Sabah under
RA 5446 Retained
Petitioners argument for the invalidity of RA 9522 for its failure to textualize the Philippines claim over Sabah in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps open the door for drawing the baselines of Sabah:
Section 2. The definition of the baselines of the territorial sea of the Philippine
Archipelago as provided in this Act is without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty. (Emphasis supplied)
UNCLOS III and RA 9522 not
Incompatible with the Constitutions
Delineation of Internal Waters
As their final argument against the validity of RA 9522, petitioners contend that the law unconstitutionally converts internal waters into archipelagic waters, hence subjecting these waters to the right of innocent and sea lanes passage under UNCLOS III, including overflight. Petitioners extrapolate that these passage rights indubitably expose Philippine internal waters to nuclear and maritime pollution hazards, in violation of the Constitution.38
Whether referred to as Philippine internal waters under Article I of the Constitution39 or as archipelagic waters under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over the body of water
lying landward of the baselines, including the air space over it and the submarine areas underneath. UNCLOS III affirms this:
Article 49. Legal status of archipelagic waters, of the air space over archipelagic
waters and of their bed and subsoil.
1. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselines drawn in accordance with article 47, described as archipelagic waters, regardless of their depth or distance from the coast.
2. This sovereignty extends to the air space over the archipelagic waters, as well as to their bed and subsoil, and the resources contained therein.
x x x x
4. The regime of archipelagic sea lanes passage established in this Part shall not
in other respects affect the status of the archipelagic waters, including the sea lanes, or the exercise by the archipelagic State of its sovereignty over such waters and their air space, bed and subsoil, and the resources contained therein. (Emphasis supplied)
The fact of sovereignty, however, does not preclude the operation of municipal and international law norms subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in the interest of maintaining unimpeded, expeditious international navigation, consistent with the international law principle of freedom of navigation. Thus, domestically, the political branches of the Philippine government, in the competent discharge of their constitutional powers, may pass legislation designating routes within the archipelagic waters to regulate innocent and sea lanes passage.40 Indeed, bills drawing nautical highways for sea lanes passage are now pending in Congress.41
In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate to grant innocent passage rights over the territorial sea or archipelagic waters, subject to the treatys limitations and conditions for their exercise.42 Significantly, the right of innocent passage is a customary international law,43 thus automatically incorporated in the corpus of Philippine law.44 No modern State can validly invoke its sovereignty to absolutely forbid innocent passage that is exercised in accordance with customary international law without risking retaliatory measures from the international community.
The fact that for archipelagic States, their archipelagic waters are subject to both the right of innocent passage and sea lanes passage45 does not place them in lesser footing vis--vis continental coastal States which are subject, in their territorial sea, to the right of innocent passage and the right of transit
passage through international straits. The imposition of these passage rights through archipelagic waters under UNCLOS III was a concession by archipelagic States, in exchange for their right to claim all the waters landward of their baselines, regardless of their depth or distance from the coast, as archipelagic waters subject to their territorial sovereignty. More importantly, the recognition of archipelagic States archipelago and the waters enclosed by their baselines as one cohesive entity prevents the treatment of their islands as separate islands under UNCLOS III.46 Separate islands generate their own maritime zones, placing the waters between islands separated by more than 24 nautical miles beyond the States territorial sovereignty, subjecting these waters to the rights of other States under UNCLOS III.47
Petitioners invocation of non-executory constitutional provisions in Article II (Declaration of Principles and State Policies)48 must also fail. Our present state of jurisprudence considers the provisions in Article II as mere legislative guides, which, absent enabling legislation, do not embody judicially enforceable constitutional rights x x x.49 Article II provisions serve as guides in formulating and interpreting implementing legislation, as well as in interpreting executory provisions of the Constitution. Although Oposa v. Factoran50 treated the right to a healthful and balanced ecology under Section 16 of Article II as an exception, the present petition lacks factual basis to substantiate the claimed constitutional violation. The other provisions petitioners cite, relating to the protection of marine wealth (Article XII, Section 2, paragraph 251) and subsistence fishermen (Article XIII, Section 752), are not violated by RA 9522.
In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic zone, reserving solely to the Philippines the exploitation of all living and non-living resources within such zone. Such a maritime delineation binds the international community since the delineation is in strict observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the international community will of course reject it and will refuse to be bound by it.
UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui generis maritime space the exclusive economic zone in waters previously part of the high seas. UNCLOS III grants new rights to coastal States to exclusively exploit the resources found within this zone up to 200 nautical miles.53UNCLOS III, however, preserves the traditional freedom of navigation of other States that attached to this zone beyond the territorial sea before UNCLOS III.
RA 9522 and the Philippines Maritime Zones
Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was not bound to pass RA 9522.54 We have looked at the relevant provision of UNCLOS III55 and we find petitioners reading plausible. Nevertheless, the prerogative of choosing this option belongs to Congress, not to this Court. Moreover, the luxury of choosing this option comes at a very steep price. Absent an UNCLOS III compliant baselines law, an archipelagic State like the Philippines will find itself devoid of internationally acceptable baselines from where the breadth of its maritime zones and continental shelf is measured. This is recipe for a two-fronted disaster: first, it sends an open invitation to the seafaring powers to freely enter and exploit the resources in the waters and submarine areas around our archipelago; and second, it weakens the countrys case in any international dispute over Philippine maritime space. These are consequences Congress wisely avoided.
The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent areas, as embodied in RA 9522, allows an internationally-recognized delimitation of the breadth of the Philippines maritime zones and continental shelf. RA 9522 is therefore a most vital step on the part of the Philippines in safeguarding its maritime zones, consistent with the Constitution and our national interest.
WHEREFORE, we DISMISS the petition.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
(Pls. see concurring opinion)
PRESBITERO J. VELASCO, JR.
Associate Justice
TERESITA J. LEONARDO-
DE CASTRO
Associate Justice
ARTURO D. BRION
Associate Justice
DIOSDADO M. PERALTA
Associate Justice
LUCAS P. BERSAMIN
MARIANO C. DEL CASTILLO
Associate Justice
Associate Justice
I certify that Mr. Justice Abad
left his concurring vote.
ROBERTO A. ABAD
Associate Justice
MARTIN S. VILLARAMA, JR.
Associate Justice
(on leave)
JOSE PORTUGAL PEREZ
Associate Justice
JOSE C. MENDOZA
Associate Justice
MARIA LOURDES P. A. SERENO
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.
RENATO C. CORONA
Chief Justice
1Entitled An Act to Amend Certain Provisions of Republic Act No. 3046, as Amended by Republic Act No. 5446, to Define the Archipelagic Baselines of the Philippines, and for Other Purposes.
2 Entitled An Act to Define the Baselines of the Territorial Sea of the Philippines.
3 The third Whereas Clause of RA 3046 expresses the import of treating the Philippines as an archipelagic State:
WHEREAS, all the waters around, between, and connecting the various islands of the Philippine archipelago, irrespective of their width or dimensions, have always been considered as necessary appurtenances of the land territory, forming part of the inland waters of the Philippines.
4 One of the four conventions framed during the first United Nations Convention on the Law of the Sea in Geneva, this treaty, excluding the Philippines, entered into force on 10 September 1964.
5 UNCLOS III entered into force on 16 November 1994.
6 The Philippines signed the treaty on 10 December 1982.
7 Article 47, paragraphs 1-3, provide:
1. An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.
2. The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles.
3. The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago. (Emphasis supplied)
x x x x
8UNCLOS III entered into force on 16 November 1994. The deadline for the filing of application is mandated in Article 4, Annex II: Where a coastal State intends to establish, in accordance with article 76, the outer limits of its continental shelf beyond 200 nautical miles, it shall submit particulars of such limits to the Commission along with supporting scientific and technical data as soon as possible but in any case within 10 years of the entry into force of this Convention for that State. The coastal State shall at the same time give the names of any Commission members who have provided it with scientific and technical advice. (Underscoring supplied)
In a subsequent meeting, the States parties agreed that for States which became bound by the treaty before 13 May 1999 (such as the Philippines) the ten-year period will be counted from that date. Thus, RA 9522, which took effect on 27 March 2009, barely met the deadline.
9 Rollo, p. 34.
10Which provides: The national territory comprises the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.
11Entered into between the Unites States and Spain on 10 December 1898 following the conclusion of the Spanish-American War. Under the terms of the treaty, Spain ceded to the United States the archipelago known as the Philippine Islands lying within its technical description.
12 The Treaty of Washington, between Spain and the United States (7 November 1900), transferring to the US the islands of Cagayan, Sulu, and Sibutu and the US-Great Britain Convention (2 January 1930) demarcating boundary lines between the Philippines and North Borneo.
13 Article II, Section 7, Section 8, and Section 16.
14 Allegedly in violation of Article XII, Section 2, paragraph 2 and Article XIII, Section 7 of the Constitution.
15 Kilosbayan, Inc. v. Morato, 320 Phil. 171, 186 (1995).
16 Pascual v. Secretary of Public Works, 110 Phil. 331 (1960); Sanidad v. COMELEC, 165 Phil. 303 (1976).
17Francisco, Jr. v. House of Representatives, 460 Phil. 830, 899 (2003) citing Kilosbayan, Inc. v. Guingona, Jr., G.R. No. 113375, 5 May 1994, 232 SCRA 110, 155-156 (1995) (Feliciano, J., concurring). The two other factors are: the character of funds or assets involved in the controversy and a clear disregard of constitutional or statutory prohibition. Id.
18. Rollo, pp. 144-147.
19See e.g. Aquino III v. COMELEC, G.R. No. 189793, 7 April 2010, 617 SCRA 623 (dismissing a petition for certiorari and prohibition assailing the constitutionality of Republic Act No. 9716, not for the impropriety of remedy but for lack of merit); Aldaba v. COMELEC, G.R. No. 188078, 25
January 2010, 611 SCRA 137 (issuing the writ of prohibition to declare unconstitutional Republic Act No. 9591); Macalintal v. COMELEC, 453 Phil. 586 (2003) (issuing the writs of certiorari and prohibition declaring unconstitutional portions of Republic Act No. 9189).
20See e.g. Neri v. Senate Committee on Accountability of Public Officers and Investigations, G.R. No. 180643, 25 March 2008, 549 SCRA 77 (granting a writ of certiorari against the Philippine Senate and nullifying the Senate contempt order issued against petitioner).
21 Rollo, p. 31.
22Respondents state in their Comment that petitioners theory has not been accepted or recognized by either the United States or Spain, the parties to the Treaty of Paris. Respondents add that no State is known to have supported this proposition. Rollo, p. 179.
23UNCLOS III belongs to that larger corpus of international law of the sea, which petitioner Magallona himself defined as a body of treaty rules and customary norms governing the uses of the sea, the exploitation of its resources, and the exercise of jurisdiction over maritime regimes. x x x x (Merlin M. Magallona, Primer on the Law of the Sea 1 [1997]) (Italicization supplied).
24 Following Article 47 (1) of UNCLOS III which provides:An archipelagic State may draw straight archipelagic baselines joining
the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. (Emphasis supplied)
25 Under the United Nations Charter, use of force is no longer a valid means of acquiring territory.
26 The last paragraph of the preamble of UNCLOS III states that matters not regulated by this Convention continue to be governed by the rules and principles of general international law.
27 Rollo, p. 51.
28 Id. at 51-52, 64-66.
29 Based on figures respondents submitted in their Comment (id. at 182).
30 Under Article 74.
31 See note 7.
32 Presidential Decree No. 1596 classifies the KIG as a municipality of Palawan.
33 KIG lies around 80 nautical miles west of Palawan while Scarborough Shoal is around 123 nautical west of Zambales.
34 Journal, Senate 14th Congress 44th Session 1416 (27 January 2009).
35 Rollo, p. 159.
36 Section 2, RA 9522.
37 Article 121 provides: Regime of islands.
1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide.
2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory.
3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.
38 Rollo, pp. 56-57, 60-64.
39Paragraph 2, Section 2, Article XII of the Constitution uses the term archipelagic waters separately from territorial sea. Under UNCLOS III, an archipelagic State may have internal waters such as those enclosed by closing lines across bays and mouths of rivers. See Article 50, UNCLOS III. Moreover, Article 8 (2) of UNCLOS III provides: Where the establishment of a straight baseline in accordance with the method set forth in article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those waters. (Emphasis supplied)
40 Mandated under Articles 52 and 53 of UNCLOS III:
Article 52. Right of innocent passage.1. Subject to article 53 and without prejudice to article 50, ships of all States enjoy the right of innocent passage through archipelagic waters, in accordance with Part II, section 3.
2. The archipelagic State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its archipelagic waters the innocent passage of foreign ships if such suspension is essential for the protection of its security. Such suspension shall take effect only after having been duly published. (Emphasis supplied)
Article 53. Right of archipelagic sea lanes passage.
1. An archipelagic State may designate sea lanes and air routes thereabove, suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea.
2. All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes.
3. Archipelagic sea lanes passage means the exercise in accordance with this Convention of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.
4. Such sea lanes and air routes shall traverse the archipelagic waters and the adjacent territorial sea and shall include all normal passage routes used as routes for international navigation or overflight through or over archipelagic waters and, within such routes, so far as ships are concerned, all normal navigational channels, provided that duplication of routes of similar convenience between the same entry and exit points shall not be necessary.
5. Such sea lanes and air routes shall be defined by a series of continuous axis lines from the entry points of passage routes to the exit points. Ships and aircraft in archipelagic sea lanes passage shall not deviate more than 25 nautical miles to either side of such axis lines during passage, provided that such ships and aircraft shall not navigate closer to the coasts than 10 per cent of the distance between the nearest points on islands bordering the sea lane.
6. An archipelagic State which designates sea lanes under this article may also prescribe traffic separation schemes for the safe passage of ships through narrow channels in such sea lanes.
7. An archipelagic State may, when circumstances require, after giving due publicity thereto, substitute other sea lanes or traffic separation schemes for any sea lanes or traffic separation schemes previously designated or prescribed by it.
8. Such sea lanes and traffic separation schemes shall conform to generally accepted international regulations.
9. In designating or substituting sea lanes or prescribing or substituting traffic separation schemes, an archipelagic State shall refer proposals to the competent international organization with a view to their adoption. The organization may adopt only such sea lanes and traffic separation schemes as may be agreed with the archipelagic State, after which the archipelagic State may designate, prescribe or substitute them.
10. The archipelagic State shall clearly indicate the axis of the sea lanes and the traffic separation schemes designated or prescribed by it on charts to which due publicity shall be given.
11. Ships in archipelagic sea lanes passage shall respect applicable sea lanes and traffic separation schemes established in accordance with this article.
12. If an archipelagic State does not designate sea lanes or air routes, the right of archipelagic sea lanes passage may be exercised through the routes normally used for international navigation. (Emphasis supplied)
41Namely, House Bill No. 4153 and Senate Bill No. 2738, identically titled AN ACT TO ESTABLISH THE ARCHIPELAGIC SEA LANES IN THE PHILIPPINE ARCHIPELAGIC WATERS, PRESCRIBING THE RIGHTS AND OBLIGATIONS OF FOREIGN SHIPS AND AIRCRAFTS EXERCISING THE RIGHT OF ARCHIPELAGIC SEA LANES PASSAGE THROUGH THE ESTABLISHED ARCHIPELAGIC SEA LANES AND PROVIDING FOR THE ASSOCIATED PROTECTIVE MEASURES THEREIN.
42 The relevant provision of UNCLOS III provides:
Article 17. Right of innocent passage.
Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea. (Emphasis supplied)
Article 19. Meaning of innocent passage.1. Passage is innocent so long as it is not prejudicial to the peace, good
order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law.
2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:
(a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;(b) any exercise or practice with weapons of any kind;
(c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State;
(d) any act of propaganda aimed at affecting the defence or security of the coastal State;
(e) the launching, landing or taking on board of any aircraft;(f) the launching, landing or taking on board of any military device;
(g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;
(h) any act of willful and serious pollution contrary to this Convention;(i) any fishing activities;
(j) the carrying out of research or survey activities;(k) any act aimed at interfering with any systems of communication or
any other facilities or installations of the coastal State;(l) any other activity not having a direct bearing on passage
Article 21. Laws and regulations of the coastal State relating to innocent passage.
1. The coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, relating to innocent passage through the territorial sea, in respect of all or any of the following:
(a) the safety of navigation and the regulation of maritime traffic;(b) the protection of navigational aids and facilities and other facilities or
installations;
(c) the protection of cables and pipelines;(d) the conservation of the living resources of the sea;
(e) the prevention of infringement of the fisheries laws and regulations of the coastal State;
(f) the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof;
(g) marine scientific research and hydrographic surveys;(h) the prevention of infringement of the customs, fiscal, immigration or
sanitary laws and regulations of the coastal State.2. Such laws and regulations shall not apply to the design, construction,
manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards.
3. The coastal State shall give due publicity to all such laws and regulations.
4. Foreign ships exercising the right of innocent passage through the territorial sea shall comply with all such laws and regulations and all generally accepted international regulations relating to the prevention of collisions at sea.
43The right of innocent passage through the territorial sea applies only to ships and not to aircrafts (Article 17, UNCLOS III). The right of innocent passage of aircrafts through the sovereign territory of a State arises only under an international agreement. In contrast, the right of innocent passage through archipelagic waters applies to both ships and aircrafts (Article 53 (12), UNCLOS III).
44Following Section 2, Article II of the Constitution: Section 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. (Emphasis supplied)
45Archipelagic sea lanes passage is essentially the same as transit passage through straits to which the territorial sea of continental coastal State is subject. R.R. Churabill and A.V. Lowe, The Law of the Sea 127 (1999).
46 Falling under Article 121 of UNCLOS III (see note 37).
47 Within the exclusive economic zone, other States enjoy the following rights under UNCLOS III:
Article 58. Rights and duties of other States in the exclusive economic zone.1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention.
2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with this Part.
x x x x
Beyond the exclusive economic zone, other States enjoy the freedom of the high seas, defined under UNCLOS III as follows:
Article 87. Freedom of the high seas.
1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States:
(a) freedom of navigation;(b) freedom of overflight;
(c) freedom to lay submarine cables and pipelines, subject to Part VI;(d) freedom to construct artificial islands and other installations
permitted under international law, subject to Part VI;(e) freedom of fishing, subject to the conditions laid down in section 2;
(f) freedom of scientific research, subject to Parts VI and XIII.2. These freedoms shall be exercised by all States with due regard for the
interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area.
48 See note 13.
49 Kilosbayan, Inc. v. Morato, 316 Phil. 652, 698 (1995); Taada v. Angara, 338 Phil. 546, 580-581 (1997).
50 G.R. No. 101083, 30 July 1993, 224 SCRA 792.
51 The State shall protect the nations marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.
52The State shall protect the rights of subsistence fishermen, especially of local communities, to the preferential use of the communal marine and fishing resources, both inland and offshore. It shall provide support to such fishermen through appropriate technology and research, adequate financial, production, and marketing assistance, and other services. The State shall also protect, develop, and conserve such resources. The protection shall extend to offshore fishing grounds of subsistence fishermen against foreign intrusion. Fishworkers shall receive a just share from their labor in the utilization of marine and fishing resources.
53This can extend up to 350 nautical miles if the coastal State proves its right to claim an extended continental shelf (see UNCLOS III, Article 76, paragraphs 4(a), 5 and 6, in relation to Article 77).
54 Rollo, pp. 67-69.
55Article 47 (1) provides: An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. (Emphasis supplied)
GALLONA v. ERMITA, G.R. 187167, August 16, 2011
Facts:
In 1961, Congress passed R.A. 3046 demarcating the maritime baselines of the Philippines as an Archepelagic State pursuant to UNCLOS I of 9158, codifying the sovereignty of State parties over their territorial sea. Then in 1968, it was amended by R.A. 5446, correcting some errors in R.A. 3046 reserving the drawing of baselines around Sabah.
In 2009, it was again amended by R.A. 9522, to be compliant with the UNCLOS III of 1984. The requirements complied with are: to shorten one baseline, to optimize the location of some basepoints and classify KIG and Scarborough Shoal as ‘regime of islands’.
Petitioner now assails the constitutionality of the law for three main reasons:
1. it reduces the Philippine maritime territory under Article 1;
2. it opens the country’s waters to innocent and sea lanes passages hence undermining our sovereignty and security; and
3. treating KIG and Scarborough as ‘regime of islands’ would weaken our claim over those territories.
Issue: Whether R.A. 9522 is constitutional?
Ruling:
1. UNCLOS III has nothing to do with acquisition or loss of territory. it is just a codified norm that regulates conduct of States. On the other hand, RA 9522 is a baseline law to mark out basepoints along coasts, serving as geographic starting points to measure. it merely notices the international community of the scope of our maritime space.
2. If passages is the issue, domestically, the legislature can enact legislation designating routes within the archipelagic waters to regulate innocent and sea lanes passages. but in the absence of such, international law norms operate.
the fact that for archipelagic states, their waters are subject to both passages does not place them in lesser footing vis a vis continental coastal states. Moreover, RIOP is a customary international law, no modern state can invoke its sovereignty to forbid such passage.
3. On the KIG issue, RA 9522 merely followed the basepoints mapped by RA 3046 and in fact, it increased the Phils.’ total maritime space. Moreover, the itself commits the Phils.’ continues claim of sovereignty and jurisdiction over KIG.
If not, it would be a breach to 2 provisions of the UNCLOS III:
Art. 47 (3): ‘drawing of basepoints shall not depart to any appreciable extent from the general configuration of the archipelago’.
Art 47 (2): the length of baselines shall not exceed 100 mm.
KIG and SS are far from our baselines, if we draw to include them, we’ll breach the rules: that it should follow the natural configuration of the archipelago.
Magallona vs. Hon. Ermita, et al. (Political Law)Magallona vs. Hon. Ermita, et al. G.R. 187167, August 16, 2011
Baseline laws, such as R.A. 9522, are nothing butstatutory mechanisms for UNCLOS III-States-parties to delimit with precision the extent of their maritime zones and continental shelves. It gives notice to the rest of the international community of the scope of the maritime space and submarine areas within which States-parties exercise treaty bases rights (right of sovereignty; right to enforce customs, fiscal, immigration and sanitation laws; right to exploit resources).
UNCLOS III and its ancillary baseline laws play no role in the acquisition or diminution of territory, because under traditional international law typology, states acquire or lose territory through occupation, accretion, cession, and prescription, not by executing multilateral treaties on the standard of sea-use rights or enacting statutes to comply with treaty terms to delimit maritime zones and continental shelves.'
Kalayaan Island Group and the Scarborough Shoal lie outside the baselines drawn around the Philippine archipelago. However, the Philippines’ continued claim of sovereignty and jurisdiction over such islands was committed to text through RA 9522’s use of the framework of Regime of Islands, under which islands located at an ‘appreciable distance from the nearest shoreline of the Philippine archipelago’ generate their own applicable maritime zones. Such classification of the KIG and Scarborough Shoal made by the Congress manifests the Philippines’ compliance with its pacta sunt servanda obligation under the UNCLOS III.
The fact of sovereignty does not preclude the operation of municipal and international law norms subjecting the territorial sea or archipelagic waters to necessary burdens in the interest of maintaining unimpeded, expeditious international navigation, consistent with the international law principle of freedom of navigation. The imposition of these passage rights through archipelagic waters under UNCLOS III was aconcession by archipelagic States, in exchange for their right to claim all the waters landward of their baselines, regardless of their depth or distance from the coast, as archipelagic waters subject to their territorial sovereignty.
UNCLOS III creates a sui generis maritime space – the exclusive economic zone – in waters previously part of the high seas.
EN BANC
G.R. No. 206510 September 16, 2014
MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV. DEOGRACIAS S. INIGUEZ, JR., Bishop-Emeritus of Caloocan, FRANCES Q. QUIMPO, CLEMENTE G. BAUTISTA, JR., Kalikasan-PNE, MARIA CAROLINA P. ARAULLO, RENATO M. REYES, JR., Bagong Alyansang Makabayan, HON. NERI JAVIER COLMENARES, Bayan Muna Partylist, ROLAND G. SIMBULAN, PH.D., Junk VF A Movement, TERESITA R. PEREZ, PH.D., HON. RAYMOND V. PALATINO, Kabataan Party-list, PETER SJ. GONZALES, Pamalakaya, GIOVANNI A. TAPANG, PH. D., Agham, ELMER C. LABOG, Kilusang Mayo Uno, JOAN MAY E. SALVADOR, Gabriela, JOSE ENRIQUE A. AFRICA, THERESA A. CONCEPCION, MARY JOAN A. GUAN, NESTOR T. BAGUINON, PH.D., A. EDSEL F. TUPAZ, Petitioners, vs.SCOTT H. SWIFT in his capacity as Commander of the US. 7th Fleet, MARK A. RICE in his capacity as Commanding Officer of the USS Guardian, PRESIDENT BENIGNO S. AQUINO III in his capacity as Commander-in-Chief of the Armed Forces of the Philippines, HON. ALBERT F. DEL ROSARIO, Secretary, pepartment of Foreign Affair.s, HON. PAQUITO OCHOA, JR., Executiv~.:Secretary, Office of the President, . HON. VOLTAIRE T. GAZMIN, Secretary, Department of National Defense, HON. RAMON JESUS P. P AJE, Secretary, Department of Environment and Natural Resoz!rces, VICE ADMIRAL JOSE LUIS M. ALANO, Philippine Navy Flag Officer in Command, Armed Forces of the Philippines, ADMIRAL RODOLFO D. ISO RENA, Commandant, Philippine Coast Guard, COMMODORE ENRICO EFREN EVANGELISTA, Philippine Coast Guard Palawan, MAJOR GEN. VIRGILIO 0. DOMINGO, Commandant of Armed Forces of the Philippines Command and LT. GEN. TERRY G. ROBLING, US Marine Corps Forces. Pacific and Balikatan 2013 Exercise Co-Director, Respondents.
D E C I S I O N
VILLARAMA, JR, J.:
Before us is a petition for the issuance of a Writ of Kalikasan with prayer for the issuance of a Temporary Environmental Protection Order (TEPO) under Rule 7 of A.M. No. 09-6-8-SC, otherwise known as the Rules of Procedure for Environmental Cases (Rules), involving violations of environmental laws and regulations in relation to the grounding of the US military ship USS Guardian over the Tubbataha Reefs.
Factual Background
The name "Tubbataha" came from the Samal (seafaring people of southern Philippines) language which means "long reef exposed at low tide." Tubbataha is composed of two huge coral atolls - the north atoll and the south atoll - and the Jessie Beazley Reef, a smaller coral structure about 20 kilometers north of the atolls. The reefs of Tubbataha and Jessie Beazley are considered part of Cagayancillo, a remote island municipality of Palawan.1
In 1988, Tubbataha was declared a National Marine Park by virtue of Proclamation No. 306 issued by President Corazon C. Aquino on August 11, 1988. Located in the middle of Central Sulu Sea, 150 kilometers southeast of Puerto Princesa City, Tubbataha lies at the heart of the Coral Triangle, the global center of marine biodiversity.
In 1993, Tubbataha was inscribed by the United Nations Educational Scientific and Cultural Organization (UNESCO) as a World Heritage Site. It was recognized as one of the Philippines'
oldest ecosystems, containing excellent examples of pristine reefs and a high diversity of marine life. The 97,030-hectare protected marine park is also an important habitat for internationally threatened and endangered marine species. UNESCO cited Tubbataha's outstanding universal value as an important and significant natural habitat for in situ conservation of biological diversity; an example representing significant on-going ecological and biological processes; and an area of exceptional natural beauty and aesthetic importance.2
On April 6, 2010, Congress passed Republic Act (R.A.) No. 10067,3 otherwise known as the "Tubbataha Reefs Natural Park (TRNP) Act of 2009" "to ensure the protection and conservation of the globally significant economic, biological, sociocultural, educational and scientific values of the Tubbataha Reefs into perpetuity for the enjoyment of present and future generations." Under the "no-take" policy, entry into the waters of TRNP is strictly regulated and many human activities are prohibited and penalized or fined, including fishing, gathering, destroying and disturbing the resources within the TRNP. The law likewise created the Tubbataha Protected Area Management Board (TPAMB) which shall be the sole policy-making and permit-granting body of the TRNP.
The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In December 2012, the US Embassy in the Philippines requested diplomatic clearance for the said vessel "to enter and exit the territorial waters of the Philippines and to arrive at the port of Subic Bay for the purpose of routine ship replenishment, maintenance, and crew liberty."4 On January 6, 2013, the ship left Sasebo, Japan for Subic Bay, arriving on January 13, 2013 after a brief stop for fuel in Okinawa, Japan.1âwphi1
On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in Makassar, Indonesia. On January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea, the ship ran aground on the northwest side of South Shoal of the Tubbataha Reefs, about 80 miles east-southeast of Palawan. No cine was injured in the incident, and there have been no reports of leaking fuel or oil.
On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift, expressed regret for the incident in a press statement.5 Likewise, US Ambassador to the Philippines Harry K. Thomas, Jr., in a meeting at the Department of Foreign Affairs (DFA) on February 4, "reiterated his regrets over the grounding incident and assured Foreign Affairs Secretazy Albert F. del Rosario that the United States will provide appropriate compensation for damage to the reef caused by the ship."6 By March 30, 2013, the US Navy-led salvage team had finished removing the last piece of the grounded ship from the coral reef.
On April 1 7, 2013, the above-named petitioners on their behalf and in representation of their respective sector/organization and others, including minors or generations yet unborn, filed the present petition agairtst Scott H. Swift in his capacity as Commander of the US 7th Fleet, Mark A. Rice in his capacity as Commanding Officer of the USS Guardian and Lt. Gen. Terry G. Robling, US Marine Corps Forces, Pacific and Balikatan 2013 Exercises Co-Director ("US respondents"); President Benigno S. Aquino III in his capacity as Commander-in-Chief of the Armed Forces of the Philippines (AFP), DF A Secretary Albert F. Del Rosario, Executive Secretary Paquito Ochoa, Jr., Secretary Voltaire T. Gazmin (Department of National Defense), Secretary Jesus P. Paje (Department of Environment and Natural Resources), Vice-Admiral Jose Luis M. Alano (Philippine Navy Flag Officer in Command, AFP), Admiral Rodolfo D. Isorena (Philippine Coast Guard Commandant), Commodore Enrico Efren Evangelista
(Philippine Coast Guard-Palawan), and Major General Virgilio 0. Domingo (AFP Commandant), collectively the "Philippine respondents."
The Petition
Petitioners claim that the grounding, salvaging and post-salvaging operations of the USS Guardian cause and continue to cause environmental damage of such magnitude as to affect the provinces of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu, and Tawi-Tawi, which events violate their constitutional rights to a balanced and healthful ecology. They also seek a directive from this Court for the institution of civil, administrative and criminal suits for acts committed in violation of environmental laws and regulations in connection with the grounding incident.
Specifically, petitioners cite the following violations committed by US respondents under R.A. No. 10067: unauthorized entry (Section 19); non-payment of conservation fees (Section 21 ); obstruction of law enforcement officer (Section 30); damages to the reef (Section 20); and destroying and disturbing resources (Section 26[g]). Furthermore, petitioners assail certain provisions of the Visiting Forces Agreement (VFA) which they want this Court to nullify for being unconstitutional.
The numerous reliefs sought in this case are set forth in the final prayer of the petition, to wit: WHEREFORE, in view of the foregoing, Petitioners respectfully pray that the Honorable Court: 1. Immediately issue upon the filing of this petition a Temporary Environmental Protection Order (TEPO) and/or a Writ of Kalikasan, which shall, in particular,
a. Order Respondents and any person acting on their behalf, to cease and desist all operations over the Guardian grounding incident;
b. Initially demarcating the metes and bounds of the damaged area as well as an additional buffer zone;
c. Order Respondents to stop all port calls and war games under 'Balikatan' because of the absence of clear guidelines, duties, and liability schemes for breaches of those duties, and require Respondents to assume responsibility for prior and future environmental damage in general, and environmental damage under the Visiting Forces Agreement in particular.
d. Temporarily define and describe allowable activities of ecotourism, diving, recreation, and limited commercial activities by fisherfolk and indigenous communities near or around the TRNP but away from the damaged site and an additional buffer zone;
2. After summary hearing, issue a Resolution extending the TEPO until further orders of the Court;
3. After due proceedings, render a Decision which shall include, without limitation:
a. Order Respondents Secretary of Foreign Affairs, following the dispositive portion of Nicolas v. Romulo, "to forthwith negotiate with the United States representatives for the appropriate agreement on [environmental guidelines and environmental accountability] under Philippine authorities as provided in Art. V[] of the VFA ... "
b. Direct Respondents and appropriate agencies to commence administrative, civil, and criminal proceedings against erring officers and individuals to the full extent of the law, and to make such proceedings public;
c. Declare that Philippine authorities may exercise primary and exclusive criminal jurisdiction over erring U.S. personnel under the circumstances of this case;
d. Require Respondents to pay just and reasonable compensation in the settlement of all meritorious claims for damages caused to the Tubbataha Reef on terms and conditions no less severe than those applicable to other States, and damages for personal injury or death, if such had been the case;
e. Direct Respondents to cooperate in providing for the attendance of witnesses and in the collection and production of evidence, including seizure and delivery of objects connected with the offenses related to the grounding of the Guardian;
f. Require the authorities of the Philippines and the United States to notify each other of the disposition of all cases, wherever heard, related to the grounding of the Guardian;
g. Restrain Respondents from proceeding with any purported restoration, repair, salvage or post salvage plan or plans, including cleanup plans covering the damaged area of the Tubbataha Reef absent a just settlement approved by the Honorable Court;
h. Require Respondents to engage in stakeholder and LOU consultations in accordance with the Local Government Code and R.A. 10067;
i. Require Respondent US officials and their representatives to place a deposit to the TRNP Trust Fund defined under Section 17 of RA 10067 as a bona .fide gesture towards full reparations;
j. Direct Respondents to undertake measures to rehabilitate the areas affected by the grounding of the Guardian in light of Respondents' experience in the Port Royale grounding in 2009, among other similar grounding incidents;
k. Require Respondents to regularly publish on a quarterly basis and in the name of transparency and accountability such environmental damage assessment, valuation, and valuation methods, in all stages of negotiation;
l. Convene a multisectoral technical working group to provide scientific and technical support to the TPAMB;
m. Order the Department of Foreign Affairs, Department of National Defense, and the Department of Environment and Natural Resources to review the Visiting Forces Agreement and the Mutual Defense Treaty to consider whether their provisions allow for the exercise of erga omnes rights to a balanced and healthful ecology and for damages which follow from any violation of those rights;
n. Narrowly tailor the provisions of the Visiting Forces Agreement for purposes of protecting the damaged areas of TRNP;
o. Declare the grant of immunity found in Article V ("Criminal Jurisdiction") and Article VI of the Visiting Forces Agreement unconstitutional for violating equal protection and/or for violating the preemptory norm of nondiscrimination incorporated as part of the law of the land under Section 2, Article II, of the Philippine Constitution;
p. Allow for continuing discovery measures;
q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs in all other respects; and
4. Provide just and equitable environmental rehabilitation measures and such other reliefs as are just and equitable under the premises.7 (Underscoring supplied.)
Since only the Philippine respondents filed their comment8 to the petition, petitioners also filed a motion for early resolution and motion to proceed ex parte against the US respondents.9
Respondents' Consolidated Comment
In their consolidated comment with opposition to the application for a TEPO and ocular inspection and production orders, respondents assert that: ( 1) the grounds relied upon for the issuance of a TEPO or writ of Kalikasan have become fait accompli as the salvage operations on the USS Guardian were already completed; (2) the petition is defective in form and substance; (3) the petition improperly raises issues involving the VFA between the Republic of the Philippines and the United States of America; and ( 4) the determination of the extent of responsibility of the US Government as regards the damage to the Tubbataha Reefs rests exdusively with the executive branch.
The Court's Ruling
As a preliminary matter, there is no dispute on the legal standing of petitioners to file the present petition.
Locus standi is "a right of appearance in a court of justice on a given question."10 Specifically, it is "a party's personal and substantial interest in a case where he has sustained or will sustain direct injury as a result" of the act being challenged, and "calls for more than just a generalized grievance."11 However, the rule on standing is a procedural matter which this Court has relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers and legislators when the public interest so requires, such as when the subject matter of the controversy is of transcendental importance, of overreaching significance to society, or of paramount public interest.12
In the landmark case of Oposa v. Factoran, Jr.,13 we recognized the "public right" of citizens to "a balanced and healthful ecology which, for the first time in our constitutional history, is solemnly incorporated in the fundamental law." We declared that the right to a balanced and healthful ecology need not be written in the Constitution for it is assumed, like other civil and polittcal rights guaranteed in the Bill of Rights, to exist from the inception of mankind and it is an issue of transcendental importance with intergenerational implications.1âwphi1 Such right carries with it the correlative duty to refrain from impairing the environment.14
On the novel element in the class suit filed by the petitioners minors in Oposa, this Court ruled that not only do ordinary citizens have legal standing to sue for the enforcement of
environmental rights, they can do so in representation of their own and future generations. Thus:
Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers the "rhythm and harmony of nature." Nature means the created world in its entirety. Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration, development and utilization be equitably accessible to the present a:: well as future generations. Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full 1:njoyment of a balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come.15 (Emphasis supplied.)
The liberalization of standing first enunciated in Oposa, insofar as it refers to minors and generations yet unborn, is now enshrined in the Rules which allows the filing of a citizen suit in environmental cases. The provision on citizen suits in the Rules "collapses the traditional rule on personal and direct interest, on the principle that humans are stewards of nature."16
Having settled the issue of locus standi, we shall address the more fundamental question of whether this Court has jurisdiction over the US respondents who did not submit any pleading or manifestation in this case.
The immunity of the State from suit, known also as the doctrine of sovereign immunity or non-suability of the State,17 is expressly provided in Article XVI of the 1987 Constitution which states:
Section 3. The State may not be sued without its consent.
In United States of America v. Judge Guinto,18 we discussed the principle of state immunity from suit, as follows:
The rule that a state may not be sued without its consent, now · expressed in Article XVI, Section 3, of the 1987 Constitution, is one of the generally accepted principles of international law that we have adopted as part of the law of our land under Article II, Section 2. x x x.
Even without such affirmation, we would still be bound by the generally accepted principles of international law under the doctrine of incorporation. Under this doctrine, as accepted by the majority of states, such principles are deemed incorporated in the law of every civilized state as a condition and consequence of its membership in the society of nations. Upon its admission to such society, the state is automatically obligated to comply with these principles in its relations with other states.
As applied to the local state, the doctrine of state immunity is based on the justification given by Justice Holmes that ''there can be no legal right against the authority which makes the law on which the right depends." [Kawanakoa v. Polybank, 205 U.S. 349] There are other practical
reasons for the enforcement of the doctrine. In the case of the foreign state sought to be impleaded in the local jurisdiction, the added inhibition is expressed in the maxim par in parem, non habet imperium. All states are sovereign equals and cannot assert jurisdiction over one another. A contrary disposition would, in the language of a celebrated case, "unduly vex the peace of nations." [De Haber v. Queen of Portugal, 17 Q. B. 171]
While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties. The rule is that if the judgment against such officials will require the state itself to perform an affirmative act to satisfy the same,. such as the appropriation of the amount needed to pay the damages awarded against them, the suit must be regarded as against the state itself although it has not been formally impleaded. [Garcia v. Chief of Staff, 16 SCRA 120] In such a situation, the state may move to dismiss the comp.taint on the ground that it has been filed without its consent.19 (Emphasis supplied.)
Under the American Constitution, the doctrine is expressed in the Eleventh Amendment which reads:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
In the case of Minucher v. Court of Appeals,20 we further expounded on the immunity of foreign states from the jurisdiction of local courts, as follows:
The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of customary international law then closely identified with the personal immunity of a foreign sovereign from suit and, with the emergence of democratic states, made to attach not just to the person of the head of state, or his representative, but also distinctly to the state itself in its sovereign capacity. If the acts giving rise to a suit arc those of a foreign government done by its foreign agent, although not necessarily a diplomatic personage, but acting in his official capacity, the complaint could be barred by the immunity of the foreign sovereign from suit without its consent. Suing a representative of a state is believed to be, in effect, suing the state itself. The proscription is not accorded for the benefit of an individual but for the State, in whose service he is, under the maxim -par in parem, non habet imperium -that all states are soverr~ign equals and cannot assert jurisdiction over one another. The implication, in broad terms, is that if the judgment against an official would rec 1uire the state itself to perform an affirmative act to satisfy the award, such as the appropriation of the amount needed to pay the damages decreed against him, the suit must be regarded as being against the state itself, although it has not been formally impleaded.21(Emphasis supplied.)
In the same case we also mentioned that in the case of diplomatic immunity, the privilege is not an immunity from the observance of the law of the territorial sovereign or from ensuing legal liability; it is, rather, an immunity from the exercise of territorial jurisdiction.22
In United States of America v. Judge Guinto,23 one of the consolidated cases therein involved a Filipino employed at Clark Air Base who was arrested following a buy-bust operation conducted by two officers of the US Air Force, and was eventually dismissed from his employment when he was charged in court for violation of R.A. No. 6425. In a complaint for damages filed by the said employee against the military officers, the latter moved to dismiss the case on the ground
that the suit was against the US Government which had not given its consent. The RTC denied the motion but on a petition for certiorari and prohibition filed before this Court, we reversed the RTC and dismissed the complaint. We held that petitioners US military officers were acting in the exercise of their official functions when they conducted the buy-bust operation against the complainant and thereafter testified against him at his trial. It follows that for discharging their duties as agents of the United States, they cannot be directly impleaded for acts imputable to their principal, which has not given its consent to be sued.
This traditional rule of State immunity which exempts a State from being sued in the courts of another State without the former's consent or waiver has evolved into a restrictive doctrine which distinguishes sovereign and governmental acts (Jure imperil") from private, commercial and proprietary acts (Jure gestionis). Under the restrictive rule of State immunity, State immunity extends only to acts Jure imperii. The restrictive application of State immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign, its commercial activities or economic affairs.24
In Shauf v. Court of Appeals,25 we discussed the limitations of the State immunity principle, thus:
It is a different matter where the public official is made to account in his capacity as such for acts contrary to law and injurious to the rights of plaintiff. As was clearly set forth by JustiGe Zaldivar in Director of the Bureau of Telecommunications, et al. vs. Aligaen, etc., et al. : "Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of government officials or officers are not acts of the State, and an action against the officials or officers by one whose rights have been invaded or violated by such acts, for the protection of his rights, is not a suit against the State within the rule of immunity of the State from suit. In the same tenor, it has been said that an action at law or suit in equity against a State officer or the director of a State department on the ground that, while claiming to act for the State, he violates or invades the personal and property rights of the plaintiff, under an unconstitutional act or under an assumption of authority which he does not have, is not a suit against the State within the constitutional provision that the State may not be sued without its consent." The rationale for this ruling is that the doctrine of state immunity cannot be used as an instrument for perpetrating an injustice.
x x x x
The aforecited authorities are clear on the matter. They state that the doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary citizen. The cloak of protection afforded the officers and agents of the government is removed the moment they are sued in their individual capacity. This situation usually arises where the public official acts without authority or in excess of the powers vested in him. It is a well-settled principle of law that a public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with malice and in bad faith, or beyond the scope of his authority or jurisdiction.26 (Emphasis supplied.) In this case, the US respondents were sued in their official capacity as commanding officers of the US Navy who had control and supervision over the USS Guardian and its crew. The alleged act or omission resulting in the unfortunate grounding of the USS Guardian on the TRNP was committed while they we:re performing official military duties. Considering that the satisfaction of a judgment against said officials will require remedial actions and appropriation of funds by the US government, the suit is deemed to be one against the US itself. The principle of State
immunity therefore bars the exercise of jurisdiction by this Court over the persons of respondents Swift, Rice and Robling.
During the deliberations, Senior Associate Justice Antonio T. Carpio took the position that the conduct of the US in this case, when its warship entered a restricted area in violation of R.A. No. 10067 and caused damage to the TRNP reef system, brings the matter within the ambit of Article 31 of the United Nations Convention on the Law of the Sea (UNCLOS). He explained that while historically, warships enjoy sovereign immunity from suit as extensions of their flag State, Art. 31 of the UNCLOS creates an exception to this rule in cases where they fail to comply with the rules and regulations of the coastal State regarding passage through the latter's internal waters and the territorial sea.
According to Justice Carpio, although the US to date has not ratified the UNCLOS, as a matter of long-standing policy the US considers itself bound by customary international rules on the "traditional uses of the oceans" as codified in UNCLOS, as can be gleaned from previous declarations by former Presidents Reagan and Clinton, and the US judiciary in the case of United States v. Royal Caribbean Cruise Lines, Ltd.27
The international law of the sea is generally defined as "a body of treaty rules arid customary norms governing the uses of the sea, the exploitation of its resources, and the exercise of jurisdiction over maritime regimes. It is a branch of public international law, regulating the relations of states with respect to the uses of the oceans."28 The UNCLOS is a multilateral treaty which was opened for signature on December 10, 1982 at Montego Bay, Jamaica. It was ratified by the Philippines in 1984 but came into force on November 16, 1994 upon the submission of the 60th ratification.
The UNCLOS is a product of international negotiation that seeks to balance State sovereignty (mare clausum) and the principle of freedom of the high seas (mare liberum).29 The freedom to use the world's marine waters is one of the oldest customary principles of international law.30 The UNCLOS gives to the coastal State sovereign rights in varying degrees over the different zones of the sea which are: 1) internal waters, 2) territorial sea, 3) contiguous zone, 4) exclusive economic zone, and 5) the high seas. It also gives coastal States more or less jurisdiction over foreign vessels depending on where the vessel is located.31
Insofar as the internal waters and territorial sea is concerned, the Coastal State exercises sovereignty, subject to the UNCLOS and other rules of international law. Such sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.32
In the case of warships,33 as pointed out by Justice Carpio, they continue to enjoy sovereign immunity subject to the following exceptions:
Article 30Non-compliance by warships with the laws and regulations of the coastal State
If any warship does not comply with the laws and regulations of the coastal State concerning passage through the territorial sea and disregards any request for compliance therewith which is made to it, the coastal State may require it to leave the territorial sea immediately.
Article 31Responsibility of the flag State for damage caused by a warship
or other government ship operated for non-commercial purposes
The flag State shall bear international responsibility for any loss or damage to the coastal State resulting from the non-compliance by a warship or other government ship operated for non-commercial purposes with the laws and regulations of the coastal State concerning passage through the territorial sea or with the provisions of this Convention or other rules of international law.
Article 32Immunities of warships and other government ships operated for non-commercial purposes
With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this Convention affects the immunities of warships and other government ships operated for non-commercial purposes. (Emphasis supplied.) A foreign warship's unauthorized entry into our internal waters with resulting damage to marine resources is one situation in which the above provisions may apply. But what if the offending warship is a non-party to the UNCLOS, as in this case, the US?
An overwhelming majority - over 80% -- of nation states are now members of UNCLOS, but despite this the US, the world's leading maritime power, has not ratified it.
While the Reagan administration was instrumental in UNCLOS' negotiation and drafting, the U.S. delegation ultimately voted against and refrained from signing it due to concerns over deep seabed mining technology transfer provisions contained in Part XI. In a remarkable, multilateral effort to induce U.S. membership, the bulk of UNCLOS member states cooperated over the succeeding decade to revise the objection.able provisions. The revisions satisfied the Clinton administration, which signed the revised Part XI implementing agreement in 1994. In the fall of 1994, President Clinton transmitted UNCLOS and the Part XI implementing agreement to the Senate requesting its advice and consent. Despite consistent support from President Clinton, each of his successors, and an ideologically diverse array of stakeholders, the Senate has since withheld the consent required for the President to internationally bind the United States to UNCLOS.
While UNCLOS cleared the Senate Foreign Relations Committee (SFRC) during the 108th and 110th Congresses, its progress continues to be hamstrung by significant pockets of political ambivalence over U.S. participation in international institutions. Most recently, 111 th Congress SFRC Chairman Senator John Kerry included "voting out" UNCLOS for full Senate consideration among his highest priorities. This did not occur, and no Senate action has been taken on UNCLOS by the 112th Congress.34
Justice Carpio invited our attention to the policy statement given by President Reagan on March 10, 1983 that the US will "recognize the rights of the other , states in the waters off their coasts, as reflected in the convention [UNCLOS], so long as the rights and freedom of the United States and others under international law are recognized by such coastal states", and President Clinton's reiteration of the US policy "to act in a manner consistent with its [UNCLOS] provisions relating to traditional uses of the oceans and to encourage other countries to do likewise." Since Article 31 relates to the "traditional uses of the oceans," and "if under its policy, the US 'recognize[s] the rights of the other states in the waters off their coasts,"' Justice Carpio postulates that "there is more reason to expect it to recognize the rights of other states in their internal waters, such as the Sulu Sea in this case."
As to the non-ratification by the US, Justice Carpio emphasizes that "the US' refusal to join the UN CLOS was centered on its disagreement with UN CLOS' regime of deep seabed mining (Part XI) which considers the oceans and deep seabed commonly owned by mankind," pointing out that such "has nothing to do with its [the US'] acceptance of customary international rules on navigation."
It may be mentioned that even the US Navy Judge Advocate General's Corps publicly endorses the ratification of the UNCLOS, as shown by the following statement posted on its official website:
The Convention is in the national interest of the United States because it establishes stable maritime zones, including a maximum outer limit for territorial seas; codifies innocent passage, transit passage, and archipelagic sea lanes passage rights; works against "jurisdictiomtl creep" by preventing coastal nations from expanding their own maritime zones; and reaffirms sovereign immunity of warships, auxiliaries anJ government aircraft.
x x x x
Economically, accession to the Convention would support our national interests by enhancing the ability of the US to assert its sovereign rights over the resources of one of the largest continental shelves in the world. Further, it is the Law of the Sea Convention that first established the concept of a maritime Exclusive Economic Zone out to 200 nautical miles, and recognized the rights of coastal states to conserve and manage the natural resources in this Zone.35
We fully concur with Justice Carpio's view that non-membership in the UNCLOS does not mean that the US will disregard the rights of the Philippines as a Coastal State over its internal waters and territorial sea. We thus expect the US to bear "international responsibility" under Art. 31 in connection with the USS Guardian grounding which adversely affected the Tubbataha reefs. Indeed, it is difficult to imagine that our long-time ally and trading partner, which has been actively supporting the country's efforts to preserve our vital marine resources, would shirk from its obligation to compensate the damage caused by its warship while transiting our internal waters. Much less can we comprehend a Government exercising leadership in international affairs, unwilling to comply with the UNCLOS directive for all nations to cooperate in the global task to protect and preserve the marine environment as provided in Article 197, viz:
Article 197Cooperation on a global or regional basis
States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features.
In fine, the relevance of UNCLOS provisions to the present controversy is beyond dispute. Although the said treaty upholds the immunity of warships from the jurisdiction of Coastal States while navigating the.latter's territorial sea, the flag States shall be required to leave the territorial '::;ea immediately if they flout the laws and regulations of the Coastal State, and they will be
liable for damages caused by their warships or any other government vessel operated for non-commercial purposes under Article 31.
Petitioners argue that there is a waiver of immunity from suit found in the VFA. Likewise, they invoke federal statutes in the US under which agencies of the US have statutorily waived their immunity to any action. Even under the common law tort claims, petitioners asseverate that the US respondents are liable for negligence, trespass and nuisance.
We are not persuaded.
The VFA is an agreement which defines the treatment of United States troops and personnel visiting the Philippines to promote "common security interests" between the US and the Philippines in the region. It provides for the guidelines to govern such visits of military personnel, and further defines the rights of the United States and the Philippine government in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of equipment, materials and supplies.36 The invocation of US federal tort laws and even common law is thus improper considering that it is the VF A which governs disputes involving US military ships and crew navigating Philippine waters in pursuance of the objectives of the agreement.
As it is, the waiver of State immunity under the VF A pertains only to criminal jurisdiction and not to special civil actions such as the present petition for issuance of a writ of Kalikasan. In fact, it can be inferred from Section 17, Rule 7 of the Rules that a criminal case against a person charged with a violation of an environmental law is to be filed separately:
SEC. 17. Institution of separate actions.-The filing of a petition for the issuance of the writ of kalikasan shall not preclude the filing of separate civil, criminal or administrative actions.
In any case, it is our considered view that a ruling on the application or non-application of criminal jurisdiction provisions of the VF A to US personnel who may be found responsible for the grounding of the USS Guardian, would be premature and beyond the province of a petition for a writ of Kalikasan. We also find it unnecessary at this point to determine whether such waiver of State immunity is indeed absolute. In the same vein, we cannot grant damages which have resulted from the violation of environmental laws. The Rules allows the recovery of damages, including the collection of administrative fines under R.A. No. 10067, in a separate civil suit or that deemed instituted with the criminal action charging the same violation of an environmental law.37
Section 15, Rule 7 enumerates the reliefs which may be granted in a petition for issuance of a writ of Kalikasan, to wit:
SEC. 15. Judgment.-Within sixty (60) days from the time the petition is submitted for decision, the court shall render judgment granting or denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist from committing acts or neglecting the performance of a duty in violation of environmental laws resulting in environmental destruction or damage;
(b) Directing the respondent public official, govemment agency, private person or entity to protect, preserve, rehabilitate or restore the environment;
(c) Directing the respondent public official, government agency, private person or entity to monitor strict compliance with the decision and orders of the court;
(d) Directing the respondent public official, government agency, or private person or entity to make periodic reports on the execution of the final judgment; and
(e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the protection, preservation, rehabilitation or restoration of the environment, except the award of damages to individual petitioners. (Emphasis supplied.)
We agree with respondents (Philippine officials) in asserting that this petition has become moot in the sense that the salvage operation sought to be enjoined or restrained had already been accomplished when petitioners sought recourse from this Court. But insofar as the directives to Philippine respondents to protect and rehabilitate the coral reef stn icture and marine habitat adversely affected by the grounding incident are concerned, petitioners are entitled to these reliefs notwithstanding the completion of the removal of the USS Guardian from the coral reef. However, we are mindful of the fact that the US and Philippine governments both expressed readiness to negotiate and discuss the matter of compensation for the damage caused by the USS Guardian. The US Embassy has also declared it is closely coordinating with local scientists and experts in assessing the extent of the damage and appropriate methods of rehabilitation.
Exploring avenues for settlement of environmental cases is not proscribed by the Rules. As can be gleaned from the following provisions, mediation and settlement are available for the consideration of the parties, and which dispute resolution methods are encouraged by the court, to wit:
RULE3
x x x x
SEC. 3. Referral to mediation.-At the start of the pre-trial conference, the court shall inquire from the parties if they have settled the dispute; otherwise, the court shall immediately refer the parties or their counsel, if authorized by their clients, to the Philippine Mediation Center (PMC) unit for purposes of mediation. If not available, the court shall refer the case to the clerk of court or legal researcher for mediation.
Mediation must be conducted within a non-extendible period of thirty (30) days from receipt of notice of referral to mediation.
The mediation report must be submitted within ten (10) days from the expiration of the 30-day period.
SEC. 4. Preliminary conference.-If mediation fails, the court will schedule the continuance of the pre-trial. Before the scheduled date of continuance, the court may refer the case to the branch clerk of court for a preliminary conference for the following purposes:
(a) To assist the parties in reaching a settlement;
x x x x
SEC. 5. Pre-trial conference; consent decree.-The judge shall put the parties and their counsels under oath, and they shall remain under oath in all pre-trial conferences.
The judge shall exert best efforts to persuade the parties to arrive at a settlement of the dispute. The judge may issue a consent decree approving the agreement between the parties in accordance with law, morals, public order and public policy to protect the right of the people to a balanced and healthful ecology.
x x x x
SEC. 10. Efforts to settle.- The court shall endeavor to make the parties to agree to compromise or settle in accordance with law at any stage of the proceedings before rendition of judgment. (Underscoring supplied.)
The Court takes judicial notice of a similar incident in 2009 when a guided-missile cruiser, the USS Port Royal, ran aground about half a mile off the Honolulu Airport Reef Runway and remained stuck for four days. After spending $6.5 million restoring the coral reef, the US government was reported to have paid the State of Hawaii $8.5 million in settlement over coral reef damage caused by the grounding.38
To underscore that the US government is prepared to pay appropriate compensation for the damage caused by the USS Guardian grounding, the US Embassy in the Philippines has announced the formation of a US interdisciplinary scientific team which will "initiate discussions with the Government of the Philippines to review coral reef rehabilitation options in Tubbataha, based on assessments by Philippine-based marine scientists." The US team intends to "help assess damage and remediation options, in coordination with the Tubbataha Management Office, appropriate Philippine government entities, non-governmental organizations, and scientific experts from Philippine universities."39
A rehabilitation or restoration program to be implemented at the cost of the violator is also a major relief that may be obtained under a judgment rendered in a citizens' suit under the Rules, viz:
RULES
SECTION 1. Reliefs in a citizen suit.-If warranted, the court may grant to the plaintiff proper reliefs which shall include the protection, preservation or rehabilitation of the environment and the payment of attorney's fees, costs of suit and other litigation expenses. It may also require the violator to submit a program of rehabilitation or restoration of the environment, the costs of which shall be borne by the violator, or to contribute to a special trust fund for that purpose subject to the control of the court.1âwphi1
In the light of the foregoing, the Court defers to the Executive Branch on the matter of compensation and rehabilitation measures through diplomatic channels. Resolution of these issues impinges on our relations with another State in the context of common security interests under the VFA. It is settled that "[t]he conduct of the foreign relations of our government is
committed by the Constitution to the executive and legislative-"the political" --departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision."40
On the other hand, we cannot grant the additional reliefs prayed for in the petition to order a review of the VFA and to nullify certain immunity provisions thereof.
As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora,41 the VFA was duly concurred in by the Philippine Senate and has been recognized as a treaty by the United States as attested and certified by the duly authorized representative of the United States government. The VF A being a valid and binding agreement, the parties are required as a matter of international law to abide by its terms and provisions.42 The present petition under the Rules is not the proper remedy to assail the constitutionality of its provisions. WHEREFORE, the petition for the issuance of the privilege of the Writ of Kalikasan is hereby DENIED.
No pronouncement as to costs.
SO ORDERED.
MARTIN S. VILLARAMA, JR.Associate Justice
WE CONCUR:
See Concurring OpinionMARIA LOURDES P. A. SERENO
Chief Justice
ANTONIO T. CARPIOAssociate Justice
PRESBITERO J. VELASCO, JR.Associate Justice
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
ARTURO D. BRIONAssociate Justice
DIOSDADO M. PERALTAAssociate Justice
LUCAS P. BERSAMINAssociate Justice
MARIANO C. DEL CASTILLOAssociate Justice
JOSE PORTUGAL PEREZAssociate Justice
(On official leave)JOSE CATRAL MENDOZA*
Associate Justice
BIENVENIDO L. REYESAssociate Justice
ESTELA M. PERLAS-BERNABEAssociate Justice
See Separate Concurring OpinionMARVIC M.V.F. LEONEN
Associate Justice
(No Part)FRANCIS H. JARDELEZA**Associate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the 1987 Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.
MARIA LOURDES P. A. SERENOChief Justice
3 "AN ACT ESTABLISHING THE TUBBATAHA REEFS NATURAL PARK IN THE PROVINCE OF PALAWAN AS A PROTECTED AREA UNDER THE NIPAS ACT (R.A. 7586) AND THE STRATEGIC ENVIRONMENTAL PLAN (SEP) FOR PALAWAN ACT (R.A. 7611), PROVIDING FOR ITS MANAGEMENT AND FOR OTHER PURPOSES."
8 Id. at 156-191. In a letter dated 27 May 2013, the DFA's Office of Legal Affairs informed this Court that it has received from the Embassy of the United States the Notice sent by this Court, with a request to return the same. It said that the US Embassy "asserts that it is not an agent for the service of process upon the individuals named in court documents, and that the transmission of the Court documents should have been
33 Art. 29 of UNCLOS defines warship as "a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline."
Environmental activists and scientists on Wednesday criticized a decision by the Philippine Supreme Court to dismiss a legal action against the US government for compensation over the grounding of a US Navy minesweeper in the Tubbataha Reef last year.The court ruled against issuing a writ of nature, an extraordinary legal remedy for cases involving massive environmental damage to the life, health, or property of inhabitants in two or more cities or provinces.The writ, filed by Bishop Pedro D Arigo of Palawan and environmental activists, pertained to the destruction of 2,346 square meters of pristine coral ecosystems at the UNESCO World Heritage-listed reef, when the US minesweeper USS Guardian ran aground in January 2013.It named Vice Admiral Scott Swift, commander of the US Seventh Fleet, Lt Cmdr Mark Rice, the ship's commanding officer, and a slew of Philippine officials led by President Benigno Aquino, in an attempt to seek liability for the ecological and environmental damage.
The court, however, said on Monday it has no jurisdiction over Swift and Rice."The Supreme Court decision on the petition … smacks of blind subservience to the United States," the People's Network for the Environment said in a statement. "We are dumbfounded and refuse to understand the logic behind this court decision."The court also dismissed a petition that demanded the US government pay as much as US$27 million in compensation for damages caused to the reef by the USS Guardian.The court said the call for damages should be done through a civil case and not in a petition for a writ of nature.It also said it is up to the Philippine government to demand compensation and rehabilitation from the United States.Activists have called on the Philippine government to demand a fine of up to US$27 million, a valuation close to the fines paid in the 2009 grounding of USS Port Royal in Hawaii.The Philippine government has only asked for US$1.4 million.Jose Clemente, spokesman for the People's Network, said in a statement the court decision "disappoints the environmental activist community".He said the court decision "is tantamount to letting the US Navy get away" and "shows that any foreign military vessels can illegally enter Philippine territories, trespass into protected areas, destroy our precious resources, and get away scot-free".
EN BANC
[G.R. No. 151445. April 11, 2002]
ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners, vs. HONORABLE EXECUTIVE SECRETARY as alter ego of HER EXCELLENCY GLORIA MACAPAGAL-ARROYO, and HONORABLE ANGELO REYES in his capacity as Secretary of National Defense, respondents.
SANLAKAS and PARTIDO NG MANGGAGAWA, petitioners-intervenors, vs. GLORIA MACAPAGAL-ARROYO, ALBERTO ROMULO, ANGELO REYES, respondents.
D E C I S I O N
DE LEON, JR., J.:
This case involves a petition for certiorari and prohibition as well as a petition-in-intervention, praying that respondents be restrained from proceeding with the so-called Balikatan 02-1 and that after
due notice and hearing, that judgment be rendered issuing a permanent writ of injunction and/or prohibition against the deployment of U.S. troops in Basilan and Mindanao for being illegal and in violation of the Constitution.
The facts are as follows:
Beginning January of this year 2002, personnel from the armed forces of the United States of America started arriving in Mindanao to take part, in conjunction with the Philippine military, in Balikatan 02-1. These so-called Balikatan exercises are the largest combined training operations involving Filipino and American troops. In theory, they are a simulation of joint military maneuvers pursuant to the Mutual Defense Treaty,[1] a bilateral defense agreement entered into by the Philippines and the United States in 1951.
Prior to the year 2002, the last Balikatan was held in 1995. This was due to the paucity of any formal agreement relative to the treatment of United States personnel visiting the Philippines.In the meantime, the respective governments of the two countries agreed to hold joint exercises on a reduced scale. The lack of consensus was eventually cured when the two nations concluded the Visiting Forces Agreement (VFA) in 1999.
The entry of American troops into Philippine soil is proximately rooted in the international anti-terrorism campaign declared by President George W. Bush in reaction to the tragic events that occurred on September 11, 2001. On that day, three (3) commercial aircrafts were hijacked, flown and smashed into the twin towers of the World Trade Center in New York City and the Pentagon building in Washington, D.C. by terrorists with alleged links to the al-Qaeda (the Base), a Muslim extremist organization headed by the infamous Osama bin Laden. Of no comparable historical parallels, these acts caused billions of dollars worth of destruction of property and incalculable loss of hundreds of lives.
On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for certiorari and prohibition, attacking the constitutionality of the joint exercise. [2] They were joined subsequently by SANLAKAS and PARTIDO NG MANGGAGAWA, both party-list organizations, who filed a petition-in-intervention on February 11, 2002.
Lim and Ersando filed suit in their capacities as citizens, lawyers and taxpayers. SANLAKAS and PARTIDO, on the other hand, aver that certain members of their organization are residents of Zamboanga and Sulu, and hence will be directly affected by the operations being conducted in Mindanao. They likewise pray for a relaxation on the rules relative to locus standi citing the unprecedented importance of the issue involved.
On February 7, 2002 the Senate conducted a hearing on the Balikatan exercise wherein Vice-President Teofisto T. Guingona, Jr., who is concurrently Secretary of Foreign Affairs, presented the Draft Terms of Reference (TOR).[3] Five days later, he approved the TOR, which we quote hereunder:
I. POLICY LEVEL
1. The Exercise shall be Consistent with the Philippine Constitution and all its activities shall be in consonance with the laws of the land and the provisions of the RP-US Visiting Forces Agreement (VFA).
2. The conduct of this training Exercise is in accordance with pertinent United Nations resolutions against global terrorism as understood by the respective parties.
3. No permanent US basing and support facilities shall be established. Temporary structures such as those for troop billeting, classroom instruction and messing may be set up for use by RP and US Forces during the Exercise.
4. The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under the authority of the Chief of Staff, AFP. In no instance will US Forces operate independently during field training exercises (FTX). AFP and US Unit Commanders will retain command over their respective forces under the overall authority of the Exercise Co-Directors. RP and US participants shall comply with operational instructions of the APP during the FTX.
5. The exercise shall be conducted and completed within a period of not more than six months, with the projected participation of 660 US personnel and 3,800 RP Forces. The Chief of Staff, AFP shall direct the Exercise Co-Directors to wind up and terminate the Exercise and other activities within the six month Exercise period.
6. The Exercise is a mutual counter-terrorism advising, assisting and training Exercise relative to Philippine efforts against the ASG, and will be conducted on the Island of Basilan. Further advising, assisting and training exercises shall be conducted in Malagutay and the Zamboanga area. Related activities in Cebu will be for support of the Exercise.
7. Only 160 US Forces organized in 12-man Special Forces Teams shall be deployed with AFP field commanders. The US teams shall remain at the Battalion Headquarters and, when approved, Company Tactical headquarters where they can observe and assess the performance of the APP Forces.
8. US exercise participants shall not engage in combat, without prejudice to their right of self-defense.
9. These terms of Reference are for purposes of this Exercise only and do not create additional legal obligations between the US Government and the Republic of the Philippines.
II. EXERCISE LEVEL
1. TRAINING
a. The Exercise shall involve the conduct of mutual military assisting, advising and training of RP and US Forces with the primary objective of enhancing the operational capabilities of both forces to combat terrorism.
b. At no time shall US Forces operate independently within RP territory.
c. Flight plans of all aircraft involved in the exercise will comply with the local air traffic regulations.
2. ADMINISTRATION & LOGISTICS
a. RP and US participants shall be given a country and area briefing at the start of the Exercise. This briefing shall acquaint US Forces on the culture and sensitivities of the Filipinos and the provisions of the VFA. The briefing shall also promote the full cooperation on the part of the RP and US participants for the successful conduct of the Exercise.
b. RP and US participating forces may share, in accordance with their respective laws and regulations, in the use of their resources, equipment and other assets. They will use their respective logistics channels.
c. Medical evaluation shall be jointly planned and executed utilizing RP and US assets and resources.
d. Legal liaison officers from each respective party shall be appointed by the Exercise Directors.
3. PUBLIC AFFAIRS
a. Combined RP-US Information Bureaus shall be established at the Exercise Directorate in Zamboanga City and at GHQ, AFP in Camp Aguinaldo, Quezon City.
b. Local media relations will be the concern of the AFP and all public affairs guidelines shall be jointly developed by RP and US Forces.
c. Socio-Economic Assistance Projects shall be planned and executed jointly by RP and US Forces in accordance with their respective laws and regulations, and in consultation with community and local government officials.
Contemporaneously, Assistant Secretary for American Affairs Minerva Jean A. Falcon and United States Charge d Affaires Robert Fitts signed the Agreed Minutes of the discussion between the Vice-President and Assistant Secretary Kelly.[4]
Petitioners Lim and Ersando present the following arguments:
I
THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE TREATY (MDT) in 1951 TO PROVIDE MUTUAL MILITARY ASSISTANCE IN ACCORDANCE WITH THE CONSTITUTIONAL PROCESSES OF EACH COUNTRY ONLY IN THE CASE OF AN ARMED ATTACK BY AN EXTERNAL AGGRESSOR, MEANING A THIRD COUNTRY AGAINST ONE OF THEM.
BY NO STRETCH OF THE IMAGINATION CAN IT BE SAID THAT THE ABU SAYYAF BANDITS IN BASILAN CONSTITUTE AN EXTERNAL ARMED FORCE THAT HAS SUBJECT THE PHILIPPINES TO AN ARMED EXTERNAL ATTACK TO WARRANT U.S. MILITARY ASSISTANCE UNDER THE MDT OF 1951.
II
NEITHER DOES THE VFA OF 1999 AUTHORIZE AMERICAN SOLDIERS TO ENGAGE IN COMBAT OPERATIONS IN PHILIPPINE TERRITORY, NOT EVEN TO FIRE BACK IF FIRED UPON.
Substantially the same points are advanced by petitioners SANLAKAS and PARTIDO.
In his Comment, the Solicitor General points to infirmities in the petitions regarding, inter alia, Lim and Ersandos standing to file suit, the prematurity of the action, as well as the impropriety of availing of certiorari to ascertain a question of fact. Anent their locus standi, the Solicitor General argues that first, they may not file suit in their capacities as taxpayers inasmuch as it has not been shown that Balikatan 02-1 involves the exercise of Congress taxing or spending powers. Second, their being lawyers does not invest them with sufficient personality to initiate the case, citing our ruling in Integrated Bar of the Philippines v. Zamora.[5] Third, Lim and Ersando have failed to demonstrate the requisite showing of direct personal injury. We agree.
It is also contended that the petitioners are indulging in speculation. The Solicitor General is of the view that since the Terms of Reference are clear as to the extent and duration of Balikatan 02-1, the issues raised by petitioners are premature, as they are based only on a fear of future violation of the Terms of Reference. Even petitioners resort to a special civil action for certiorari is assailed on the ground that the writ may only issue on the basis of established facts.
Apart from these threshold issues, the Solicitor General claims that there is actually no question of constitutionality involved. The true object of the instant suit, it is said, is to obtain an interpretation of the VFA. The Solicitor General asks that we accord due deference to the executive determination that Balikatan 02-1 is covered by the VFA, considering the Presidents monopoly in the field of foreign relations and her role as commander-in-chief of the Philippine armed forces.
Given the primordial importance of the issue involved, it will suffice to reiterate our view on this point in a related case:
Notwithstanding, in view of the paramount importance and the constitutional significance of the issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural barrier and takes cognizance of the petitions, as we have done in the early Emergency Powers Cases, where we had occasion to rule:
x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders issued by President Quirino although they were involving only an indirect and general interest shared in common with the public. The Court dismissed the objection that they were not proper parties and ruled that transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure. We have since then applied the exception in many other cases. [citation omitted]
This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC, Daza vs. Singson, and Basco vs. Phil. Amusement and Gaming Corporation, where we emphatically held:
Considering however the importance to the public of the case at bar, and in keeping with the Courts duty, under the 1987 Constitution, to determine whether or not the other branches of the government have kept themselves within the limits of the Constitution and the laws that they have not abused the discretion given to them, the Court has brushed aside technicalities of procedure and has taken cognizance of this petition. xxx
Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court ruled that in cases of transcendental importance, the court may relax the standing requirements and allow a suit to prosper even where there is no direct injury to the party claiming the right of judicial review.
Although courts generally avoid having to decide a constitutional question based on the doctrine of separation of powers, which enjoins upon the departments of the government a becoming respect for each others acts, this Court nevertheless resolves to take cognizance of the instant petitions.[6]
Hence, we treat with similar dispatch the general objection to the supposed prematurity of the action. At any rate, petitioners' concerns on the lack of any specific regulation on the latitude of activity US personnel may undertake and the duration of their stay has been addressed in the Terms of Reference.
The holding of Balikatan 02-1 must be studied in the framework of the treaty antecedents to which the Philippines bound itself. The first of these is the Mutual Defense Treaty (MDT, for brevity). The
MDT has been described as the core of the defense relationship between the Philippines and its traditional ally, the United States. Its aim is to enhance the strategic and technological capabilities of our armed forces through joint training with its American counterparts; the Balikatan is the largest such training exercise directly supporting the MDTs objectives. It is this treaty to which the VFA adverts and the obligations thereunder which it seeks to reaffirm.
The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it created a vacuum in US-Philippine defense relations, that is, until it was replaced by the Visiting Forces Agreement. It should be recalled that on October 10, 2000, by a vote of eleven to three, this court upheld the validity of the VFA.[7] The VFA provides the regulatory mechanism by which United States military and civilian personnel [may visit] temporarily in the Philippines in connection with activities approved by the Philippine Government. It contains provisions relative to entry and departure of American personnel, driving and vehicle registration, criminal jurisdiction, claims, importation and exportation, movement of vessels and aircraft, as well as the duration of the agreement and its termination. It is the VFA which gives continued relevance to the MDT despite the passage of years. Its primary goal is to facilitate the promotion of optimal cooperation between American and Philippine military forces in the event of an attack by a common foe.
The first question that should be addressed is whether Balikatan 02-1 is covered by the Visiting Forces Agreement. To resolve this, it is necessary to refer to the VFA itself. Not much help can be had therefrom, unfortunately, since the terminology employed is itself the source of the problem. The VFA permits United States personnel to engage, on an impermanent basis, in activities, the exact meaning of which was left undefined. The expression is ambiguous, permitting a wide scope of undertakings subject only to the approval of the Philippine government.[8] The sole encumbrance placed on its definition is couched in the negative, in that United States personnel must abstain from any activity inconsistent with the spirit of this agreement, and in particular, from any political activity. [9] All other activities, in other words, are fair game.
We are not left completely unaided, however. The Vienna Convention on the Law of Treaties, which contains provisos governing interpretations of international agreements, state:
SECTION 3. INTERPRETATION OF TREATIES
Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the party.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.
Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.
It is clear from the foregoing that the cardinal rule of interpretation must involve an examination of the text, which is presumed to verbalize the parties intentions. The Convention likewise dictates what may be used as aids to deduce the meaning of terms, which it refers to as the context of the treaty, as well as other elements may be taken into account alongside the aforesaid context. As explained by a writer on the Convention,
[t]he Commissions proposals (which were adopted virtually without change by the conference and are now reflected in Articles 31 and 32 of the Convention) were clearly based on the view that the text of a treaty must be presumed to be the authentic expression of the intentions of the parties; the Commission accordingly came down firmly in favour of the view that the starting point of interpretation is the elucidation of the meaning of the text, not an investigation ab initio into the intentions of the parties. This is not to say that the travaux prparatoires of a treaty, or the circumstances of its conclusion, are relegated to a subordinate, and wholly ineffective, role. As Professor Briggs points out, no rigid temporal prohibition on resort to travaux prparatoires of a treaty was intended by the use of the phrase supplementary means of interpretation in what is now Article 32 of the Vienna Convention. The distinction between the general rule of interpretation and the supplementary means of interpretation is intended rather to ensure that the supplementary means do not constitute an alternative, autonomous method of interpretation divorced from the general rule.[10]
The Terms of Reference rightly fall within the context of the VFA.
After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning of the word activities arose from accident. In our view, it was deliberately made that way to give both parties a certain leeway in negotiation. In this manner, visiting US forces may sojourn in Philippine territory for purposes other than military. As conceived, the joint exercises may include training on new techniques of patrol and surveillance to protect the nations marine resources, sea search-and-rescue operations to assist vessels in distress, disaster relief operations, civic action projects such as the building of school houses, medical and humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only logical to assume that Balikatan 02-1, a mutual anti-terrorism advising, assisting and training exercise, falls under the umbrella of sanctioned or allowable activities in the context of the agreement. Both the history and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-related activities as opposed to combat itself such as the one subject of the instant petition, are indeed authorized.
That is not the end of the matter, though. Granted that Balikatan 02-1 is permitted under the terms of the VFA, what may US forces legitimately do in furtherance of their aim to provide advice, assistance and training in the global effort against terrorism? Differently phrased, may American troops actually engage in combat in Philippine territory? The Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that US exercise participants may not engage in combat except in self-defense. We wryly note that this sentiment is admirable in the abstract but difficult in implementation. The target of Balikatan 02-1, the Abu Sayyaf, cannot reasonably be expected to sit idly while the battle is brought to their very doorstep. They cannot be expected to pick and choose their targets for they will not have the luxury of doing so. We state this point if only to signify our awareness that the parties straddle a fine line, observing the honored legal maxim Nemo potest facere per alium quod non potest facere per directum.[11] The indirect violation is actually petitioners worry, that in reality, Balikatan 02-1 is actually a war principally conducted by the United States government, and that the provision on self-defense serves only as camouflage to conceal the true nature of the exercise. A clear pronouncement on this matter thereby becomes crucial.
In our considered opinion, neither the MDT nor the VFA allow foreign troops to engage in an offensive war on Philippine territory. We bear in mind the salutary proscription stated in the Charter of the United Nations, to wit:
Article 2
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.
xxx xxx xxx xxx
4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
xxx xxx xxx xxx
In the same manner, both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other treaties and international agreements to which the Philippines is a party, must be read in the context of the 1987 Constitution. In particular, the Mutual Defense Treaty was concluded way before the present Charter, though it nevertheless remains in effect as a valid source of international obligation. The present Constitution contains key provisions useful in determining the extent to which foreign military troops are allowed in Philippine territory. Thus, in the Declaration of Principles and State Policies, it is provided that:
xxx xxx xxx xxx
SEC. 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.
xxx xxx xxx xxx
SEC. 7. The State shall pursue an independent foreign policy. In its relations with other states the paramount consideration shall be national sovereignty, territorial integrity, national interest, and the right to self-determination.
SEC. 8. The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in the country.
xxx xxx xxx xxx
The Constitution also regulates the foreign relations powers of the Chief Executive when it provides that [n]o treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate.[12] Even more pointedly, the Transitory Provisions state:
Sec. 25. After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting state.
The aforequoted provisions betray a marked antipathy towards foreign military presence in the country, or of foreign influence in general. Hence, foreign troops are allowed entry into the Philippines only by way of direct exception. Conflict arises then between the fundamental law and our obligations arising from international agreements.
A rather recent formulation of the relation of international law vis--vis municipal law was expressed in Philip Morris, Inc. v. Court of Appeals,[13] to wit:
xxx Withal, the fact that international law has been made part of the law of the land does not by any means imply the primacy of international law over national law in the municipal sphere.Under the doctrine of incorporation as applied in most countries, rules of international law are given a standing equal, not superior, to national legislation.
This is not exactly helpful in solving the problem at hand since in trying to find a middle ground, it favors neither one law nor the other, which only leaves the hapless seeker with an unsolved dilemma. Other more traditional approaches may offer valuable insights.
From the perspective of public international law, a treaty is favored over municipal law pursuant to the principle of pacta sunt servanda. Hence, [e]very treaty in force is binding upon the parties to it and must be performed by them in good faith.[14] Further, a party to a treaty is not allowed to invoke the provisions of its internal law as justification for its failure to perform a treaty.[15]
Our Constitution espouses the opposing view. Witness our jurisdiction as stated in section 5 of Article VIII:
The Supreme Court shall have the following powers:
xxx xxx xxx xxx
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and order of lower courts in:
(A) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.
xxx xxx xxx xxx
In Ichong v. Hernandez,[16] we ruled that the provisions of a treaty are always subject to qualification or amendment by a subsequent law, or that it is subject to the police power of the State.In Gonzales v. Hechanova,[17]
xxx As regards the question whether an international agreement may be invalidated by our courts, suffice it to say that the Constitution of the Philippines has clearly settled it in the affirmative, by providing, in Section 2 of Article VIII thereof, that the Supreme Court may not be deprived of its jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as the law or the rules of court may provide, final judgments and decrees of inferior courts in (1) All cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or regulation is in question. In other words, our Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.
The foregoing premises leave us no doubt that US forces are prohibited from engaging in an offensive war on Philippine territory.
Yet a nagging question remains: are American troops actively engaged in combat alongside Filipino soldiers under the guise of an alleged training and assistance exercise? Contrary to what petitioners would have us do, we cannot take judicial notice of the events transpiring down south, [18] as reported from the saturation coverage of the media. As a rule, we do not take cognizance of newspaper or electronic reports per se, not because of any issue as to their truth, accuracy, or impartiality, but for the simple reason that facts must be established in accordance with the rules of evidence. As a result, we cannot accept, in the absence of concrete proof, petitioners allegation that the Arroyo government is engaged in doublespeak in trying to pass off as a mere training exercise an offensive effort by foreign troops on native soil. The petitions invite us to speculate on what is really happening in Mindanao, to issue, make factual findings on matters well beyond our immediate perception, and this we are understandably loath to do.
It is all too apparent that the determination thereof involves basically a question of fact. On this point, we must concur with the Solicitor General that the present subject matter is not a fit topic for a special civil action for certiorari. We have held in too many instances that questions of fact are not entertained in such a remedy. The sole object of the writ is to correct errors of jurisdiction or grave abuse of discretion. The phrase grave abuse of discretion has a precise meaning in law, denoting abuse of discretion too patent and gross as to amount to an evasion of a positive duty, or a virtual refusal to perform the duty enjoined or act in contemplation of law, or where the power is exercised in an arbitrary and despotic manner by reason of passion and personal hostility.[19]
In this connection, it will not be amiss to add that the Supreme Court is not a trier of facts.[20]
Under the expanded concept of judicial power under the Constitution, courts are charged with the duty to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.[21] From the facts obtaining, we find that the holding of Balikatan 02-1 joint military exercise has not intruded into that penumbra of
error that would otherwise call for correction on our part. In other words, respondents in the case at bar have not committed grave abuse of discretion amounting to lack or excess of jurisdiction.
WHEREFORE, the petition and the petition-in-intervention are hereby DISMISSED without prejudice to the filing of a new petition sufficient in form and substance in the proper Regional Trial Court.
SO ORDERED.
Bellosillo, Melo, Mendoza, Quisumbing, and Carpio, JJ., concur.Davide, Jr., C.J., and Puno, J., join the main and separate opinion of J. Panganiban.Vitug, J., in the result.Kapunan, J., see dissenting opinion.Panganiban, J., see separate opinion.Ynares-Santiago, and Sandoval-Gutierrez, JJ., join the dissenting opinion of J. Kapunan.
[1] For ready reference, the text of the treaty is reproduced herein:
MUTUAL DEFENSE TREATYBETWEEN THE REPUBLIC OF THE PHILIPPINES
AND THE UNITED STATES OF AMERICA30 August 1951
The parties to this Treaty,
Reaffirming their faith in the purposes and principles of the Charter of the United Nations and their desire to live in peace with all peoples and all Governments, and desiring to strengthen the fabric of peace in the Pacific Area,
Recalling with mutual pride the historic relationship which brought their two peoples together in a common bond of sympathy and mutual ideals to fight side-by-side against imperialist aggression during the last war,
Desiring to declare publicly and formally their sense of unity and their common determination to defend themselves against external armed attack, so that no potential aggressor could be under the illusion that either of them stands alone in the Pacific Area,
Desiring further to strengthen their present efforts for collective defense for the preservation of peace and security pending the development of a more comprehensive system of regional security in the Pacific Area,
Agreeing that nothing in this present instrument shall be considered or interpreted as in any way or sense altering or diminishing any existing agreements or understandings between the United States of America and the Republic of the Philippines,
Have agreed as follows:
ARTICLE I.
The Parties undertake, as set forth in the Charter of the United Nations, to settle any international disputes in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purpose of the United Nations.
ARTICLE II.
In order more effectively to achieve the objective of this Treaty, the Parties separately and jointly by self-help and mutual aid will maintain and develop their individual and collective capacity to resist armed attack.
ARTICLE III.
The Parties, through their Foreign Ministers or their deputies, will consult together from time to time regarding the implementation of this Treaty and whenever in the opinion of either of them the territorial integrity, political independence or security of either of the Parties is threatened by external armed attack in the Pacific.
ARTICLE IV.
Each Party recognizes that an armed attack in the Pacific Area on either of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common dangers in accordance with its constitutional processes.
Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of the United Nations. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.
ARTICLE V.
For the purpose of Article IV, an armed attack on either of the Parties is deemed to include an attack on the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the Pacific or on its armed forces, public vessels or aircraft used in the Pacific.
ARTICLE VI.
This Treaty does not affect and shall not be interpreted as affecting in any way the rights and obligations of the Parties under the Charter of the United Nations or the responsibility of the United Nations for the maintenance of international peace and security.
ARTICLE VII.
This Treaty shall be ratified by the United States of America and the Republic of the Philippines in accordance with their respective constitutional processes and will come into force when instruments of ratification thereof have been exchanged by them at Manila.
ARTICLE VIII.
This Treaty shall remain in force indefinitely. Either Party may terminate it one year after notice has been given to the other party.
IN WITNESS WHEREOF the undersigned Plenipotentiaries have signed this Treaty.
DONE in duplicate at Washington this thirtieth day of August, 1951.
xxx xxx xxx xxx[2] The day before, the first petition in connection with the joint military enterprise was filed -- G.R. No. 151433, entitled In the Matter of Declaration as Constitutional and Legal the Balikatan RP-US Military Exercises. Petitioner therein Atty. Eduardo B. Inlayo manifested that he would be perfectly comfortable should the Court merely note his petition. We did not oblige him; in a Resolution dated February 12, 2002, we dismissed his petition on the grounds of insufficiency in form and substance and lack of jurisdiction. After extending a hearty Valentines greeting to the Court en banc, Atty. Inlayo promised to
laminate the aforesaid resolution as a testimonial of his once upon a time participation in an issue of national consequence.[3] Annex 1 of the Comment.[4] Annex 2 of the Comment. The Minutes state:
Secretary Guingona and Assistant Secretary Kelly welcomed the holding of Balikatan 02-1 exercise (the Exercise) and the conclusion of the Terms of Reference for the Exercise. Assistant Secretary Kelly thanked Secretary Guingona for Secretary Guingonas personal approval of the Terms of Reference.
Both Secretary Guingona and Assistant Secretary Kelly emphasized the importance of cooperating, within the bounds provided for by their respective constitutions and laws, in the fight against international terrorism.
Both Secretary Guingona and Assistant Secretary Kelly expressed the belief that the Exercise shall not in any way contribute to any escalation of other conflicts in Mindanao, shall not adversely affect the progress of ongoing peace negotiations between the Government of the Philippines and other parties, and shall not put at risk the friendly relations between the Philippines and its neighbors as well as with other states. Secretary Guingona stated that he had in mind the ongoing peace negotiations with the NDF and the MILF and he emphasized that it is important to make sure that the Exercise shall not in any way hinder those negotiations.
Both Secretary Guingona and Assistant Secretary Kelly stated that they look forward to the realization of the nearly US$100 million in security assistance for fiscal years 2001-2002 agreed upon between H.E. President Gloria Macapagal-Arroyo and H.E. President George W. Bush last November 2001.
Secretary Guingona stated that the Philippines welcomes the assistance that the U.S. will be providing, saying that while Filipino soldier does not lack experience, courage and determination, they could benefit from additional knowledge and updated military technologies.
Assistant Secretary Kelly said that he is glad the U.S. is able to provide advice, assistance and training and reiterated the policy position expressed by H.E. President George W. Bush during his State of the Nation Address that U.S. forces are in the Philippines to advise, assist and train Philippine military forces.
Both Secretary Guingona and Assistant Secretary Kelly reiterated that, as provided in the Terms of Reference, U.S. Forces shall not engage in combat during the Exercise, except in accordance with their right to act in self-defense.
Both Secretary Guingona and Assistant Secretary Kelly reiterated that, pursuant to Article II of the Visiting Forces Agreement, U.S. forces are bound to respect the laws of the Philippines during the Exercise.
Both Secretary Guingona and Assistant Secretary Kelly recognized that, pursuant to Article VI of the Visiting Forces Agreement, both the U.S. and Philippine Governments waive any and all claims against the other for any deaths or injuries to their military and civilian personnel from the Exercise.
Secretary Guingona and Assistant Secretary Kelly designated Ambassador Minerva Falcon and Charge d Affaires, a.i. Robert Fitts to initial these minutes.
Both secretary Guingona and Assistant Secretary Kelly agreed to consult from time to time on matters relating to the Exercise as well as on other matters.[5] 338 SCRA 81, 100-101 (2000).[6] BAYAN, et. al. v. Zamora, 342 SCRA 449 (2000).[7] BAYAN, et. al. v. Zamora, et. al., 342 SCRA 449 (2000).
[8] Article I [Definitions], VFA.[9] Article II [Respect for Law], VFA.[10] I.M. SINCLAIR, THE VIENNA CONVENTION ON THE LAW OF TREATIES 71-72 (1973).[11] No one is allowed to do indirectly what he is prohibited to do directly.[12] Sec. 21, Art. VII.[13] 224 SCRA 576, 593 (1993).[14] Vienna Convention on the Law of Treaties, art. 26.[15] Id, art. 27. However, this is without prejudice to the provisions of art. 46 of the convention, which provides:
1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.
2. A violation is manifest if it would be objectively evident to any State conducting itself in the manner in accordance with normal practice and in good faith.[16] 101 Phil. 1155, 1191 (1957).[17] 9 SCRA 230, 242 (1963).[18] Pertinent sections of Rule 129 provide: SECTION 1. Judicial notice, when mandatory.A court shall take judicial notice, without the introduction of evidence, of the existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive and judicial departments of the Philippines, the laws of nature, the measure of time, and the geographical divisions. Likewise, it is also provided in the next succeeding section: SEC. 2. Judicial notice, when discretionary.A court may take judicial notice of matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions.[19] Sanchez v. National Labor Relations Commission, 312 SCRA 727 (1999).[20] Hervas v. Court of Appeals, 319 SCRA 776 (1999); Valmonte v. Court of Appeals, 303 SCRA 278 (1999).[21] Article VIII, section 1.
SEPARATE OPINION *
PANGANIBAN, J.:
Through their Petition for Certiorari and Prohibition, Arthur D. Lim and Paulino R. Ersanda -- joined by Intervenors Sanlakas and Partido ng Manggagawa -- plead for the issuance of an order restraining the respondents from proceeding or continuing and completing the so-called Balikatan 02-1 on the ground that the exercise is not sanctioned by any treaty and is, therefore, allegedly unconstitutional.
Agreeing with the Comment of the Office of the Solicitor General (OSG), the ponencia of Mr. Justice Sabino R. de Leon Jr. dismisses the Petition essentially on these procedural grounds:
1. As taxpayers, petitioners do not have legal standing or locus standi, because Balikatan 02-1 does not involve the exercise by Congress of its taxing or spending power.
2. Certiorari and prohibition are improper remedies, because petitioners have not alleged sufficient facts upon which grave abuse of discretion or excess/lack of jurisdiction could be argued from.
3. The Petition is premature because the alleged violation of the Constitution is merely speculative, not actual or imminent.
4. Though entitled Certiorari and Prohibition, the Petition is really one for declaratory relief which merely seeks an advice or opinion, not a decision. The Supreme Court has no jurisdiction to issue opinions or advices.
Ordinarily, the above reasons would indeed be sufficient to cause the dismissal of a petition. However, because of the transcendental importance of the main question raised the constitutionality of the Balikatan exercise the Court, I believe, could have exempted this case from these procedural requirements and tackled the case on the merits, if only to put to rest the legality of this major event of public interest in our country and even in the world. I, for one, would have voted to set aside these legalistic obstacles, had the Petition presented enough factual moorings upon which to base an intelligent discussion and disposition of the legal issues.
For instance, this Court cannot be called upon to decide the factual issues of whether the US forces are actually engaging the Abu Sayyaf Group in combat and whether they will stay in our country permanently. This Court has no authority to conduct a trial, which can establish these factual antecedents. Knowing what these antecedents are is necessary to determine whether the Balikatan violates the Constitution or the Mutual Defense Treaty (MDT) of 1951 or the Visiting Forces Agreement (VFA) of 1999. Verily, the Petition has not even alleged that the American troops have indeed been unconstitutionally engaged in actual offensive combat. The contention that they would necessarily and surely violate the Constitution by participating in the joint exercise in Basilan is merely speculative. Petitioners aver:
American soldiers with high-tech weaponry, disguised as trainers or advisers to Filipino troops, will go to the war zones of Basilan. Hence, while dubbed as a military exercise, it is in reality a continuing combat operation by the AFP against the Abu Sayyaf to be participated in this time by U.S. troops. It has been admitted that U.S. advisers will accompany Filipino soldiers on patrol in the combat zones.
Also, a base of operation will be in the Sampinit complex which is in the heartland of the Abu Sayyafs territorial domain in Basilan island. A shooting war, not just an exercise, is unavoidable.
That a shooting war is unavoidable is conjectural; at best, a conclusion that is not borne by solid factual moorings. Cases cannot be decided on mere speculation or prophecy. The Petition claims that while the US troops are disguised as advisers or trainors or chaperons, they are actually combatants engaged in an offensive war against local insurgents. Again, there is no solid factual basis for this statement. It may or may not be true. The Petition also alleges, again without firm factual support, that the American forces will stay here indefinitely for a year or even more depending on the need of the AFP for them.
On the other hand, the OSG assures that petitioners apprehensions are belied by the Terms of Reference (TOR) approved by both the Philippines and the United States, which expressly limit the
conduct and completion of the exercise within a period not exceeding six (6) months and prohibits the American participants from engaging in combat, without prejudice to their right to self-defense.
I stress that cases cannot be decided by this Court on the basis of speculative or hypothetical assumptions like If the facts were these, then our decision would be this; on the other hand, if the facts change, then our ruling would be modified as follows. Decisions of this Court especially in certiorari and prohibition cases are issued only if the facts are clear and definite. As a rule, courts may not consider or judge facts or matters unless they are alleged in the pleadings and proven by the parties. Our duty is to apply the law to facts that are not in dispute.
In the absence of firm factual findings that the Americans will stay indefinitely in our country or are engaged in actual offensive combat with local insurgents as alleged by petitioners, respondent Philippine officials who are hosting the Balikatan exercise cannot possibly be imputed with grave abuse of discretion an indispensible element of certiorari.
True, there are some questions that may genuinely be raised in regard to the Balikatan 02-1 vis--vis our Constitution, the MDT and the VFA, like the following:
(1) Is the Abu Sayyaf Group composed of international terrorists whose acts and practices violate the United Nations Charter to such an extent as to pose a threat to international peace and security?
(2) Is there an external armed attack against the Philippines sufficient in force and magnitude as to justify an invocation of the MDT?
(3) Are the size, the kind, and the location of the Balikatan deployment justified by the nature, the scope, the duration and the kind of activities allowed under the VFA?
(4) Is it true that the real American objective is the rescue of ASG hostages Martin and Gracia Burnham, who are both American citizens? If so, is such rescue legally justified?
(5) Does the Balikatan pose a political question which the Supreme Court has no authority to rule upon, and which may only be decided by our people directly or through their elected representatives?
Unfortunately, the foregoing and other similar nagging questions cannot be judicially taken up and answered until a petition, sufficient in form and substance, is properly presented to the appropriate court.
FOR THE FOREGOING REASONS, I vote to DISMISS the present Petition.
* At petitioners' insistent request, the Court had to speed up the deliberation and disposition of this case, as the Balikatan may soon be completed and the Petition rendered moot. Hence, I wrote this Opinion hurriedly without the benefit of the usual citations of legal authorities.ARTHUR D. LIM vs. HON. EXECUTIVE SECRETARY (G.R. No. 151445) Case Digest
Facts: Arthur D. Lim and Paulino P. Ersando filed a petition for certiorari and prohibition attacking the constitutionality of “Balikatan-02-1”. They were subsequently joined by SANLAKAS and PARTIDO NG MANGGAGAWA, both party-list organizations, who filed a petition-in-intervention.
Lim and Ersando filed suits in their capacities as citizens, lawyers and taxpayers. SANLAKAS and PARTIDO on the other hand, claimed that certain members of their organization are residents of Zamboanga and Sulu, and hence will be directly affected by the operations being conducted in Mindanao.
The petitioners alleged that “Balikatan-02-1” is not covered by the Mutual Defense Treaty (MDT) between the Philippines and the United States. Petitioners posited that the MDT only provides for mutual military assistance in case of armed attack by an external aggressor against the Philippines or the US. Petitioners also claim that the Visiting Forces Agreement (VFA) does not authorize American Soldiers to engage in combat operations in Philippine Territory.
Issue:
Is the “Balikatan-02-1” inconsistent with the Philippine Constitution?
Ruling:
The MDT is the core of the defense relationship between the Philippines and the US and it is the VFA which gives continued relevance to it. Moreover, it is the VFA that gave legitimacy to the current Balikatan exercise.
The constitution leaves us no doubt that US Forces are prohibited from engaging war on Philippine territory. This limitation is explicitly provided for in the Terms of Reference of the Balikatan exercise. The issues that were raised by the petitioners was only based on fear of future violation of the Terms of Reference.
Based on the facts obtaining, the Supreme court find that the holding of “Balikatan-02-1” joint military exercise has not intruded into that penumbra of error that would otherwise call for the correction on its part.
The petition and the petition-in-intervention is DISMISSED.Lim v. Executive Secretary
Lessons Applicable: Locus Standi, International Law v. Muncipal Law, Certiorari, Incorporation Clause, Treaties
Laws Applicable: Constitution
FACTS:
Pursuant to the Visiting Forces Agreement (VFA) signed in 1999, personnel from the armed forces of the United States of America started arriving in Mindanao to take partin "Balikatan 02-1” on January 2002. The Balikatan 02-1 exercises involves the simulation of joint military maneuvers pursuant to the Mutual Defense Treaty, a bilateral defense agreement entered into by the Philippines and the United States in 1951. The exercise is rooted from the international anti-terrorism campaign declared by President George W. Bush in reaction to the 3 commercial aircrafts hijacking that smashed into twin towers of the World Trade Center in New York City and the Pentagon building in Washington, D.C. allegedly by the al-Qaeda headed by the Osama
bin Laden that occurred on September 11, 2001. Arthur D. Lim and Paulino P. Ersando as citizens, lawyers and taxpayers filed a petition for certiorari and prohibition attacking the constitutionality of the joint exercise. Partylists Sanlakas and Partido Ng Manggagawa as residents of Zamboanga and Sulu directly affected by the operations filed a petition-in-intervention.
The Solicitor General commented the prematurity of the action as it is based only on a fear of future violation of the Terms of Reference and impropriety of availing of certiorari to ascertain a question of fact specifically interpretation of the VFA whether it is covers "Balikatan 02-1” and no question of constitutionality is involved. Moreover, there is lack of locus standi since it does not involve tax spending and there is no proof of direct personal injury.
ISSUE: W/N the petition and the petition-in-intervention should prosper.
HELD: NO. Petition and the petition-in-intervention are hereby DISMISSED without prejudice to the filing of a new petition sufficient in form and substance in the proper Regional Trial Court - Supreme Court is not a trier of facts
Doctrine of Importance to the PublicConsidering however the importance to the public of the case at bar, and in keeping with the Court's duty, under the 1987 Constitution, to determine whether or not the other branches of the government have kept themselves within the limits of the Constitution and the laws that they have not abused the discretion given to them, the Court has brushed aside technicalities of procedure and has taken cognizance of this petition.
Although courts generally avoid having to decide a constitutional question based on the doctrine of separation of powers, which enjoins upon the department of the government a becoming respect for each other's act, this Court nevertheless resolves to take cognizance of the instant petition.Interpretation of TreatyThe VFA permits United States personnel to engage, on an impermanent basis, in "activities," the exact meaning of which was left undefined. The expression is ambiguous, permitting a wide scope of undertakings subject only to the approval of the Philippine government. The sole encumbrance placed on its definition is couched in the negative, in that United States personnel must "abstain from any activity inconsistent with the spirit of this agreement, and in particular, from any political activity." All other activities, in other words, are fair game.To aid in this, the Vienna Convention on the Law of Treaties Article 31 SECTION 3 and Article 32 contains provisos governing interpretations of international agreements. It is clear from the foregoing that the cardinal rule of interpretation must involve an examination of the text, which is presumed to verbalize the parties' intentions. The Convention likewise dictates what may be used as aids to deduce the meaning of terms, which it refers to as the context of the treaty, as well as other elements may be taken into account alongside the aforesaid context. According to Professor Briggs, writer on the Convention, the distinction between the general rule of interpretation and the supplementary means of interpretation is intended rather to ensure that
the supplementary means do not constitute an alternative, autonomous method of interpretation divorced from the general rule.The meaning of the word “activities" was deliberately made that way to give both parties a certain leeway in negotiation. Thus, the VFA gives legitimacy to the current Balikatan exercises. Both the history and intent of the Mutual Defense Treaty and the VFA support the conclusion that combat-related activities -as opposed to combat itself -such as the one subject of the instant petition, are indeed authorized.The Terms of Reference are explicit enough. Paragraph 8 of section I stipulates that US exercise participants may not engage in combat "except in self-defense." ." The indirect violation is actually petitioners' worry, that in reality, "Balikatan 02-1" is actually a war principally conducted by the United States government, and that the provision on self-defense serves only as camouflage to conceal the true nature of the exercise. A clear pronouncement on this matter thereby becomes crucial. In our considered opinion, neither the MDT nor the VFA allow foreign troops to engage in an offensive war on Philippine territory. Under the salutary proscription stated in Article 2 of the Charter of the United Nations.Both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other treaties and international agreements to which the Philippines is a party, must be read in the context of the 1987 Constitution especially Sec. 2, 7 and 8 of Article 2: Declaration of Principles and State Policies in this case. The Constitution also regulates the foreign relations powers of the Chief Executive when it provides that "[n]o treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate." Even more pointedly Sec. 25 on Transitory Provisions which shows antipathy towards foreign military presence in the country, or of foreign influence in general. Hence, foreign troops are allowed entry into the Philippines only by way of direct exception.International Law vs. Fundamental Law and Municipal LawsConflict arises then between the fundamental law and our obligations arising from international agreements.Philip Morris, Inc. v. Court of Appeals: “Withal, the fact that international law has been made part of the law of the land does not by any means imply the primacy of international law over national law in the municipal sphere. Under the doctrine of incorporation as applied in most countries, rules of international law are given a standing equal, not superior, to national legislation.”From the perspective of public international law, a treaty is favored over municipal law pursuant to the principle of pacta sunt servanda. Hence, "[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith." Further, a party to a treaty is not allowed to "invoke the provisions of its internal law as justification for its failure to perform a treaty."Our Constitution espouses the opposing view as stated in section 5 of Article VIII: “The Supreme Court shall have the following powers: xxx(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and order of lower courts in:(A) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.”
Ichong v. Hernandez: “provisions of a treaty are always subject to qualification or amendment by a subsequent law, or that it is subject to the police power of the State”Gonzales v. Hechanova: “our Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.” The foregoing premises leave us no doubt that US forces are prohibited / from engaging in an offensive war on Philippine territory.
EN BANC
[G.R. No. 138570. October 10, 2000]
BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT, BISHOP TOMAS MILLAMENA (Iglesia Filipina Independiente), BISHOP ELMER BOLOCAN (United Church of Christ of the Phil.), DR. REYNALDO LEGASCA, MD, KILUSANG MAMBUBUKID NG PILIPINAS, KILUSANG MAYO UNO, GABRIELA, PROLABOR, and the PUBLIC INTEREST LAW CENTER, petitioners, vs. EXECUTIVE SECRETARY RONALDO ZAMORA, FOREIGN AFFAIRS SECRETARY DOMINGO SIAZON, DEFENSE SECRETARY ORLANDO MERCADO, BRIG. GEN. ALEXANDER AGUIRRE, SENATE PRESIDENT MARCELO FERNAN, SENATOR FRANKLIN DRILON, SENATOR BLAS OPLE, SENATOR RODOLFO BIAZON, and SENATOR FRANCISCO TATAD, respondents.
[G.R. No. 138572. October 10, 2000]
PHILIPPINE CONSTITUTION ASSOCIATION, INC.(PHILCONSA), EXEQUIEL B. GARCIA, AMADOGAT INCIONG, CAMILO L. SABIO, AND RAMON A. GONZALES, petitioners, vs. HON. RONALDO B. ZAMORA, as Executive Secretary, HON. ORLANDO MERCADO, as Secretary of National Defense, and HON. DOMINGO L. SIAZON, JR., as Secretary of Foreign Affairs, respondents.
[G.R. No. 138587. October 10, 2000]
TEOFISTO T. GUINGONA, JR., RAUL S. ROCO, and SERGIO R. OSMEA III, petitioners, vs. JOSEPH E. ESTRADA, RONALDO B. ZAMORA, DOMINGO L. SIAZON, JR., ORLANDO B. MERCADO, MARCELO B. FERNAN, FRANKLIN M. DRILON, BLAS F. OPLE and RODOLFO G. BIAZON, respondents.
[G.R. No. 138680. October 10, 2000]
INTEGRATED BAR OF THE PHILIPPINES, Represented by its National President, Jose Aguila Grapilon, petitioners, vs. JOSEPH EJERCITO ESTRADA, in his capacity as President, Republic of the Philippines, and HON. DOMINGO SIAZON, in his capacity as Secretary of Foreign Affairs, respondents.
[G.R. No. 138698. October 10, 2000]
JOVITO R. SALONGA, WIGBERTO TAADA, ZENAIDA QUEZON-AVENCEA, ROLANDO SIMBULAN, PABLITO V. SANIDAD, MA. SOCORRO I. DIOKNO, AGAPITO A. AQUINO, JOKER P. ARROYO, FRANCISCO C. RIVERA JR., RENE A.V. SAGUISAG, KILOSBAYAN, MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners, vs. THE EXECUTIVE SECRETARY, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, SENATE PRESIDENT MARCELO B. FERNAN, SENATOR BLAS F. OPLE, SENATOR RODOLFO G. BIAZON, AND ALL OTHER PERSONS ACTING THEIR CONTROL, SUPERVISION, DIRECTION, AND INSTRUCTION IN RELATION TO THE VISITING FORCES AGREEMENT (VFA), respondents.
D E C I S I O N
BUENA, J.:
Confronting the Court for resolution in the instant consolidated petitions for certiorari and prohibition are issues relating to, and borne by, an agreement forged in the turn of the last century between the Republic of the Philippines and the United States of America -the Visiting Forces Agreement.
The antecedents unfold.
On March 14, 1947, the Philippines and the United States of America forged a Military Bases Agreement which formalized, among others, the use of installations in the Philippine territory by United States military personnel. To further strengthen their defense and security relationship, the Philippines and the United States entered into a Mutual Defense Treaty on August 30, 1951. Under the treaty, the parties agreed to respond to any external armed attack on their territory, armed forces, public vessels, and aircraft.[1]
In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the Philippines and the United States negotiated for a possible extension of the military bases agreement. On September 16, 1991, the Philippine Senate rejected the proposed RP-US Treaty of Friendship, Cooperation and Security which, in effect, would have extended the presence of US military bases in the Philippines.[2] With the expiration of the RP-US Military Bases Agreement, the periodic military exercises conducted between the two countries were held in abeyance. Notwithstanding, the defense and security relationship between the Philippines and the United States of America continued pursuant to the Mutual Defense Treaty.
On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant Secretary for Asia Pacific Kurt Campbell, met with the Philippine panel, headed by Foreign Affairs Undersecretary Rodolfo Severino Jr., to exchange notes on the complementing strategic interests of the United States and the Philippines in the Asia-Pacific region. Both sides discussed, among other things, the possible elements of the Visiting Forces Agreement (VFA for brevity). Negotiations by both panels on the VFA led to a consolidated draft text, which in turn resulted to a final series of conferences and negotiations[3] that culminated in Manila on January 12 and 13, 1998. Thereafter, then President Fidel V. Ramos approved the VFA, which was respectively signed by public respondent Secretary Siazon and Unites States Ambassador Thomas Hubbard on February 10, 1998.
On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign Affairs, ratified the VFA.[4]
On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo Zamora, officially transmitted to the Senate of the Philippines, [5] the Instrument of Ratification, the letter of the President[6] and the VFA, for concurrence pursuant to Section 21, Article VII of the 1987 Constitution. The Senate, in turn, referred the VFA to its Committee on Foreign Relations, chaired by Senator Blas F. Ople, and its Committee on National Defense and Security, chaired by Senator Rodolfo G. Biazon, for their joint consideration and recommendation. Thereafter, joint public hearings were held by the two Committees.[7]
On May 3, 1999, the Committees submitted Proposed Senate Resolution No. 443[8] recommending the concurrence of the Senate to the VFA and the creation of a Legislative Oversight Committee to oversee its implementation. Debates then ensued.
On May 27, 1999, Proposed Senate Resolution No. 443 was approved by the Senate, by a two-thirds (2/3) vote[9] of its members. Senate Resolution No. 443 was then re-numbered as Senate Resolution No. 18.[10]
On June 1, 1999, the VFA officially entered into force after an Exchange of Notes between respondent Secretary Siazon and United States Ambassador Hubbard.
The VFA, which consists of a Preamble and nine (9) Articles, provides for the mechanism for regulating the circumstances and conditions under which US Armed Forces and defense personnel may be present in the Philippines, and is quoted in its full text, hereunder:
Article IDefinitions
As used in this Agreement, United States personnel means United States military and civilian personnel temporarily in the Philippines in connection with activities approved by the Philippine Government.
Within this definition:
1. The term military personnel refers to military members of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard.
2. The term civilian personnel refers to individuals who are neither nationals of, nor ordinary residents in the Philippines and who are employed by the United States armed forces or who are accompanying the United States armed forces, such as employees of the American Red Cross and the United Services Organization.
Article IIRespect for Law
It is the duty of the United States personnel to respect the laws of the Republic of the Philippines and to abstain from any activity inconsistent with the spirit of this agreement, and, in particular, from any political activity in the Philippines. The Government of the United States shall take all measures within its authority to ensure that this is done.
Article IIIEntry and Departure
1. The Government of the Philippines shall facilitate the admission of United States personnel and their departure from the Philippines in connection with activities covered by this agreement.
2. United States military personnel shall be exempt from passport and visa regulations upon entering and departing the Philippines.
3. The following documents only, which shall be presented on demand, shall be required in respect of United States military personnel who enter the Philippines:
(a) personal identity card issued by the appropriate United States authority showing full name, date of birth, rank or grade and service number (if any), branch of service and photograph;
(b) individual or collective document issued by the appropriate United States authority, authorizing the travel or visit and identifying the individual or group as United States military personnel; and
(c) the commanding officer of a military aircraft or vessel shall present a declaration of health, and when required by the cognizant representative of the Government of the Philippines, shall conduct a quarantine inspection and will certify that the aircraft or vessel is free from quarantinable diseases. Any quarantine inspection of United States aircraft or United States vessels or cargoes thereon shall be conducted by the United States commanding officer in accordance with the international health regulations as promulgated by the World Health Organization, and mutually agreed procedures.
4. United States civilian personnel shall be exempt from visa requirements but shall present, upon demand, valid passports upon entry and departure of the Philippines.
5. If the Government of the Philippines has requested the removal of any United States personnel from its territory, the United States authorities shall be responsible for receiving the person concerned within its own territory or otherwise disposing of said person outside of the Philippines.
Article IVDriving and Vehicle Registration
1. Philippine authorities shall accept as valid, without test or fee, a driving permit or license issued by the appropriate United States authority to United States personnel for the operation of military or official vehicles.
2. Vehicles owned by the Government of the United States need not be registered, but shall have appropriate markings.
Article VCriminal Jurisdiction
1. Subject to the provisions of this article:
(a) Philippine authorities shall have jurisdiction over United States personnel with respect to offenses committed within the Philippines and punishable under the law of the Philippines.
(b) United States military authorities shall have the right to exercise within the Philippines all criminal and disciplinary jurisdiction conferred on them by the military law of the United States over United States personnel in the Philippines.
2. (a) Philippine authorities exercise exclusive jurisdiction over United States personnel with respect to offenses, including offenses relating to the security of the Philippines, punishable under the laws of the Philippines, but not under the laws of the United States.
(b) United States authorities exercise exclusive jurisdiction over United States personnel with respect to offenses, including offenses relating to the security of the United States, punishable under the laws of the United States, but not under the laws of the Philippines.
(c) For the purposes of this paragraph and paragraph 3 of this article, an offense relating to security means:
(1) treason;
(2) sabotage, espionage or violation of any law relating to national defense.
3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall apply:
(a) Philippine authorities shall have the primary right to exercise jurisdiction over all offenses committed by United States personnel, except in cases provided for in paragraphs 1(b), 2 (b), and 3 (b) of this Article.
(b) United States military authorities shall have the primary right to exercise jurisdiction over United States personnel subject to the military law of the United States in relation to.
(1) offenses solely against the property or security of the United States or offenses solely against the property or person of United States personnel; and
(2) offenses arising out of any act or omission done in performance of official duty.
(c) The authorities of either government may request the authorities of the other government to waive their primary right to exercise jurisdiction in a particular case.
(d) Recognizing the responsibility of the United States military authorities to maintain good order and discipline among their forces, Philippine authorities will, upon request by the United States, waive their primary right to exercise jurisdiction except in cases of particular importance to the Philippines. If the Government of the Philippines determines that the case is of particular importance, it shall communicate such determination to the United States authorities within twenty (20) days after the Philippine authorities receive the United States request.
(e) When the United States military commander determines that an offense charged by authorities of the Philippines against United states personnel arises out of an act or omission done in the performance of official duty, the commander will issue a certificate setting forth such determination. This certificate will be transmitted to the appropriate authorities of the Philippines and will constitute sufficient proof of performance of official duty for the purposes of paragraph 3(b)(2) of this Article. In those cases where the Government of the Philippines believes the circumstances of the case require a review of the duty certificate, United States military authorities and Philippine authorities shall consult immediately. Philippine authorities at the highest levels may also present any information bearing on its validity. United States military authorities shall take full account of the Philippine position. Where appropriate, United States military authorities will take disciplinary or other action against offenders in official duty cases, and notify the Government of the Philippines of the actions taken.
(f) If the government having the primary right does not exercise jurisdiction, it shall notify the authorities of the other government as soon as possible.
(g) The authorities of the Philippines and the United States shall notify each other of the disposition of all cases in which both the authorities of the Philippines and the United States have the right to exercise jurisdiction.
4. Within the scope of their legal competence, the authorities of the Philippines and United States shall assist each other in the arrest of United States personnel in the Philippines and in handling them over to authorities who are to exercise jurisdiction in accordance with the provisions of this article.
5. United States military authorities shall promptly notify Philippine authorities of the arrest or detention of United States personnel who are subject of Philippine primary or exclusive jurisdiction. Philippine authorities shall promptly notify United States military authorities of the arrest or detention of any United States personnel.
6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings. United States military authorities shall, upon formal notification by the Philippine authorities and without delay, make such personnel available to those authorities in time for any investigative or judicial proceedings relating to the offense with which the person has been charged in extraordinary cases, the Philippine Government shall present its position to the United States Government regarding custody, which the United States Government shall take into full account. In the event Philippine judicial proceedings are not completed within one year, the United States shall be relieved of any obligations under this paragraph. The one-year period will not include the time necessary to appeal. Also, the one-year period will not include any time during which scheduled trial procedures are delayed because
United States authorities, after timely notification by Philippine authorities to arrange for the presence of the accused, fail to do so.
7. Within the scope of their legal authority, United States and Philippine authorities shall assist each other in the carrying out of all necessary investigation into offenses and shall cooperate in providing for the attendance of witnesses and in the collection and production of evidence, including seizure and, in proper cases, the delivery of objects connected with an offense.
8. When United States personnel have been tried in accordance with the provisions of this Article and have been acquitted or have been convicted and are serving, or have served their sentence, or have had their sentence remitted or suspended, or have been pardoned, they may not be tried again for the same offense in the Philippines. Nothing in this paragraph, however, shall prevent United States military authorities from trying United States personnel for any violation of rules of discipline arising from the act or omission which constituted an offense for which they were tried by Philippine authorities.
9. When United States personnel are detained, taken into custody, or prosecuted by Philippine authorities, they shall be accorded all procedural safeguards established by the law of the Philippines. At the minimum, United States personnel shall be entitled:
(a) To a prompt and speedy trial;
(b) To be informed in advance of trial of the specific charge or charges made against them and to have reasonable time to prepare a defense;
(c) To be confronted with witnesses against them and to cross examine such witnesses;
(d) To present evidence in their defense and to have compulsory process for obtaining witnesses;
(e) To have free and assisted legal representation of their own choice on the same basis as nationals of the Philippines;
(f) To have the service of a competent interpreter; and
(g) To communicate promptly with and to be visited regularly by United States authorities, and to have such authorities present at all judicial proceedings. These proceedings shall be public unless the court, in accordance with Philippine laws, excludes persons who have no role in the proceedings.
10. The confinement or detention by Philippine authorities of United States personnel shall be carried out in facilities agreed on by appropriate Philippine and United States authorities. United States Personnel serving sentences in the Philippines shall have the right to visits and material assistance.
11. United States personnel shall be subject to trial only in Philippine courts of ordinary jurisdiction, and shall not be subject to the jurisdiction of Philippine military or religious courts.
Article VIClaims
1. Except for contractual arrangements, including United States foreign military sales letters of offer and acceptance and leases of military equipment, both governments waive any and all claims against each other for damage, loss or destruction to property of each others armed forces or for death or injury to their military and civilian personnel arising from activities to which this agreement applies.
2. For claims against the United States, other than contractual claims and those to which paragraph 1 applies, the United States Government, in accordance with United States law regarding foreign claims, will pay just and reasonable compensation in settlement of meritorious claims for damage, loss, personal injury or death, caused by acts or omissions of United States personnel, or otherwise incident to the non-combat activities of the United States forces.
Article VIIImportation and Exportation
1. United States Government equipment, materials, supplies, and other property imported into or acquired in the Philippines by or on behalf of the United States armed forces in connection with activities to which this agreement applies, shall be free of all Philippine duties, taxes and other similar charges. Title to such property shall remain with the United States, which may remove such property from the Philippines at any time, free from export duties, taxes, and other similar charges. The exemptions provided in this paragraph shall also extend to any duty, tax, or other similar charges which would otherwise be assessed upon such property after importation into, or acquisition within, the Philippines. Such property may be removed from the Philippines, or disposed of therein, provided that disposition of such property in the Philippines to persons or entities not entitled to exemption from applicable taxes and duties shall be subject to payment of such taxes, and duties and prior approval of the Philippine Government.
2. Reasonable quantities of personal baggage, personal effects, and other property for the personal use of United States personnel may be imported into and used in the Philippines free of all duties, taxes and other similar charges during the period of their temporary stay in the Philippines. Transfers to persons or entities in the Philippines not entitled to import privileges may only be made upon prior approval of the appropriate Philippine authorities including payment by the recipient of applicable duties and taxes imposed in accordance with the laws of the Philippines. The exportation of such property and of property acquired in the Philippines by United States personnel shall be free of all Philippine duties, taxes, and other similar charges.
Article VIIIMovement of Vessels and Aircraft
1. Aircraft operated by or for the United States armed forces may enter the Philippines upon approval of the Government of the Philippines in accordance with procedures stipulated in implementing arrangements.
2. Vessels operated by or for the United States armed forces may enter the Philippines upon approval of the Government of the Philippines. The movement of vessels shall be in accordance with international custom and practice governing such vessels, and such agreed implementing arrangements as necessary.
3. Vehicles, vessels, and aircraft operated by or for the United States armed forces shall not be subject to the payment of landing or port fees, navigation or over flight charges, or tolls or other use charges, including light and harbor dues, while in the Philippines. Aircraft operated by or for the United States armed forces shall observe local air traffic control regulations while in the Philippines. Vessels owned or operated by the United States solely on United States Government non-commercial service shall not be subject to compulsory pilotage at Philippine ports.
Article IXDuration and Termination
This agreement shall enter into force on the date on which the parties have notified each other in writing through the diplomatic channel that they have completed their constitutional requirements for entry into force. This agreement shall remain in force until the expiration of 180 days from the date on which either party gives the other party notice in writing that it desires to terminate the agreement.
Via these consolidated[11] petitions for certiorari and prohibition, petitioners - as legislators, non-governmental organizations, citizens and taxpayers - assail the constitutionality of the VFA and impute to herein respondents grave abuse of discretion in ratifying the agreement.
We have simplified the issues raised by the petitioners into the following:
I
Do petitioners have legal standing as concerned citizens, taxpayers, or legislators to question the constitutionality of the VFA?
II
Is the VFA governed by the provisions of Section 21, Article VII or of Section 25, Article XVIII of the Constitution?
III
Does the VFA constitute an abdication of Philippine sovereignty?
a. Are Philippine courts deprived of their jurisdiction to hear and try offenses committed by US military personnel?
b. Is the Supreme Court deprived of its jurisdiction over offenses punishable by reclusion perpetua or higher?
IV
Does the VFA violate:
a. the equal protection clause under Section 1, Article III of the Constitution?
b. the Prohibition against nuclear weapons under Article II, Section 8?
c. Section 28 (4), Article VI of the Constitution granting the exemption from taxes and duties for the equipment, materials supplies and other properties imported into or acquired in the Philippines by, or on behalf, of the US Armed Forces?
LOCUS STANDI
At the outset, respondents challenge petitioners standing to sue, on the ground that the latter have not shown any interest in the case, and that petitioners failed to substantiate that they have sustained, or will sustain direct injury as a result of the operation of the VFA.[12] Petitioners, on the other hand, counter that the validity or invalidity of the VFA is a matter of transcendental importance which justifies their standing.[13]
A party bringing a suit challenging the constitutionality of a law, act, or statute must show not only that the law is invalid, but also that he has sustained or in is in immediate, or imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. He must show that he has been, or is about to be, denied some right or privilege to which he is lawfully entitled, or that he is about to be subjected to some burdens or penalties by reason of the statute complained of.[14]
In the case before us, petitioners failed to show, to the satisfaction of this Court, that they have sustained, or are in danger of sustaining any direct injury as a result of the enforcement of the VFA. As taxpayers, petitioners have not established that the VFA involves the exercise by Congress of its taxing or spending powers.[15] On this point, it bears stressing that a taxpayers suit refers to a case where the act complained of directly involves the illegal disbursement of public funds derived from taxation.[16] Thus, inBugnay Const. & Development Corp. vs. Laron[17], we held:
x x x it is exigent that the taxpayer-plaintiff sufficiently show that he would be benefited or injured by the judgment or entitled to the avails of the suit as a real party in interest. Before he can invoke the power of judicial review, he must specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by taxation and that he will sustain a direct injury as a result of the enforcement of the questioned statute or contract. It is not sufficient that he has merely a general interest common to all members of the public.
Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in the absence of any allegation by petitioners that public funds are being misspent or illegally expended, petitioners, as taxpayers, have no legal standing to assail the legality of the VFA.
Similarly, Representatives Wigberto Taada, Agapito Aquino and Joker Arroyo, as petitioners-legislators, do not possess the requisite locus standi to maintain the present suit. While this Court, in Phil. Constitution Association vs. Hon. Salvador Enriquez,[18] sustained the legal standing of a member of the Senate and the House of Representatives to question the validity of a presidential veto or a condition imposed on an item in an appropriation bull, we cannot, at this instance, similarly uphold petitioners standing as members of Congress, in the absence of a clear showing of any direct injury to their person or to the institution to which they belong.
Beyond this, the allegations of impairment of legislative power, such as the delegation of the power of Congress to grant tax exemptions, are more apparent than real. While it may be true that petitioners pointed to provisions of the VFA which allegedly impair their legislative
powers, petitioners failed however to sufficiently show that they have in fact suffered direct injury.
In the same vein, petitioner Integrated Bar of the Philippines (IBP) is stripped of standing in these cases. As aptly observed by the Solicitor General, the IBP lacks the legal capacity to bring this suit in the absence of a board resolution from its Board of Governors authorizing its National President to commence the present action.[19]
Notwithstanding, in view of the paramount importance and the constitutional significance of the issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural barrier and takes cognizance of the petitions, as we have done in the early Emergency Powers Cases,[20] where we had occasion to rule:
x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive orders issued by President Quirino although they were involving only an indirect and general interest shared in common with the public. The Court dismissed the objection that they were not proper parties and ruled that transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure. We have since then applied the exception in many other cases. (Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA 343). (Underscoring Supplied)
This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC,[21] Daza vs. Singson,[22] and Basco vs. Phil. Amusement and Gaming Corporation,[23] where we emphatically held:
Considering however the importance to the public of the case at bar, and in keeping with the Courts duty, under the 1987 Constitution, to determine whether or not the other branches of the government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them, the Court has brushed aside technicalities of procedure and has taken cognizance of this petition. x x x
Again, in the more recent case of Kilosbayan vs. Guingona, Jr.,[24] thisCourt ruled that in cases of transcendental importance, the Court may relax the standing requirements and allow a suit to prosper even where there is no direct injury to the party claiming the right of judicial review.
Although courts generally avoid having to decide a constitutional question based on the doctrine of separation of powers, which enjoins upon the departments of the government a becoming respect for each others acts,[25] this Court nevertheless resolves to take cognizance of the instant petitions.
APPLICABLE CONSTITUTIONAL PROVISION
One focal point of inquiry in this controversy is the determination of which provision of the Constitution applies, with regard to the exercise by the senate of its constitutional power to concur with the VFA. Petitioners argue that Section 25, Article XVIII is applicable considering that the VFA has for its subject the presence of foreign military troops in the Philippines. Respondents, on the contrary, maintain that Section 21, Article VII should apply inasmuch as the VFA is not a basing arrangement but an agreement which involves merely the temporary visits of United States personnel engaged in joint military exercises.
The 1987 Philippine Constitution contains two provisions requiring the concurrence of the Senate on treaties or international agreements. Section 21, Article VII, which herein respondents invoke, reads:
No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.
Section 25, Article XVIII, provides:
After the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.
Section 21, Article VII deals with treatise or international agreements in general, in which case, the concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the subject treaty, or international agreement, valid and binding on the part of the Philippines. This provision lays down the general rule on treatise or international agreements and applies to any form of treaty with a wide variety of subject matter, such as, but not limited to, extradition or tax treatise or those economic in nature. All treaties or international agreements entered into by the Philippines, regardless of subject matter, coverage, or particular designation or appellation, requires the concurrence of the Senate to be valid and effective.
In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the presence of foreign military bases, troops or facilities in the Philippines.Under this provision, the concurrence of the Senate is only one of the requisites to render compliance with the constitutional requirements and to consider the agreement binding on the Philippines. Section 25, Article XVIII further requires that foreign military bases, troops, or facilities may be allowed in the Philippines only by virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so required by Congress, and recognized as such by the other contracting state.
It is our considered view that both constitutional provisions, far from contradicting each other, actually share some common ground. These constitutional provisions both embody phrases in the negative and thus, are deemed prohibitory in mandate and character. In particular, Section 21 opens with the clause No treaty x x x, and Section 25 contains the phrase shall not be allowed. Additionally, in both instances, the concurrence of the Senate is indispensable to render the treaty or international agreement valid and effective.
To our mind, the fact that the President referred the VFA to the Senate under Section 21, Article VII, and that the Senate extended its concurrence under the same provision, is immaterial. For in either case, whether under Section 21, Article VII or Section 25, Article XVIII, the fundamental law is crystalline that the concurrence of the Senate is mandatory to comply with the strict constitutional requirements.
On the whole, the VFA is an agreement which defines the treatment of United States troops and personnel visiting the Philippines. It provides for the guidelines to govern such visits of military personnel, and further defines the rights of the United States and the Philippine government in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of equipment, materials and supplies.
Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops, or facilities, should apply in the instant case. To a certain extent and in a limited sense, however, the provisions of section 21, Article VII will find applicability with regard to the issue and for the sole purpose of determining the number of votes required to obtain the valid concurrence of the Senate, as will be further discussed hereunder.
It is a finely-imbedded principle in statutory construction that a special provision or law prevails over a general one. Lex specialis derogat generali. Thus, where there is in the same statute a particular enactment and also a general one which, in its most comprehensive sense, would include what is embraced in the former, the particular enactment must be operative, and the general enactment must be taken to affect only such cases within its general language which are not within the provision of the particular enactment.[26]
In Leveriza vs. Intermediate Appellate Court,[27] we enunciated:
x x x that another basic principle of statutory construction mandates that general legislation must give way to a special legislation on the same subject, and generally be so interpreted as to embrace only cases in which the special provisions are not applicable (Sto. Domingo vs. de los Angeles, 96 SCRA 139), that a specific statute prevails over a general statute (De Jesus vs. People, 120 SCRA 760) and that where two statutes are of equal theoretical application to a particular case, the one designed therefor specially should prevail (Wil Wilhensen Inc. vs. Baluyot, 83 SCRA 38).
Moreover, it is specious to argue that Section 25, Article XVIII is inapplicable to mere transient agreements for the reason that there is no permanent placing of structure for the establishment of a military base. On this score, the Constitution makes no distinction between transient and permanent. Certainly, we find nothing in Section 25, Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the Philippines.
It is a rudiment in legal hermenuetics that when no distinction is made by law, the Court should not distinguish- Ubi lex non distinguit nec nos distinguire debemos.
In like manner, we do not subscribe to the argument that Section 25, Article XVIII is not controlling since no foreign military bases, but merely foreign troops and facilities, are involved in the VFA. Notably, a perusal of said constitutional provision reveals that the proscription covers foreign military bases, troops, or facilities. Stated differently, this prohibition is not limited to the entry of troops and facilities without any foreign bases being established. The clause does not refer to foreign military bases, troops, or facilitiescollectively but treats them as separate and independent subjects. The use of comma and the disjunctive word or clearly signifies disassociation and independence of one thing from the others included in the enumeration,[28] such that, the provision contemplates three different situations - a military treaty the subject of which could be either (a) foreign bases, (b) foreign troops, or (c) foreign facilities - any of the three standing alone places it under the coverage of Section 25, Article XVIII.
To this end, the intention of the framers of the Charter, as manifested during the deliberations of the 1986 Constitutional Commission, is consistent with this interpretation:
MR. MAAMBONG. I just want to address a question or two to Commissioner Bernas.
This formulation speaks of three things: foreign military bases, troops or facilities. My first question is: If the country does enter into such kind of a treaty, must it cover the three-bases, troops or facilities-or could the treaty entered into cover only one or two?
FR. BERNAS. Definitely, it can cover only one. Whether it covers only one or it covers three, the requirement will be the same.
MR. MAAMBONG. In other words, the Philippine government can enter into a treaty covering not bases but merely troops?
FR. BERNAS. Yes.
MR. MAAMBONG. I cannot find any reason why the government can enter into a treaty covering only troops.
FR. BERNAS. Why not? Probably if we stretch our imagination a little bit more, we will find some. We just want to cover everything.[29] (Underscoring Supplied)
Moreover, military bases established within the territory of another state is no longer viable because of the alternatives offered by new means and weapons of warfare such as nuclear weapons, guided missiles as well as huge sea vessels that can stay afloat in the sea even for months and years without returning to their home country. These military warships are actually used as substitutes for a land-home base not only of military aircraft but also of military personnel and facilities. Besides, vessels are mobile as compared to a land-based military headquarters.
At this juncture, we shall then resolve the issue of whether or not the requirements of Section 25 were complied with when the Senate gave its concurrence to the VFA.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the following conditions are sufficiently met, viz: (a) it must be under atreaty; (b) the treaty must be duly concurred in by the Senate and, when so required by congress, ratified by a majority of the votes cast by the people in a national referendum; and (c) recognized as a treaty by the other contracting state.
There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence handed by the Senate through Resolution No. 18 is in accordance with the provisions of the Constitution, whether under the general requirement in Section 21, Article VII, or the specific mandate mentioned in Section 25, Article XVIII, the provision in the latter article requiring ratification by a majority of the votes cast in a national referendum being unnecessary since Congress has not required it.
As to the matter of voting, Section 21, Article VII particularly requires that a treaty or international agreement, to be valid and effective, must be concurred in by at least two-thirds of all the members of the Senate. On the other hand, Section 25, Article XVIII simply provides that the treaty be duly concurred in by the Senate.
Applying the foregoing constitutional provisions, a two-thirds vote of all the members of the Senate is clearly required so that the concurrence contemplated by law may be validly obtained and deemed present. While it is true that Section 25, Article XVIII requires, among other things, that the treaty-the VFA, in the instant case-be duly concurred in by the Senate, it is very true however that said provision must be related and viewed in light of the clear mandate embodied in Section 21, Article VII, which in more specific terms, requires that the concurrence of a treaty, or international agreement, be made by a two -thirds vote of all the members of the Senate. Indeed, Section 25, Article XVIII must not be treated in isolation to section 21, Article, VII.
As noted, the concurrence requirement under Section 25, Article XVIII must be construed in relation to the provisions of Section 21, Article VII. In a more particular language, the
concurrence of the Senate contemplated under Section 25, Article XVIII means that at least two-thirds of all the members of the Senate favorably vote to concur with the treaty-the VFA in the instant case.
Under these circumstances, the charter provides that the Senate shall be composed of twenty-four (24) Senators.[30] Without a tinge of doubt, two-thirds (2/3) of this figure, or not less than sixteen (16) members, favorably acting on the proposal is an unquestionable compliance with the requisite number of votes mentioned in Section 21 of Article VII. The fact that there were actually twenty-three (23) incumbent Senators at the time the voting was made, [31] will not alter in any significant way the circumstance that more than two-thirds of the members of the Senate concurred with the proposed VFA, even if the two-thirds vote requirement is based on this figure of actual members (23). In this regard, the fundamental law is clear that two-thirds of the 24 Senators, or at least 16 favorable votes, suffice so as to render compliance with the strict constitutional mandate of giving concurrence to the subject treaty.
Having resolved that the first two requisites prescribed in Section 25, Article XVIII are present, we shall now pass upon and delve on the requirement that the VFA should be recognized as a treaty by the United States of America.
Petitioners content that the phrase recognized as a treaty, embodied in section 25, Article XVIII, means that the VFA should have the advice and consent of the United States Senate pursuant to its own constitutional process, and that it should not be considered merely an executive agreement by the United States.
In opposition, respondents argue that the letter of United States Ambassador Hubbard stating that the VFA is binding on the United States Government is conclusive, on the point that the VFA is recognized as a treaty by the United States of America. According to respondents, the VFA, to be binding, must only be accepted as a treaty by the United States.
This Court is of the firm view that the phrase recognized as a treaty means that the other contracting party accepts or acknowledges the agreement as a treaty.[32] To require the other contracting state, the United States of America in this case, to submit the VFA to the United States Senate for concurrence pursuant to its Constitution,[33] is to accord strict meaning to the phrase.
Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning except where technical terms are employed, in which case the significance thus attached to them prevails. Its language should be understood in the sense they have in common use.[34]
Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty.[35] To be sure, as long as the VFA possesses the elements of an agreement under international law, the said agreement is to be taken equally as a treaty.
A treaty, as defined by the Vienna Convention on the Law of Treaties, is an international instrument concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments, and whatever its particular designation.[36] There are many other terms used for a treaty or international agreement, some of which are: act, protocol, agreement, compromis d arbitrage, concordat, convention, declaration, exchange of notes, pact, statute, charter andmodus vivendi. All writers, from Hugo Grotius onward, have pointed out that the names or titles of international agreements included under the general term treaty have little or no legal significance. Certain terms are useful, but they furnish little more than mere description.[37]
Article 2(2) of the Vienna Convention provides that the provisions of paragraph 1 regarding the use of terms in the present Convention are without prejudice to the use of those terms, or to the meanings which may be given to them in the internal law of the State.
Thus, in international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned, as long as the negotiating functionaries have remained within their powers.[38] International law continues to make no distinction between treaties and executive agreements: they are equally binding obligations upon nations.[39]
In our jurisdiction, we have recognized the binding effect of executive agreements even without the concurrence of the Senate or Congress. In Commissioner of Customs vs. Eastern Sea Trading,[40] we had occasion to pronounce:
x x x the right of the Executive to enter into binding agreements without the necessity of subsequent congressional approval has been confirmed by long usage. From the earliest days of our history we have entered into executive agreements covering such subjects as commercial and consular relations, most-favored-nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims. The validity of these has never been seriously questioned by our courts.
x x x x x x x x x
Furthermore, the United States Supreme Court has expressly recognized the validity and constitutionality of executive agreements entered into without Senate approval. (39 Columbia Law Review, pp. 753-754) (See, also, U.S. vs. Curtis Wright Export Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L. ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S. 188 F. 2d. 288; Yale Law Journal, Vol. 15 pp. 1905-1906; California Law Review, Vol. 25, pp. 670-675; Hyde on International Law [revised Edition], Vol. 2, pp. 1405, 1416-1418; willoughby on the U.S. Constitution Law, Vol. I [2d ed.], pp. 537-540; Moore, International Law Digest, Vol. V, pp. 210-218; Hackworth, International Law Digest, Vol. V, pp. 390-407). (Italics Supplied) (Emphasis Ours)
The deliberations of the Constitutional Commission which drafted the 1987 Constitution is enlightening and highly-instructive:
MR. MAAMBONG. Of course it goes without saying that as far as ratification of the other state is concerned, that is entirely their concern under their own laws.
FR. BERNAS. Yes, but we will accept whatever they say. If they say that we have done everything to make it a treaty, then as far as we are concerned, we will accept it as a treaty.[41]
The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has stated that the United States government has fully committed to living up to the terms of the VFA.[42] For as long as the united States of America accepts or acknowledges the VFA as a treaty, and binds itself further to comply with its obligations under the treaty, there is indeed marked compliance with the mandate of the Constitution.
Worth stressing too, is that the ratification, by the President, of the VFA and the concurrence of the Senate should be taken as a clear an unequivocal expression of our nations consent to be bound by said treaty, with the concomitant duty to uphold the obligations and responsibilities embodied thereunder.
Ratification is generally held to be an executive act, undertaken by the head of the state or of the government, as the case may be, through which the formal acceptance of the treaty is proclaimed.[43] A State may provide in its domestic legislation the process of ratification of a treaty. The consent of the State to be bound by a treaty is expressed by ratification when: (a) the treaty provides for such ratification, (b) it is otherwise established that the negotiating States agreed that ratification should be required, (c) the representative of the State has signed the treaty subject to ratification, or (d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative, or was expressed during the negotiation.[44]
In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification.[45]
With the ratification of the VFA, which is equivalent to final acceptance, and with the exchange of notes between the Philippines and the United States of America, it now becomes obligatory and incumbent on our part, under the principles of international law, to be bound by the terms of the agreement. Thus, no less than Section 2, Article II of the Constitution,[46] declares that the Philippines adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.
As a member of the family of nations, the Philippines agrees to be bound by generally accepted rules for the conduct of its international relations. While the international obligation devolves upon the state and not upon any particular branch, institution, or individual member of its government, the Philippines is nonetheless responsible for violations committed by any branch or subdivision of its government or any official thereof. As an integral part of the community of nations, we are responsible to assure that our government, Constitution and laws will carry out our international obligation.[47] Hence, we cannot readily plead the Constitution as a convenient excuse for non-compliance with our obligations, duties and responsibilities under international law.
Beyond this, Article 13 of the Declaration of Rights and Duties of States adopted by the International Law Commission in 1949 provides: Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.[48]
Equally important is Article 26 of the convention which provides that Every treaty in force is binding upon the parties to it and must be performed by them in good faith. This is known as the principle of pacta sunt servanda which preserves the sanctity of treaties and have been one of the most fundamental principles of positive international law, supported by the jurisprudence of international tribunals.[49]
NO GRAVE ABUSE OF DISCRETION
In the instant controversy, the President, in effect, is heavily faulted for exercising a power and performing a task conferred upon him by the Constitution-the power to enter into and ratify treaties. Through the expediency of Rule 65 of the Rules of Court, petitioners in these consolidated cases impute grave abuse of discretion on the part of the chief Executive in ratifying the VFA, and referring the same to the Senate pursuant to the provisions of Section 21, Article VII of the Constitution.
On this particular matter, grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty enjoined or to act at all in contemplation of law.[50]
By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole organ and authority in the external affairs of the country. In many ways, the President is the chief architect of the nations foreign policy; his dominance in the field of foreign relations is (then) conceded.[51] Wielding vast powers an influence, his conduct in the external affairs of the nation, as Jefferson describes, is executive altogether."[52]
As regards the power to enter into treaties or international agreements, the Constitution vests the same in the President, subject only to the concurrence of at least two-thirds vote of all the members of the Senate. In this light, the negotiation of the VFA and the subsequent ratification of the agreement are exclusive acts which pertain solely to the President, in the lawful exercise of his vast executive and diplomatic powers granted him no less than by the fundamental law itself. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.[53] Consequently, the acts or judgment calls of the President involving the VFA-specifically the acts of ratification and entering into a treaty and those necessary or incidental to the exercise of such principal acts - squarely fall within the sphere of his constitutional powers and thus, may not be validly struck down, much less calibrated by this Court, in the absence of clear showing of grave abuse of power or discretion.
It is the Courts considered view that the President, in ratifying the VFA and in submitting the same to the Senate for concurrence, acted within the confines and limits of the powers vested in him by the Constitution. It is of no moment that the President, in the exercise of his wide latitude of discretion and in the honest belief that the VFA falls within the ambit of Section 21, Article VII of the Constitution, referred the VFA to the Senate for concurrence under the aforementioned provision. Certainly, no abuse of discretion, much less a grave, patent and whimsical abuse of judgment, may be imputed to the President in his act of ratifying the VFA and referring the same to the Senate for the purpose of complying with the concurrence requirement embodied in the fundamental law. In doing so, the President merely performed a constitutional task and exercised a prerogative that chiefly pertains to the functions of his office. Even if he erred in submitting the VFA to the Senate for concurrence under the provisions of Section 21 of Article VII, instead of Section 25 of Article XVIII of the Constitution, still, the President may not be faulted or scarred, much less be adjudged guilty of committing an abuse of discretion in some patent, gross, and capricious manner.
For while it is conceded that Article VIII, Section 1, of the Constitution has broadened the scope of judicial inquiry into areas normally left to the political departments to decide, such as those relating to national security, it has not altogether done away with political questions such as those which arise in the field of foreign relations.[54] The High Tribunals function, as sanctioned by Article VIII, Section 1, is merely (to) check whether or not the governmental branch or agency has gone beyond the constitutional limits of its jurisdiction, not that it erred or has a different view. In the absence of a showing (of) grave abuse of discretion amounting to lack of jurisdiction, there is no occasion for the Court to exercise its corrective powerIt has no power to look into what it thinks is apparent error.[55]
As to the power to concur with treaties, the constitution lodges the same with the Senate alone. Thus, once the Senate[56] performs that power, or exercises its prerogative within the boundaries prescribed by the Constitution, the concurrence cannot, in like manner, be viewed to constitute an abuse of power, much less grave abuse thereof.Corollarily, the Senate, in the
exercise of its discretion and acting within the limits of such power, may not be similarly faulted for having simply performed a task conferred and sanctioned by no less than the fundamental law.
For the role of the Senate in relation to treaties is essentially legislative in character; [57] the Senate, as an independent body possessed of its own erudite mind, has the prerogative to either accept or reject the proposed agreement, and whatever action it takes in the exercise of its wide latitude of discretion, pertains to the wisdom rather than the legality of the act. In this sense, the Senate partakes a principal, yet delicate, role in keeping the principles of separation of powers and of checks and balances alive and vigilantly ensures that these cherished rudiments remain true to their form in a democratic government such as ours. The Constitution thus animates, through this treaty-concurring power of the Senate, a healthy system of checks and balances indispensable toward our nations pursuit of political maturity and growth. True enough, rudimentary is the principle that matters pertaining to the wisdom of a legislative act are beyond the ambit and province of the courts to inquire.
In fine, absent any clear showing of grave abuse of discretion on the part of respondents, this Court- as the final arbiter of legal controversies and staunch sentinel of the rights of the people - is then without power to conduct an incursion and meddle with such affairs purely executive and legislative in character and nature. For the Constitution no less, maps out the distinct boundaries and limits the metes and bounds within which each of the three political branches of government may exercise the powers exclusively and essentially conferred to it by law.
WHEREFORE, in light of the foregoing disquisitions, the instant petitions are hereby DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Kapunan, Quisumbing, Purisima, Pardo, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Melo, and Vitug, JJ., join the dissent of J. Puno.Puno, J., see dissenting opinion.Mendoza, J., in the result.Panganiban, J., no part due to close personal and former professional relations with a
petitioner, Sen. J.R. Salonga.
[1] Article V. Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of the United Nations. Such measures shall be terminated when the Security Council has taken the measure necessary to restore and maintain international peace and security.[2] Joint Report of the Senate Committee on Foreign Relation and the Committee on National Defense and Security on the Visiting Forces Agreement.[3] Joint Committee Report.[4] Petition, G.R. No. 138698, Annex B, Rollo, pp. 61-62.
INSTRUMENT OF RATIFICATION
TO ALL TO WHOM THESE PRESENTS SHALL COME, GREETINGS:
KNOW YE, that whereas, the Agreement between the government of the Republic of the Philippines and the Government of the United States of America Regarding the Treatment of the United States Armed Forces Visiting the Philippines, hereinafter referred to as VFA, was signed in Manila on 10 February 1998;
WHEREAS, the VFA is essentially a framework to promote bilateral defense cooperation between the Republic of the Philippines and the United States of America and to give substance to the 1951 RP-US Mutual Defense Treaty (RP-US MDT). To fulfill the objectives of the RP-US MDT, it is necessary that regular joint military exercises are conducted between the Republic of the Philippines and the United States of America;
WHEREAS, the VFA seeks to provide a conducive setting for the successful conduct of combined military exercises between the Philippines and the United States armed forces to ensure interoperability of the RP-US MDT;
WHEREAS, in particular, the VFA provides the mechanism for regulating the circumstances and conditions under which US armed forces and defense personnel may be present in the Philippines such as the following inter alia:
(a) specific requirements to facilitate the admission of United States personnel and their departure from the Philippines in connection with activities covered by the agreement;
(b) clear guidelines on the prosecution of offenses committed by any member of the United States armed forces while in the Philippines;
(c) precise directive on the importation and exportation of United States Government equipment, materials, supplies and other property imported into or acquired in the Philippines by or on behalf of the United States armed forces in connection with activities covered by the Agreement; and
(d) explicit regulations on the entry of United States vessels, aircraft, and vehicles;
WHEREAS, Article IX of the Agreement provides that it shall enter into force on the date on which the Parties have notified each other in writing, through diplomatic channels, that they have completed their constitutional requirements for its entry into force. It shall remain in force until the expiration of 180 days from the date on which either Party gives the other Party written notice to terminate the Agreement.
NOW, THEREFORE, be it known that I, JOSEPH EJERCITO ESTRADA, President of the Republic of the Philippines, after having seen and considered the aforementioned Agreement between the Government of the United States of America Regarding the Treatment of the United States Armed Forces Visiting the Philippines, do hereby ratify and confirm the same and each and every Article and Clause thereof.
IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed.
GIVEN under my hand at the City of Manila, this 5th day of October, in the year of Our Lord one thousand nine hundred and ninety-eight.[5] Petition, G.R. No. 138587, Annex C, Rollo, p. 59.
The Honorable Senate President andMember of the SenateSenate of the PhilippinesPasay City
Gentlemen and Ladies of the Senate:
I have the honor to transmit herewith the Instrument of Ratification duly signed by H.E. President Joseph Ejercito Estrada, his message to the Senate and a draft Senate Resolution of Concurrence in connection with the ratification of the AGREEMENT BETWEEN THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA REGARDING THE TREATMENT OF THE UNITED STATES ARMED FORCES VISITING THE PHILIPPINES.
With best wishes.
Very truly yours,
RONALDO B. ZAMORA
Executive Secretary[6] Petition, G.R. No. 138698, Annex C.[7] Between January 26 and March 11, 1999, the two Committees jointly held six public hearings-three in Manila and one each in General Santos, Angeles City and Cebu City.[8] Petition , G.R. No. 138570, Annex C, Rollo, pp. 88-95.
WHEREAS, the VFA is essentially a framework for promoting the common security interest of the two countries; and for strengthening their bilateral defense partnership under the 1951 RP-US Mutual Defense Treaty;
x x x x x x x x x
WHEREAS, the VFA does not give unrestricted access or unhampered movement to US Forces in the Philippines; in fact, it recognizes the Philippine government as the sole authority to approve the conduct of any visit or activity in the country by US Forces, hence the VFA is not a derogation of Philippine sovereignty;
WHEREAS, the VFA is not a basing arrangement; neither does it pave way for the restoration of the American bases and facilities in the Philippines, in contravention of the prohibition against foreign bases and permanent stationing of foreign troops under Article XVIII, Section 25 of the 1987 Constitution-because the agreement envisions only temporary visits of US personnel engaged in joint military exercises or other activities as may be approved by the Philippine Government;
WHEREAS, the VFA gives Philippine courts primary jurisdiction over offenses that may be committed by US personnel within Philippine territory, with the exception of those incurred solely against the security or property of the Us or solely against the person or property of US personnel, and those committed in the performance of official duty;
x x x x x x x x x
WHEREAS, by virtue of Article II of the VFA, the United States commits to respect the laws of the Republic of the Philippines, including the Constitution, which declares in Article II, Section 8 thereof, a policy of freedom from nuclear weapons consistent with the national interest;
WHEREAS, the VFA shall serve as the legal mechanism to promote defense cooperation between two countries-enhancing the preparedness of the Armed Forces of the Philippines against external threats; and enabling the Philippines to bolster the stability of the Pacific area in a shared effort with its neighbor-states;
WHEREAS, the VFA will enhance our political, economic and security partnership and cooperation with the United States-which has helped promote the development of our country and improved the lives of our people;
WHEREAS, in accordance with the powers and functions of Senate as mandated by the Constitution, this Chamber, after holding several public hearings and deliberations, concurs in the Presidents ratification of the VFA, for the following reasons:
(1) The Agreement will provide the legal mechanism to promote defense cooperation between the Philippines and the U.S. and thus enhance the tactical, strategic, and technological capabilities of our armed forces;
(2) The Agreement will govern the treatment of U.S., military and defense personnel within Philippine territory, while they are engaged in activities covered by the Mutual Defense Treaty and conducted with the prior approval of the Philippine government; and
(3) The Agreement will provide the regulatory mechanism for the circumstances and conditions under which U.S. military forces may visit the Philippines; x x x
x x x x x x x x x
WHEREAS, in accordance with Article IX of the VFA, the Philippine government reserves the right to terminate the agreement unilaterally once it no longer redounds to our national interest: Now, therefore, be it
Resolved, that the Senate concur, as it hereby concurs, in the Ratification of the Agreement between the Government of the Republic of the Philippines and the United States of America Regarding the Treatment of United States Armed Forces visiting the Philippines. x x x
[9] The following voted for concurrence: (1) Senate President Marcelo Fernan, (2) Senate President Pro Tempore Blas Ople, (3) Senator Franklin Drilon, (4) Senator Rodolfo Biazon, (5) Senator Francisco Tatad, (6) Senator Renato Cayetano, (7) Senator Teresa Aquino-Oreta, (8) Senator Robert Barbers, (9) Senator Robert Jaworski, (10) Senator Ramon Magsaysay, Jr., (11) Senator John Osmea, (12) Senator Juan Flavier, (13) Senator Mirriam Defensor-Santiago, (14) Senator Juan Ponce-Enrile, (15) Senator Vicente Sotto III, (16) Senator Ramon Revilla, (17) Senator Anna Dominique Coseteng, and (18) Senator Gregorio Honasan.
Only the following voted to reject the ratification of the VFA: (1) Senator Teofisto Guingona, Jr., (2) Senator Raul Roco, (3) Senator Sergio Osmena III, (4) Senator Aquilino Pimentel, Jr., and (5) Senator Loren Legarda-Leviste.[10] See Petition, G.R. No. 138570, Rollo, pp. 105.[11] Minute Resolution dated June 8, 1999.[12] See Consolidated Comment.[13] Reply to Consolidated Comment, G.R. No. 138698; G.R. No. 138587.[14] Valmonte vs. Philippine Charity Sweepstakes Office, (Res.) G.R. No. 78716, September 22, 1987, cited in Telecommunications and Broadcast Attorneys of the Philippines, Inc. vs. COMELEC, 289 SCRA 337, 343 [1998]; Valley Forge College vs. Americans United, 454 US 464, 70 L. Ed. 2d 700 [1982]; Bugnay Const. And Dev. Corp. vs. Laron, 176 SCRA 240, 251-252 [1989]; Tatad vs. Garcia, Jr. 243 SCRA 436, 473 [1995].[15] See Article VI, Sections 24, 25 and 29 of the 1987 Constitution.
[16] Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]; Maceda vs. Macaraig, 197 SCRA 771 [1991]; Lozada vs. COMELEC, 120 SCRA 337 [1983]; Dumlao vs. COMELEC, 95 SCRA 392 [1980]; Gonzales vs. Marcos, 65 SCRA 624 [1975].[17] 176 SCRA 240, 251-252 [1989].[18] 235 SCRA 506 [1994].[19] Consolidated Memorandum, p. 11.[20] Araneta vs. Dinglasan, 84 Phil. 368 [1949]; Iloilo Palay & Corn Planters Association vs. Feliciano, 121 Phil. 358 [1965]; Philippine Constitution Association vs. Gimenez, 122 Phil. 894 [1965].[21] 21 SCRA 774 [1967].[22] 180 SCRA 496, 502 [1988] cited in Kilosbayan, Inc. vs. Guingona, Jr., 232 SCRA 110 [1994].[23] 197 SCRA 52, 60 [1991].[24] 232 SCRA 110 [1994].[25] J. Santos vs. Northwest Orient Airlines, 210 SCRA 256, 261 [1992].[26] Manila Railroad Co. vs. Collector of Customs, 52 Phil. 950.[27] 157 SCRA 282 [1988] cited in Republic vs. Sandiganbayan, 173 SCRA 72, 85 [1989].[28] Castillo-co v. Barbers, 290 SCRA 717, 723 (1998).[29] Records of the Constitutional Commission, September 18, 1986 Deliberation, p. 782.[30] 1987 Constitution, Article VI, Section 2. - the Senate shall be composed of twenty-four Senators who shall be elected at large by the qualified voters of the Philippines, as may be provided by law.[31] The 24th member (Gloria Macapagal-Arroyo) of the Senate whose term was to expire in 2001 was elected Vice-President in the 1998 national elections.[32] Ballentines Legal Dictionary, 1995.[33] Article 2, Section 2, paragraph 2 of the United States Constitution, speaking of the United States President provides: He shall have power, by and with the advice and consent of the Senate to make treaties, provided two-thirds of the senators present concur.[34] J.M. Tuason & Co., Inc. vs. Land Tenure Association, 31 SCRA 413 [1970].[35] Altman Co. vs. United States, 224 US 263 [1942], cited in Coquia and Defensor-Santiago, International Law, 1998 Ed. P. 497.[36] Vienna Convention, Article 2.[37] Gerhard von Glahn, Law among Nations, an Introduction to Public International Law, 4th Ed., p. 480.[38] Hackworth, Digest of International Law, Vol. 5, p. 395, cited in USAFE Veterans Association Inc. vs. Treasurer of the Philippines, 105 Phil. 1030, 1037 [1959].[39] Richard J. Erickson, The Making of Executive Agreements by the United States Department of Defense: An agenda for Progress, 13 Boston U. Intl. L.J. 58 [1995], citing Restatement [third] of Foreign Relations Law pt. III, introductory note [1987] and Paul Reuter, Introduction to the
Law of Treaties 22 [Jose Mico & Peter Haggemacher trans., 1989] cited in Consolidated Memorandum, p. 32.[40] 3 SCRA 351, 356-357 [1961].[41] 4 Record of the Constitutional Commission 782 [Session of September 18, 1986].[42] Letter of Ambassador Hubbard to Senator Miriam Defensor-Santiago:
Dear Senator Santiago:
I am happy to respond to your letter of April 29, concerning the way the US Government views the Philippine-US Visiting Forces Agreement in US legal terms. You raise an important question and I believe this response will help in the Senate deliberations.
As a matter of both US and international law, an international agreement like the Visiting Forces Agreement is legally binding on the US Government, In international legal terms, such an agreement is a treaty.However, as a matter of US domestic law, an agreement like the VFA is an executive agreement, because it does not require the advice and consent of the senate under Article II, section 2 of our Constitution.
The Presidents power to conclude the VFA with the Philippines, and other status of forces agreements with the other countries, derives from the Presidents responsibilities for the conduct of foreign relations (Art. II, Sec. 1) and his constitutional powers as Commander in Chief of the Armed Forces. Senate advice and consent is not needed, inter alia, because the VFA and similar agreements neither change US domestic nor require congressional appropriation of funds. It is important to note that only about five percent of the international agreement entered into by the US Governments require Senate advice and consent. However, in terms of the US Governments obligation to adhere to the terms of the VFA, there is no difference between a treaty concurred in by our Senate and an executive agreement. Background information on these points can be found in the Restatement 3rd of the Foreign Relations Law of the United States, Sec. 301, et seq. [1986].
I hope you find this answer helpful. As the Presidents representative to the Government of the Philippines, I can assure you that the United States Government is fully committed to living up to the terms of the VFA.
Sincerely yours,
THOMAS C. HUBBARD
Ambassador
Bayan v. Zamora, G.R. No. 138570, October 10, 2000
D E C I S I O N(En Banc)
BUENA, J.:
I. THE FACTS
The Republic of the Philippines and the United States of America entered into an agreement called the Visiting Forces Agreement (VFA). The agreement was treated as a treaty by the Philippine government and was ratified by then-President Joseph Estrada with the concurrence of 2/3 of the total membership of the Philippine Senate.
The VFA defines the treatment of U.S. troops and personnel visiting the Philippines. It provides for the guidelines to govern such visits, and further defines the rights of the U.S. and the Philippine governments in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of equipment, materials and supplies.
Petitioners argued, inter alia, that the VFA violates §25, Article XVIII of the 1987 Constitution, which provides that “foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate . . . and recognized as a treaty by the other contracting State.”
II. THE ISSUE
Was the VFA unconstitutional?
III. THE RULING
[The Court DISMISSED the consolidated petitions, held that the petitioners did not commit grave abuse of discretion, and sustained the constitutionality of the VFA.]
NO, the VFA is not unconstitutional.
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be duly concurred in by the Senate and, when so required by congress, ratified by a majority of the votes cast by the people in a national referendum; and (c) recognized as a treaty by the other contracting state.
There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence handed by the Senate through Resolution No. 18 is in accordance with the provisions of the Constitution . . . the provision in [in §25, Article XVIII] requiring ratification by a majority of the votes cast in a national referendum being unnecessary since Congress has not required it.
xxx xxx xxx
This Court is of the firm view that the phrase “recognized as a treaty” means that the other contracting party accepts or acknowledges the agreement as a treaty. To require the other contracting state, the United States of America in this case, to submit the VFA to the United States Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase.
Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning except where technical terms are employed, in which case the significance thus attached to them prevails. Its language should be understood in the sense they have in common use.
Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty. To be sure, as long as the VFA possesses the elements of an agreement under international law, the said agreement is to be taken equally as a treaty.
xxx xxx xxx
The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has stated that the United States government has fully committed to living up to the terms of the VFA. For as long as the United States of America accepts or acknowledges the VFA as a treaty, and binds itself further to comply with its obligations under the treaty, there is indeed marked compliance with the mandate of the Constitution.
BAYAN v. ZAMORA
October 26, 2012 § Leave a comment
BAYAN v. ZAMORAG. R. No. 138570October 10, 2000
Facts:The United States panel met with the Philippine panel to discussed, among others, the possible elements of the Visiting Forces Agreement (VFA). This resulted to a series of conferences and negotiations which culminated on January 12 and 13, 1998. Thereafter, President Fidel Ramos approved the VFA, which was respectively signed by Secretary Siazon and United States Ambassador Thomas Hubbard.
Pres. Joseph Estrada ratified the VFA on October 5, 1998 and on May 27, 1999, the senate approved it by (2/3) votes.
Cause of Action:
Petitioners, among others, assert that Sec. 25, Art XVIII of the 1987 constitution is applicable and not Section 21, Article VII.
Following the argument of the petitioner, under they provision cited, the “foreign military bases, troops, or facilities” may be allowed in the Philippines unless the following conditions are sufficiently met:a) it must be a treaty,b) it must be duly concurred in by the senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so required by congress, andc) recognized as such by the other contracting state.
Respondents, on the other hand, argue that Section 21 Article VII is applicable so that, what is requires for such treaty to be valid and effective is the concurrence in by at least two-thirds of all the members of the senate.
ISSUE: Is the VFA governed by the provisions of Section 21, Art VII or of Section 25, Article XVIII of the Constitution?
HELD:Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops or facilities should apply in the instant case. To a certain extent and in a limited sense, however, the provisions of section 21, Article VII will find applicability with regard to the issue and for the sole purpose of determining the number of votes required to obtain the valid concurrence of the senate.
The Constitution, makes no distinction between “transient” and “permanent.” We find nothing in section 25, Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the Philippines.
It is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty.
Bayan v Zamora (Public International Law)
BAYAN (Bagong Alyansang Makabayan), a JUNK VFA MOVEMENT v EXECUTIVE SECRETARY RONALDO ZAMORA G.R. No. 138570 October 10, 2000
FACTS:
The Philippines and the United States entered into a Mutual Defense Treaty on August 30, 1951, To further strengthen their defense and security relationship. Under the treaty, the parties agreed to respond to any external armed attack on their territory, armed forces, public vessels, and aircraft.
On September 16, 1991, the Philippine Senate rejected the proposed RP-US Treaty of Friendship, Cooperation and Security which, in effect, would have extended the presence of US military bases in the Philippines.
On July 18, 1997 RP and US exchanged notes and discussed, among other things, the possible elements of the Visiting Forces Agreement (VFA).This resulted to a series of conferences and negotiations which culminated on January 12 and 13, 1998. Thereafter, President Fidel Ramos approved the VFA, which was respectively signed by Secretary Siazon and United States Ambassador Thomas Hubbard.
On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign Affairs, ratified the VFA. On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo Zamora, officially transmitted to the Senate of the Philippines,the Instrument of Ratification, the letter of the President and the VFA, for concurrence pursuant to Section 21, Article VII of the 1987 Constitution.
Petitions for certiorari and prohibition, petitioners – as legislators, non-governmental organizations, citizens and taxpayers – assail the constitutionality of the VFA and impute to herein respondents grave abuse of discretion in ratifying the agreement.
Petitioner contends, under they provision cited, the “foreign military bases, troops, or facilities” may be allowed in the Philippines unless the following conditions are sufficiently met: a) it must be a treaty,b) it must be duly concurred in by the senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so required by congress, and c) recognized as such by the other contracting state.
Respondents, on the other hand, argue that Section 21 Article VII is applicable so that, what is requires for such treaty to be valid and effective is the concurrence in by at least two-thirds of all the members of the senate.
ISSUES AND RULING:
1. Issue 1: Do the Petitioners have legal standing as concerned citizens, taxpayers, or legislators to question the constitutionality of the VFA?
NO. Petitioners Bayan Muna, etc. have no standing. A party bringing a suit challenging the Constitutionality of a law must show not only that the law is invalid, but that he has sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. Petitioners have failed to show that they are in any danger of direct injury as a result of the VFA.
As taxpayers, they have failed to establish that the VFA involves the exercise by Congress of its taxing or spending powers. A taxpayer's suit refers to a case where the act complained of directly involves the illegal disbursement of public funds derived from taxation. Before he can invoke the power of judicial review, he must specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by taxation and that he will sustain a direct injury as a result of the enforcement of the questioned statute or contract. It is not sufficient that he has merely a general interest common to all members of the public. Clearly, inasmuch as no public funds raised by taxation are involved in this case, and in the absence of any allegation by petitioners that public funds are being misspent or illegally expended, petitioners, as taxpayers, have no legal standing to assail the legality of the VFA.
Similarly, the petitioner-legislators (Tanada, Arroyo, etc.) do not possess the requisite locus standi to sue. In the absence of a clear showing of any direct injury to their person or to the institution to which they belong, they cannot sue. The Integrated Bar of the Philippines (IBP) is also stripped of standing in these cases. The IBP lacks the legal capacity to bring this suit in the absence of a board resolution from its Board of Governors authorizing its National President to commence the present action.
Notwithstanding, in view of the paramount importance and the constitutional significance of the issues raised, the Court may brush aside the procedural barrier and takes cognizance of the petitions.
2. Issue 2: Is the VFA governed by section 21, Art. VII, or section 25, Art. XVIII of the Constitution?
Section 25, Art XVIII, not section 21, Art. VII, applies, as the VFA involves the presence of foreign military troops in the Philippines.
The Constitution contains two provisions requiring the concurrence of the Senate on treaties or international agreements.
Section 21, Article VII reads: “[n]o treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.”
Section 25, Article XVIII, provides:”[a]fter the expiration in 1991 of the Agreement between the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other contracting State.”
Section 21, Article VII deals with treaties or international agreements in general, in which case, the concurrence of at least two-thirds (2/3) of all the Members of the Senate is required to make the treaty valid and binding to the Philippines. This provision lays down the general rule on treaties. All treaties, regardless of subject matter, coverage, or particular designation or appellation, requires the concurrence of the Senate to be valid and effective. In contrast, Section 25, Article XVIII is a special provision that applies to treaties which involve the presence of foreign military bases, troops or facilities in the Philippines. Under this provision, the concurrence of the Senate is only one of the requisites to render compliance with the constitutional requirements and to consider the agreement binding on the Philippines. Sec 25 further requires that “foreign military bases, troops, or facilities” may be allowed in the Philippines only by virtue of a treaty duly concurred in by the Senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so required by Congress, and recognized as such by the other contracting state.
On the whole, the VFA is an agreement which defines the treatment of US troops visiting the Philippines. It provides for the guidelines to govern such visits of military personnel, and further defines the rights of the US and RP government in the matter of criminal jurisdiction, movement of vessel and aircraft, import and export of equipment, materials and supplies. Undoubtedly, Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops, or facilities, should apply in the instant case. To a certain extent, however, the provisions of Section 21, Article VII will find applicability with regard to determining the number of votes required to obtain the valid concurrence of the Senate.
It is specious to argue that Section 25, Article XVIII is inapplicable to mere transient agreements for the reason that there is no permanent placing of structure for the establishment of a military base. The Constitution makes no distinction between “transient” and “permanent”. We find nothing in Section 25, Article XVIII that requires foreign troops or facilities to be stationed or placed permanently in the Philippines. When no distinction is made by law; the Court should not distinguish. We do not subscribe to the argument that Section 25, Article XVIII is not controlling since no foreign military bases, but merely foreign troops and facilities, are involved in the VFA. The proscription covers “foreign military bases, troops, or facilities.” Stated differently, this prohibition is not limited to the entry of troops and facilities without any foreign bases being established. The clause does not refer to “foreign military bases, troops, or facilities” collectively but treats them as separate and
independent subjects, such that three different situations are contemplated — a military treaty the subject of which could be either (a) foreign bases, (b) foreign troops, or (c) foreign facilities — any of the three standing alone places it under the coverage of Section 25, Article XVIII.
3. Issue 3: Was Sec 25 Art XVIII's requisites satisfied to make the VFA effective?
YES
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the following conditions are sufficiently met:(a) it must be under a treaty;(b) the treaty must be duly concurred in by the Senate and, when so required by Congress, ratified by a majority of the votes cast by the people in a national referendum; and (c) recognized as a treaty by the other contracting state.
There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence handed by the Senate through Resolution No. 18 is in accordance with the Constitution, as there were at least 16 Senators that concurred.
As to condition (c), the Court held that the phrase “recognized as a treaty” means that the other contracting party accepts or acknowledges the agreement as a treaty. To require the US to submit the VFA to the US Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase. Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning except where technical terms are employed, in which case the significance thus attached to them prevails. Its language should be understood in the sense they have in common use.
The records reveal that the US Government, through Ambassador Hubbard, has stated that the US has fully committed to living up to the terms of the VFA. For as long as the US accepts or acknowledges the VFA as a treaty, and binds itself further to comply with its treaty obligations, there is indeed compliance with the mandate of the Constitution.
Worth stressing too, is that the ratification by the President of the VFA, and the concurrence of the Senate, should be taken as a clear and unequivocal expression of our nation's consent to be bound by said treaty, with the concomitant duty to uphold the obligations and responsibilities embodied thereunder. Ratification is generally held to be an executive act, undertaken by the head of the state, through which the formal acceptance of the treaty is proclaimed. A State may provide in its domestic legislation the process of ratification of a treaty. In our jurisdiction, the power to ratify is vested in the President and not, as commonly believed, in the legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification.
With the ratification of the VFA it now becomes obligatory and incumbent on our part, under principles of international law (pacta sunt servanda), to be bound by the
terms of the agreement. Thus, no less than Section 2, Article II declares that the Philippines adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations.
Case Digest: G.R. No. 138570. October 10, 2000. 342 SCRA 449BAYAN (Bagong Alyansang Makabayan), a Junk VFA Movement, Bishop Tomas Millamena (Iglesia Filipina Independiente), Bishop Elmer Bolocan (United Church of Christ of the Phil.), Dr. Reynaldo Legasca, Md, Kilusang Mambubukid Ng Pilipinas, Kilusang Mayo Uno, Gabriela, Prolabor, and The Public Interest Law Center, petitioners, vs. Executive Secretary Ronaldo Zamora, Foreign Affairs Secretary Domingo Siazon, Defense Secretary Orlando Mercado, Brig. Gen. Alexander Aguirre, Senate President Marcelo Fernan, Senator Franklin Drilon, Senator Blas Ople, Senator Rodolfo Biazon, And Senator Francisco Tatad, respondents.
Facts: On March 14, 1947, the Philippines and the United States of America forged a Military Bases Agreement which formalized, among others, the use of installations in the Philippine territory by United States military personnel. In view of the impending expiration of the RP-US Military Bases Agreement in 1991, the Philippines and the United States negotiated for a possible extension of the military bases agreement. On September 16, 1991, the Philippine Senate rejected the proposed RP-US Treaty of Friendship, Cooperation and Security which, in effect, would have extended the presence of US military bases in the Philippines. On July 18, 1997, the United States panel, headed by US Defense Deputy Assistant Secretary for Asia Pacific Kurt Campbell, met with the Philippine panel, headed by Foreign Affairs Undersecretary Rodolfo Severino Jr., to exchange notes on “the complementing strategic interests of the United States and the Philippines in the Asia-Pacific region.” Both sides discussed, among other things, the possible elements of the Visiting Forces Agreement (VFA for brevity). Thereafter, then President Fidel V. Ramos approved the VFA, which was respectively signed by public respondent Secretary Siazon and Unites States Ambassador Thomas Hubbard. On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign Affairs, ratified the VFA. On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo Zamora, officially transmitted to the Senate of the Philippines, the Instrument of Ratification, the letter of the President and the VFA, for concurrence pursuant to Section 21, Article VII of the 1987 Constitution
Issues (justiciable controversy): (1) Whether or not petitioners have legal standing as concerned citizens, taxpayers, or legislators to question the constitutionality of the VFA; (2) whether the VFA is governed by the provisions of Section 21, Article VII or of Section 25, Article XVIII of the Constitution; (3) and whether or not the Supreme Court has jurisdiction.
Ruling: (1) No. Petitioners failed to show that they have sustained, or are in danger of sustaining any direct injury as a result of the enforcement of the VFA. As taxpayers, petitioners have not established that the VFA involves the exercise by Congress of its taxing or spending powers. On this point, it bears stressing that a taxpayer’s suit refers to a case where the act complained of directly involves the illegal disbursement of public funds derived from taxation.
(2) Yes.The fact that the President referred the VFA to the Senate under Section 21, Article VII, and that the Senate extended its concurrence under the same provision, is immaterial. For in either case, whether under Section 21, Article VII or Section 25, Article XVIII, the fundamental
law is crystalline that the concurrence of the Senate is mandatory to comply with the strict constitutional requirements.
(3) No. In fine, absent any clear showing of grave abuse of discretion on the part of respondents, the Court as the final arbiter of legal controversies and staunch sentinel of the rights of the people is then without power to conduct an incursion and meddle with such affairs purely executive and legislative in character and nature. For the Constitution no less, maps out the distinct boundaries and limits the metes and bounds within which each of the three political branches of government may exercise the powers exclusively and essentially conferred to it by law.
Facts:
The Philippines and the United States entered into a Mutual Defense Treaty on August 30, 1951, To further strengthen their defense and security relationship. Under the treaty, the parties agreed to respond to any external armed attack on their territory, armed forces, public vessels, and aircraft.
On September 16, 1991, the Philippine Senate rejected the proposed RP-US Treaty of Friendship, Cooperation and Security which, in effect, would have extended the presence of US military bases in the Philippines.
On July 18, 1997 RP and US exchanged notes and discussed, among other things, the possible elements of the Visiting Forces Agreement (VFA).This resulted to a series of conferences and negotiations which culminated on January 12 and 13, 1998. Thereafter, President Fidel Ramos approved the VFA, which was respectively signed by Secretary Siazon and United States Ambassador Thomas Hubbard.
On October 5, 1998, President Joseph E. Estrada, through respondent Secretary of Foreign Affairs, ratified the VFA. On October 6, 1998, the President, acting through respondent Executive Secretary Ronaldo Zamora, officially transmitted to the Senate of the Philippines,the Instrument of Ratification, the letter of the President and the VFA, for concurrence pursuant to Section 21, Article VII of the 1987 Constitution.
Petitions for certiorari and prohibition, petitioners – as legislators, non-governmental organizations, citizens and taxpayers – assail the constitutionality of the VFA and impute to herein respondents grave abuse of discretion in ratifying the agreement.
Petitioner contends, under they provision cited, the “foreign military bases, troops, or facilities” may be allowed in the Philippines unless the following conditions are sufficiently met: a) it must be a treaty,b) it must be duly concurred in by the senate, ratified by a majority of the votes cast in a national referendum held for that purpose if so required by congress, and c) recognized as such by the other
contracting state.
Respondents, on the other hand, argue that Section 21 Article VII is applicable so that, what is requires for such treaty to be valid and effective is the concurrence in by at least two-thirds of all the members of the senate.
Issue:
Is the VFA governed by the provisions of Section 21, Art VII or of Section 25, Article XVIII of the Constitution?
Ruling:
Section 25, Article XVIII, which specifically deals with treaties involving foreign military bases, troops or facilities should apply in the instant case.
The 1987 Philippine Constitution contains two provisions requiring the concurrence of the Senate on treaties or international agreements. Sec. 21 Art. VII, which respondent invokes, reads: “No treaty or international agreement shall be valid and effective unless concurred in by at least 2/3 of all the Members of the Senate. Sec. 25 Art. XVIII provides : “After the expiration in 1991 of the Agreement between the RP and the US concerning Military Bases, foreign military bases, troops or facilities shall not be allowed in the Philippines except under a treaty duly concurred in and when the Congress so requires, ratified by a majority of votes cast by the people in a national referendum held for that purpose, and recognized as a treaty by the Senate by the other contracting state”.
The first cited provision applies to any form of treaties and international agreements in general with a wide variety of subject matter. All treaties and international agreements entered into by the Philippines, regardless of subject matter, coverage or particular designation requires the concurrence of the Senate to be valid and effective.
In contrast, the second cited provision applies to treaties which involve presence of foreign military bases, troops and facilities in the Philippines. Both constitutional provisions share some common ground. The fact that the President referred the VFA to the Senate under Sec. 21 Art. VII, and that Senate extended its concurrence under the same provision is immaterial.
EN BANC
G.R. No. 180771, April 21, 2015
RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPE TANON STRAIT, E.G., TOOTHED WHALES, DOLPHINS, PORPOISES, AND OTHER CETACEAN SPECIES, JOINED IN AND REPRESENTED HEREIN BY HUMAN
BEINGS GLORIA ESTENZO RAMOS AND ROSE-LIZA EISMA-OSORIO, IN THEIR CAPACITY AS LEGAL GUARDIANS OF THE LESSER LIFE-FORMS AND AS
RESPONSIBLE STEWARDS OF GOD'S CREATIONS, Petitioners, v. SECRETARY ANGELO REYES, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF
ENERGY (DOE), SECRETARY JOSE L. ATIENZA, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES (DENR), LEONARDO R. SIBBALUCA, DENR REGIONAL DIRECTOR-REGION VII AND IN HIS CAPACITY AS CHAIRPERSON OF THE
TANON STRAIT PROTECTED SEASCAPE MANAGEMENT BOARD, BUREAU OF FISHERIES AND AQUATIC RESOURCES (BFAR), DIRECTOR MALCOLM I.
SARMIENTO, JR., BFAR REGIONAL DIRECTOR FOR REGION VII ANDRES M. BOJOS, JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), AS
REPRESENTED BY ITS PHILIPPINE AGENT, SUPPLY OILFIELD SERVICES, INC., Respondents.
G.R. No. 181527
CENTRAL VISAYAS FISHERFOLK DEVELOPMENT CENTER (FIDEC), CERILO D. ENGARCIAL, RAMON YANONG, FRANCISCO LABID, IN THEIR PERSONAL
CAPACITY AND AS REPRESENTATIVES OF THE SUBSISTENCE FISHERFOLKS OF THE MUNICIPALITIES OF ALOGUINSAN AND PINAMUNGAJAN, CEBU, AND
THEIR FAMILIES, AND THE PRESENT AND FUTURE GENERATIONS OF FILIPINOS WHOSE RIGHTS ARE SIMILARLY
AFFECTED, Petitioners,v. SECRETARY ANGELO REYES, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF ENERGY (DOE), JOSE L. ATIENZA, IN
HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES (DENR), LEONARDO R. SIBBALUCA, IN HIS CAPACITY AS DENR REGIONAL DIRECTOR-REGION VII AND AS CHAIRPERSON OF THE
TAÑON STRAIT PROTECTED SEASCAPE MANAGEMENT BOARD, ALAN ARRANGUEZ, IN HIS CAPACITY AS DIRECTOR ENVIRONMENTAL
MANAGEMENT BUREAU-REGION VII, DOE REGIONAL DIRECTOR FOR REGION VIII1 ANTONIO LABIOS, JAPAN PETROLEUM EXPLORATION CO., LTD.
(JAPEX), AS REPRESENTED BY ITS PHILIPPINE AGENT, SUPPLY OILFIELD SERVICES, INC., Respondent.
D E C I S I O N
LEONARDO-DE CASTRO, J.:
Before Us are two consolidated Petitions filed under Rule 65 of the 1997 Rules of Court, concerningService Contract No. 46 (SC-46), which allowed the exploration, development, and exploitation of petroleum resources within Tañon Strait, a narrow passage of water situated between the islands of Negros and Cebu.2
The Petition docketed as G.R. No. 180771 is an original Petition for Certiorari, Mandamus, and Injunction, which seeks to enjoin respondents from implementing SC-46 and to have it nullified for willful and gross violation of the 1987 Constitution and certain international and municipal laws.3
Likewise, the Petition docketed as G.R. No. 181527 is an original Petition for Certiorari, Prohibition, and Mandamus, which seeks to nullify the Environmental Compliance Certificate (ECC) issued by the Environmental Management Bureau (EMB) of the Department of Environment and Natural Resources (DENR), Region VII in connection with SC-46; to prohibit respondents from implementing SC-46; and to compel public respondents to provide petitioners access to the pertinent documents involving the Tañon Strait Oil Exploration Project.4
ANTECEDENT FACTS AND PROCEEDINGS
Petitioners in G.R. No. 180771, collectively referred to as the "Resident Marine Mammals" in the petition, are the toothed whales, dolphins, porpoises, and other cetacean species, which inhabit the waters in and around the Tañon Strait. They are joined by Gloria Estenzo Ramos (Ramos) and Rose-Liza Eisma-Osorio (Eisma-Osorio) as their legal guardians and as friends (to be collectively known as "the Stewards") who allegedly empathize with, and seek the protection of, the aforementioned marine species. Also impleaded as an unwilling co-petitioner is former President Gloria Macapagal-Arroyo, for her express declaration and undertaking in the ASEAN Charter to protect the Tañon Strait, among others.5
Petitioners in G.R. No. 181527 are the Central Visayas Fisherfolk Development Center (FIDEC), a non-stock, non-profit, non-governmental organization, established for the welfare of the marginal fisherfolk in Region VII; and Cerilo D. Engarcial (Engarcial), Ramon Yanong (Yanong) and Francisco Labid (Labid), in their personal capacities and as representatives of the subsistence fisherfolk of the municipalities of Aloguinsan and Pinamungajan, Cebu.
Named as respondents in both petitions are the late Angelo T. Reyes, as then Secretary of the Department of Energy (DOE); Jose L. Atienza, as then Secretary of the DENR; Leonardo R. Sibbaluca, as then DENR-Regional Director for Region VII and Chairman of the Tañon Strait Protected Seascape Management Board; Japan Petroleum Exploration Co., Ltd. (JAPEX), a company organized and existing under the laws of Japan with a Philippine branch office; and Supply Oilfield Services, Inc. (SOS), as the alleged Philippine agent of JAPEX.
In G.R. No. 181527, the following were impleaded as additional public respondents: Alan C. Arranguez (Arranguez) and Antonio Labios (Labios), in their capacities as then Director of the EMB, Region VII and then Regional Director of the DOE, Region VII, respectively.6
On June 13, 2002, the Government of the Philippines, acting through the DOE, entered into a Geophysical Survey and Exploration Contract-102 (GSEC-102) with JAPEX. This contract involved geological and geophysical studies of the Tañon Strait. The studies included surface geology, sample analysis, and reprocessing of seismic
and magnetic data. JAPEX, assisted by DOE, also conducted geophysical and satellite surveys, as well as oil and gas sampling in Tañon Strait.7
On December 21, 2004, DOE and JAPEX formally converted GSEC-102 into SC-46 for the exploration, development, and production of petroleum resources in a block covering approximately 2,850 square kilometers offshore the Tañon Strait.8
From May 9 to 18, 2005, JAPEX conducted seismic surveys in and around the Tañon Strait. A multi-channel sub-bottom profiling covering approximately 751 kilometers was also done to determine the area's underwater composition.9
JAPEX committed to drill one exploration well during the second sub-phase of the project. Since the well was to be drilled in the marine waters of Aloguinsan and Pinamungajan, where the Tañon Strait was declared a protected seascape in 1988,10 JAPEX agreed to comply with the Environmental Impact Assessment requirements pursuant to Presidential Decree No. 1586, entitled "Establishing An Environmental Impact Statement System, Including Other Environmental Management Related Measures And For Other Purposes."11
On January 31, 2007, the Protected Area Management Board12 of the Tañon Strait (PAMB-Tañon Strait) issued Resolution No. 2007-001,13 wherein it adopted the Initial Environmental Examination (IEE) commissioned by JAPEX, and favorably recommended the approval of JAPEX's application for an ECC.
On March 6, 2007, the EMB of DENR Region VII granted an ECC to the DOE and JAPEX for the offshore oil and gas exploration project in Tañon Strait.14 Months later, on November 16, 2007, JAPEX began to drill an exploratory well, with a depth of 3,150 meters, near Pinamungajan town in the western Cebu Province.15 This drilling lasted until February 8, 2008.16
It was in view of the foregoing state of affairs that petitioners applied to this Court for redress, via two separate original petitions both dated December 17, 2007, wherein they commonly seek that respondents be enjoined from implementing SC-46 for, among others, violation of the 1987 Constitution.
On March 31, 2008, SOS filed a Motion to Strike17 its name as a respondent on the ground that it is not the Philippine agent of JAPEX. In support of its motion, it submitted the branch office application of JAPEX,18 wherein the latter's resident agent was clearly identified. SOS claimed that it had acted as a mere logistics contractor for JAPEX in its oil and gas exploration activities in the Philippines.
Petitioners Resident Marine Mammals and Stewards opposed SOS's motion on the ground that it was premature, it was pro-forma, and it was patently dilatory. They claimed that SOS admitted that "it is in law a (sic) privy to JAPEX" since it did the drilling and other exploration activities in Tañon Strait under the instructions of its principal, JAPEX. They argued that it would be premature to drop SOS as a party as JAPEX had not yet been joined in the case; and that it was "convenient" for SOS to ask the Court to simply drop its name from the parties when what it should have done was to either notify or ask JAPEX to join it in its motion to enable proper substitution. At this juncture, petitioners Resident Marine Mammals and Stewards
also asked the Court to implead JAPEX Philippines as a corespondent or as a substitute for its parent company, JAPEX.19
On April 8, 2008, the Court resolved to consolidate G.R. No. 180771 and G.R. No. 181527.
On May 26, 2008, the FIDEC manifested20 that they were adopting in toto the Opposition to Strike with Motion to Implead filed by petitioners Resident Marine Mammals and Stewards in G.R. No. 180771.
On June 19, 2008, public respondents filed their Manifestation21 that they were not objecting to SOS's Motion to Strike as it was not JAPEX's resident agent. JAPEX during all this time, did not file any comment at all.
Thus, on February 7, 2012, this Court, in an effort to ensure that all the parties were given ample chance and opportunity to answer the issues herein, issued a Resolution directing the Court's process servicing unit to again serve the parties with a copy of the September 23, 2008 Resolution of the Court, which gave due course to the petitions in G.R. Nos. 180771 and 181527, and which required the parties to submit their respective memoranda. The February 7, 2012 Resolution22 reads as follows:chanroblesvirtuallawlibraryG.R. No. 180771 (Resident Marine Mammals of the Protected Seascape Tañon Strait,e.g., Toothed Whales, Dolphins, Porpoises and Other Cetacean Species, et al. vs. Hon. Angelo Reyes, in his capacity as Secretary of the Department of Energy, et al.) andG.R. No. 181527 (Central Visayas Fisherfolk Development Center, et al. vs. Hon. Angelo Reyes, et al.). - The Court Resolved to direct the Process Servicing Unit to RE-SEND the resolution dated September 23, 2008 to the following parties and counsel, together with this resolution:chanroblesvirtuallawlibraryAtty. Aristeo O. Cariño 20th Floor Pearlbank CentreCounsel for Respondent Supply
146 Valero Street
Oilfield Services, Inc. Salcedo Village, Makati City JAPEX Philippines Ltd.
20th Floor Pearlbank Centre
146 Valero Street Salcedo Village, Makati City JAPEX Philippines Ltd.
19th Floor Pearlbank Centre
c/o Atty. Maria Farah Z.G. 146 Valero StreetNicolas-Suchianco Salcedo Village, Makati City
Atty. Maria Farah Z.G. Suite 2404 Discovery CentreNicolas-Suchianco 25 ADB AvenueResident Agent of JAPEX Ortigas Center, Pasig CityPhilippines Ltd. This Resolution was personally served to the above parties, at the above addresses on February 23, 2012. On March 20, 2012, JAPEX Philippines, Ltd. (JAPEX PH), by way of special appearance, filed a Motion to Admit23 its Motion for Clarification,24 wherein JAPEX PH requested to be clarified as to whether or not it should deem the February 7, 2012 Resolution as this Court's Order of its inclusion in the case, as it has not been impleaded. It also alleged that JAPEX PH had already stopped exploration activities in the Tañon Strait way back in 2008, rendering this case moot.
On March 22, 2012, JAPEX PH, also by special appearance, filed a Motion for Extension of Time25 to file its Memorandum. It stated that since it received the February 7, 2012 Resolution on February 23, 2012, it had until March 22, 2012 to file its Memorandum. JAPEX PH then asked for an additional thirty days, supposedly to give this Court some time to consider its Motion for Clarification.
On April 24, 2012, this Court issued a Resolution26 granting JAPEX PH's Motion to Admit its Motion for Clarification. This Court, addressing JAPEX PH's Motion for Clarification, held:chanroblesvirtuallawlibraryWith regard to its Motion for Clarification (By Special Appearance) dated March 19, 2012, this Court considers JAPEX Philippines. Ltd. as a real party-in-interest in these cases. Under Section 2, Rule 3 of the 1997 Rules of Court, a real party-in-interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Contrary to JAPEX Philippines, Ltd.'s allegation that it is a completely distinct corporation, which should not be confused with JAPEX Company, Ltd., JAPEX Philippines, Ltd. is a mere branch office, established by JAPEX Company, Ltd. for the purpose of carrying out the latter's business transactions here in the Philippines. Thus, JAPEX Philippines, Ltd., has no separate personality from its mother foreign corporation, the party impleaded in this case.
Moreover, Section 128 of the Corporation Code provides for the responsibilities and duties of a resident agent of a foreign corporation:chanroblesvirtuallawlibrarySECTION 128. Resident agent; service of process. — The Securities and Exchange Commission shall require as a condition precedent to the issuance of the license to transact business in the Philippines by any foreign corporation that such corporation file with the Securities and Exchange Commission a written power of attorney designating some person who must be a resident of the Philippines, on whom any summons and other legal processes may be served in all actions or other legal proceedings against such corporation, and consenting that service upon such resident agent shall be admitted and held as valid as if served upon the duly authorized officers of the foreign corporation at its home office. Any such foreign corporation shall likewise execute and file with the Securities and Exchange Commission an agreement or stipulation, executed by the proper authorities of said corporation, in form and substance as follows:
"The (name of foreign corporation) does hereby stipulate and agree, in consideration of its being granted by the Securities and Exchange Commission a license to transact business in the Philippines, that if at any time said corporation shall cease to transact business in the Philippines, or shall be without any resident agent in the Philippines on whom any summons or other legal processes may be served, then in any action or proceeding arising out of any business or transaction which occurred in the Philippines, service of any summons or other legal process may be made upon the Securities and Exchange Commission and that such service shall have the same force and effect as if made upon the duly-authorized officers of the corporation at its home office."
Whenever such service of summons or other process shall be made upon the Securities and Exchange Commission, the Commission shall, within ten (10) days thereafter, transmit by mail a copy of such summons or other legal process to the corporation at its home or principal office. The sending of such copy by the Commission shall be a necessary part of and shall complete such service. All expenses incurred by the Commission for such service shall be paid in advance by the party at whose instance the service is made.
In case of a change of address of the resident agent, it shall be his or its duty to immediately notify in writing the Securities and Exchange Commission of the new address.It is clear from the foregoing provision that the function of a resident agent is to receive summons or legal processes that may be served in all actions or other legal proceedings against the foreign corporation. These cases have been prosecuted in the name of JAPEX Company, Ltd., and JAPEX Philippines Ltd., as its branch office and resident agent, had been receiving the various resolutions from this Court, as evidenced by Registry Return Cards signed by its representatives.And in the interest of justice, this Court resolved to grant JAPEX PH's motion for extension of time to file its memorandum, and was given until April 21, 2012, as prayed for, within which to comply with the submission.27
Without filing its Memorandum, JAPEX PH, on May 14, 2012, filed a motion, asking this Court for an additional thirty days to file its Memorandum, to be counted from May 8, 2012. It justified its request by claiming that this Court's April 24, 2012 Resolution was issued past its requested deadline for filing, which was on April 21, 2012.28
On June 19, 2012, this Court denied JAPEX PH's second request for additional time to file its Memorandum and dispensed with such filing.
Since petitioners had already filed their respective memoranda,29 and public respondents had earlier filed a Manifestation30 that they were adopting their Comment dated March 31, 2008 as their memorandum, this Court submitted the case for decision.chanRoblesvirtualLawlibrary
Petitioners' Allegations
Protesting the adverse ecological impact of JAPEX's oil exploration activities in the
Tañon Strait, petitioners Resident Marine Mammals and Stewards aver that a study made after the seismic survey showed that the fish catch was reduced drastically by 50 to 70 percent. They claim that before the seismic survey, the average harvest per day would be from 15 to 20 kilos; but after the activity, the fisherfolk could only catch an average of 1 to 2 kilos a day. They attribute this "reduced fish catch" to the destruction of the "payao" also known as the "fish aggregating device" or "artificial reef."31Petitioners Resident Marine Mammals and Stewards also impute the incidences of "fish kill"32observed by some of the local fisherfolk to the seismic survey. And they further allege that the ECC obtained by private respondent JAPEX is invalid because public consultations and discussions with the affected stakeholders, a pre-requisite to the issuance of the ECC, were not held prior to the ECC's issuance.
In its separate petition, petitioner FIDEC confirms petitioners Resident Marine Mammals and Stewards' allegations of reduced fish catch and lack of public consultations or discussions with the fisherfolk and other stakeholders prior to the issuance of the ECC. Moreover, it alleges that during the seismic surveys and drilling, it was barred from entering and fishing within a 7-kilometer radius from the point where the oilrig was located, an area greater than the 1.5-kilometer radius "exclusion zone" stated in the IEE.33 It also agrees in the allegation that public respondents DENR and EMB abused their discretion when they issued an ECC to public respondent DOE and private respondent JAPEX without ensuring the strict compliance with the procedural and substantive requirements under the Environmental Impact Assessment system, the Fisheries Code, and their implementing rules and regulations.34 It further claims that despite several requests for copies of all the documents pertaining to the project in Taflon Strait, only copies of the PAMB-Tañon Strait Resolution and the ECC were given to the fisherfolk.35
Public Respondents' Counter-Allegations
Public respondents, through the Solicitor General, contend that petitioners Resident Marine Mammals and Stewards have no legal standing to file the present petition; that SC-46 does not violate the 1987 Constitution and the various laws cited in the petitions; that the ECC was issued in accordance with existing laws and regulations; that public respondents may not be compelled by mandamus to furnish petitioners copies of all documents relating to SC-46; and that all the petitioners failed to show that they are entitled to injunctive relief. They further contend that the issues raised in these petitions have been rendered moot and academic by the fact that SC-46 had been mutually terminated by the parties thereto effective June 21, 2008.36
ISSUES
The following are the issues posited by petitioners Resident Marine Mammals and Stewards in G.R. No. 180771:chanroblesvirtuallawlibrary
I. WHETHER OR NOT PETITIONERS HAVE LOCUS STANDI TO FILE THE INSTANT PETITION;
II. WHETHER OR NOT SERVICE CONTRACT NO. 46 IS VIOLAT[IVE] OF THE 1987 PHILIPPINE CONSTITUTION AND STATUTES;
III. WHETHER OR NOT THE ON-GOING EXPLORATION AND PROPOSED EXPLOITATION FOR OIL AND NATURAL GAS AT, AROUND, AND UNDERNEATH THE MARINE WATERS OF THE TANON STRAIT PROTECTED SEASCAPE IS INCONSISTENT WITH THE PHILIPPINE COMMITMENTS TO INTERNATIONAL ENVIRONMENTAL LAWS AND INSTRUMENTS; AND
IV. WHETHER OR NOT THE ISSUANCE OF THE ENVIRONMENTAL COMPLIANCE CERTIFICATE (ECC) IN ENVIRONMENTALLY CRITICAL AREAS AND HABITATS OF MARINE WILDLIFE AND ENDANGERED SPECIES IS LEGAL AND PROPER.37
Meanwhile, in G.R. No. 181527, petitioner FIDEC presented the following issues for our consideration:chanroblesvirtuallawlibrary
I. WHETHER OR NOT SERVICE CONTRACT NO. 46 EXECUTED BETWEEN RESPONDENTS DOE AND JAPEX SHOULD BE NULLIFIED AND SET ASIDE FOR BEING IN DIRECT VIOLATION OF SPECIFIC PROVISIONS OF THE 1987 PHILIPPINE CONSTITUTION AND APPLICABLE LAWS;
II. WHETHER OR NOT THE OFF-SHORE OIL EXPLORATION CONTEMPLATED UNDER SERVICE CONTRACT NO. 46 IS LEGALLY PERMISSIBLE WITHOUT A LAW BEING DULY PASSED EXPRESSLY FOR THE PURPOSE;
III. WHETHER OR NOT THE OIL EXPLORATION BEING CONDUCTED WITHIN THE TANON STRAIT PROTECTED SEASCAPE VIOLATES THE RIGHTS AND LEGAL PROTECTION GRANTED TO PETITIONERS UNDER THE CONSTITUTION AND APPLICABLE LAWS.
IV. WHETHER OR NOT THE ISSUANCE OF THE ENVIRONMENTAL COMPLIANCE CERTIFICATE (ECC) FOR SUCH AN ENVIRONMENTALLY CRITICAL PROJECT INSIDE AN ENVIRONMENTALLY CRITICAL AREA SUCH AS THE TANON STRAIT PROTECTED SEASCAPE CONFORMED TO LAW AND EXISTING RULES AND REGULATIONS ON THE MATTER.
V. WHETHER OR NOT THE RESPONDENTS MAY BE COMPELLED BY MANDAMUS TO FURNISH PETITIONERS WITH COPIES OF THE DOCUMENTS PERTAINING TO THE TANON STRAIT OIL EXPLORATION PROJECT.38
In these consolidated petitions, this Court has determined that the various issues raised by the petitioners may be condensed into two primary issues:
I. Procedural Issue: Locus Standi of the Resident Marine Mammals and Stewards, petitioners in G.R. No. 180771; and
II. Main Issue: Legality of Sendee Contract No. 46.
DISCUSSION
At the outset, this Court makes clear that the '"moot and academic principle' is not a magical formula that can automatically dissuade the courts in resolving a case." Courts have decided cases otherwise moot and academic under the following exceptions:
1) There is a grave violation of the Constitution;
2) The exceptional character of the situation and the paramount public interest is involved;
3) The constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and
4) The case is capable of repetition yet evading review.39
In this case, despite the termination of SC-46, this Court deems it necessary to resolve these consolidated petitions as almost all of the foregoing exceptions are present in this case. Both petitioners allege that SC-46 is violative of the Constitution, the environmental and livelihood issues raised undoubtedly affect the public's interest, and the respondents' contested actions are capable of repetition.chanRoblesvirtualLawlibrary
Procedural Issues
Locus Standi of Petitioners Resident Marine Mammals and Stewards
The Resident Marine Mammals, through the Stewards, "claim" that they have the legal standing to file this action since they stand to be benefited or injured by the judgment in this suit.40 Citing Oposa v. Factoran, Jr.,41 they also assert their right to sue for the faithful performance of international and municipal environmental laws created in their favor and for their benefit. In this regard, they propound that they have the right to demand that they be accorded the benefits granted to them in multilateral international instruments that the Philippine Government had signed, under the concept of stipulation pour autrui.42
For their part, the Stewards contend that there should be no question of their right to represent the Resident Marine Mammals as they have stakes in the case as forerunners of a campaign to build awareness among the affected residents of Tañon Strait and as stewards of the environment since the primary steward, the Government, had failed in its duty to protect the environment pursuant to the public trust doctrine.43
Petitioners Resident Marine Mammals and Stewards also aver that this Court may lower the benchmark in locus standi as an exercise of epistolary jurisdiction.44
In opposition, public respondents argue that the Resident Marine Mammals have no standing because Section 1, Rule 3 of the Rules of Court requires parties to an action to be either natural or juridical persons, viz.:chanroblesvirtuallawlibrarySection 1. Who may be parties; plaintiff and defendant. - Only natural or juridical persons, or entities authorized by law may be parties in a civil action. The term "plaintiff may refer to the claiming party, the counter-claimant, the cross-claimant, or the third (fourth, etc.)-party plaintiff. The term "defendant" may refer to the original defending party, the defendant in a counterclaim, the cross-defendant, or the third (fourth, etc.)-party defendant.
The public respondents also contest the applicability of Oposa, pointing out that the petitioners therein were all natural persons, albeit some of them were still unborn.45
As regards the Stewards, the public respondents likewise challenge their claim of legal standing on the ground that they are representing animals, which cannot be parties to an action. Moreover, the public respondents argue that the Stewards are not the real parties-in-interest for their failure to show how they stand to be benefited or injured by the decision in this case.46
Invoking the alter ego principle in political law, the public respondents claim that absent any proof that former President Arroyo had disapproved of their acts in entering into and implementing SC-46, such acts remain to be her own.47
The public respondents contend that since petitioners Resident Marine Mammals and Stewards' petition was not brought in the name of a real party-in-interest, it should be dismissed for failure to state a cause of action.48
The issue of whether or not animals or even inanimate objects should be given legal standing in actions before courts of law is not new in the field of animal rights and environmental law. Petitioners Resident Marine Mammals and Stewards cited the 1972 United States case Sierra Club v. Rogers C.B. Morton,49 wherein Justice William O. Douglas, dissenting to the conventional thought on legal standing, opined:chanroblesvirtuallawlibraryThe critical question of "standing" would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage, x x x.
Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. The corporation sole - a creature of ecclesiastical law - is an acceptable adversary and large fortunes ride on its cases. The ordinary corporation is a "person" for purposes of the adjudicatory processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes.
So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modem life. The river, for example, is the living symbol of all the life it sustains or nourishes—fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water—whether it be a fisherman, a canoeist, a zoologist, or a logger—must be able to speak for the values which the river represents and which are threatened with destruction.50(Citations omitted.)The primary reason animal rights advocates and environmentalists seek to give animals and inanimate objects standing is due to the need to comply with the strict requirements in bringing a suit to court. Our own 1997 Rules of Court demand that parties to a suit be either natural or juridical persons, or entities authorized by law.
It further necessitates the action to be brought in the name of the real party-in-interest, even if filed by a representative, viz.:chanroblesvirtuallawlibrary
Rule 3 Parties to Civil Actions
Section 1. Who may be parties; plaintiff and defendant. - Only natural or juridical persons, or entities authorized by law may be parties in a civil action. The term "plaintiff may refer to the claiming party, the counter-claimant, the cross-claimant, or the third (fourth, etc.)-party plaintiff. The term "defendant" may refer to the original defending party, the defendant in a counterclaim, the cross-defendant, or the third (fourth, etc.)-party defendant.
Sec. 2. Parties in interest. - A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defended in the name of the real party in interest.
Sec. 3. Representatives as parties. - Where the action is allowed to be prosecuted or defended by a representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest. A representative may be a trustee of an express trust, a guardian, an executor or administrator, or a party authorized by law or these Rules. An agent acting in his own name and for the benefit of an undisclosed principal may sue or be sued without joining the principal except when the contract involves things belonging to the principal.It had been suggested by animal rights advocates and environmentalists that not only natural and juridical persons should be given legal standing because of the difficulty for persons, who cannot show that they by themselves are real parties-in-interests, to bring actions in representation of these animals or inanimate objects. For this reason, many environmental cases have been dismissed for failure of the petitioner to show that he/she would be directly injured or affected by the outcome of the case. However, in our jurisdiction, locus standi in environmental cases has been given a more liberalized approach. While developments in Philippine legal theory and jurisprudence have not progressed as far as Justice Douglas's paradigm of legal standing for inanimate objects, the current trend moves towards simplification of procedures and facilitating court access in environmental cases.
Recently, the Court passed the landmark Rules of Procedure for Environmental Cases,51 which allow for a "citizen suit," and permit any Filipino citizen to file an action before our courts for violations of our environmental laws:chanroblesvirtuallawlibrarySEC. 5. Citizen suit. - Any Filipino citizen in representation of others, including minors or generations yet unborn, may file an action to enforce rights or obligations under environmental laws. Upon the filing of a citizen suit, the court shall issue an order which shall contain a brief description of the cause of action and the reliefs prayed for, requiring all interested parties to manifest their interest to intervene in the case within fifteen (15) days from notice thereof. The plaintiff may publish the order once in a newspaper of a general circulation in the Philippines or furnish all affected barangays copies of said order.
Citizen suits filed under R.A. No. 8749 and R.A. No. 9003 shall be governed by their respective provisions.52 (Emphasis ours.)Explaining the rationale for this rule, the Court, in the Annotations to the Rules of Procedure for Environmental Cases, commented:chanroblesvirtuallawlibraryCitizen suit. To further encourage the protection of the environment, the Rules enable litigants enforcing environmental rights to file their cases as citizen suits. This provision liberalizes standing for all cases filed enforcing environmental laws and collapses the traditional rule on personal and direct interest, on the principle that humans are stewards of nature. The terminology of the text reflects the doctrine first enunciated in Oposa v. Factoran, insofar as it refers to minors and generations yet unborn.53(Emphasis supplied, citation omitted.)Although this petition was filed in 2007, years before the effectivity of the Rules of Procedure for Environmental Cases, it has been consistently held that rules of procedure "may be retroactively applied to actions pending and undetermined at the time of their passage and will not violate any right of a person who may feel that he is adversely affected, inasmuch as there is no vested rights in rules of procedure."54
Elucidating on this doctrine, the Court, in Systems Factors Corporation v. National Labor Relations Commission55 held that:chanroblesvirtuallawlibraryRemedial statutes or statutes relating to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of rights already existing, do not come within the legal conception of a retroactive law, or the general rule against retroactive operation of statutes. Statutes regulating the procedure of the courts will be construed as applicable to actions pending and undetermined at the time of their passage. Procedural laws are retroactive in that sense and to that extent, x x x.Moreover, even before the Rules of Procedure for Environmental Cases became effective, this Court had already taken a permissive position on the issue of locus standi in environmental cases. InOposa, we allowed the suit to be brought in the name of generations yet unborn "based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned."56 Furthermore, we said that the right to a balanced and healthful ecology, a right that does not even need to be stated in our Constitution as it is assumed to exist from the inception of humankind, carries with it the correlative duty to refrain from impairing the environment.57
In light of the foregoing, the need to give the Resident Marine Mammals legal standing has been eliminated by our Rules, which allow any Filipino citizen, as a steward of nature, to bring a suit to enforce our environmental laws. It is worth noting here that the Stewards are joined as real parties in the Petition and not just in representation of the named cetacean species. The Stewards, Ramos and Eisma-Osorio, having shown in their petition that there may be possible violations of laws concerning the habitat of the Resident Marine Mammals, are therefore declared to possess the legal standing to file this petition.chanRoblesvirtualLawlibrary
Impleading Former President Gloria Macapagal-Arroyo as an Unwilling Co-Petitioner
Petitioners Stewards in G.R. No. 180771 impleaded as an unwilling co-petitioner
former President Gloria Macapagal-Arroyo for the following reasons, which we quote:chanroblesvirtuallawlibraryHer Excellency Gloria Macapagal-Arroyo, also of legal age, Filipino and resident of Malacañang Palace, Manila Philippines. Steward Gloria Macapagal-Arroyo happens to be the incumbent President of the Philippine Islands. She is personally impleaded in this suit as an unwilling co-petitioner by reason of her express declaration and undertaking under the recently signed ASEAN Charter to protect Your Petitioners' habitat, among others. She is meantime dominated as an unwilling co-petitioner due to lack of material time in seeking her signature and imprimatur hereof and due to possible legal complications that may hereafter arise by reason of her official relations with public respondents under the alter ego principle in political law.58cralawlawlibraryThis is incorrect.
Section 10, Rule 3 of the Rules of Court provides:chanroblesvirtuallawlibrarySec. 10. Unwilling co-plaintiff. - If the consent of any party who should be joined as plaintiff can not be obtained, he may be made a defendant and the reason therefor shall be stated in the complaint.Under the foregoing rule, when the consent of a party who should be joined as a plaintiff cannot be obtained, he or she may be made a party defendant to the case. This will put the unwilling party under the jurisdiction of the Court, which can properly implead him or her through its processes. The unwilling party's name cannot be simply included in a petition, without his or her knowledge and consent, as such would be a denial of due process.
Moreover, the reason cited by the petitioners Stewards for including former President Macapagal-Arroyo in their petition, is not sufficient to implead her as an unwilling co-petitioner. Impleading the former President as an unwilling co-petitioner, for an act she made in the performance of the functions of her office, is contrary to the public policy against embroiling the President in suits, "to assure the exercise of Presidential duties and functions free from any hindrance or distraction, considering that being the Chief Executive of the Government is a job that, aside from requiring all of the office holder's time, also demands undivided attention."59
Therefore, former President Macapagal-Arroyo cannot be impleaded as one of the petitioners in this suit. Thus, her name is stricken off the title of this case.chanRoblesvirtualLawlibrary
Main Issue: Legality of Service Contract No. 46
Service Contract No. 46 vis-a-vis Section 2, Article XII of the
1987 Constitution
Petitioners maintain that SC-46 transgresses the Jura Regalia Provision or paragraph 1, Section 2, Article XII of the 1987 Constitution because JAPEX is 100% Japanese-owned.60 Furthermore, the FIDEC asserts that SC-46 cannot be considered as a technical and financial assistance agreement validly executed under paragraph 4 of the same provision.61 The petitioners claim that La Bugal-B'laan Tribal Association,
Inc. v. Ramos62 laid down the guidelines for a valid service contract, one of which is that there must exist a general law for oil exploration before a service contract may be entered into by the Government. The petitioners posit that the service contract in La Bugal is presumed to have complied with the requisites of (a) legislative enactment of a general law after the effectivity of the 1987 Constitution (such as Republic Act No. 7942, or the Philippine Mining Law of 1995, governing mining contracts) and (b) presidential notification. The petitioners thus allege that the ruling in La Bugal, which involved mining contracts under Republic Act No. 7942, does not apply in this case.63 The petitioners also argue that Presidential Decree No. 87 or the Oil Exploration and Development Act of 1972 cannot legally justify SC-46 as it is deemed to have been repealed by the 1987 Constitution and subsequent laws, which enunciate new policies concerning the environment.64In addition, petitioners in G.R. No. 180771 claim that paragraphs 2 and 3 of Section 2, Article XII of the 1987 Constitution mandate the exclusive use and enjoyment by the Filipinos of our natural resources,65 and paragraph 4 does not speak of service contracts but of FTAAs or Financial Technical Assistance Agreements.66
The public respondents again controvert the petitioners' claims and asseverate that SC-46 does not violate Section 2, Article XII of the 1987 Constitution. They hold that SC-46 does not fall under the coverage of paragraph 1 but instead, under paragraph 4 of Section 2, Article XII of the 1987 Constitution on FTAAs. They also insist that paragraphs 2 and 3, which refer to the grant of exclusive fishing right to Filipinos, are not applicable to SC-46 as the contract does not grant exclusive fishing rights to JAPEX nor does it otherwise impinge on the FIDEC's right to preferential use of communal marine and fishing resources.67
Ruling of the CourtOn the legality of Service Contract No. 46
vis-a-vis Section 2, Article XII of the 1987 Constitution
The petitioners insist that SC-46 is null and void for having violated Section 2, Article XII of the 1987 Constitution, which reads as follows:chanroblesvirtuallawlibrarySection 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and limit of the grant.
The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive economic zone, and reserve its use and enjoyment
exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned corporations involving either technical or financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other mineral oils according to the general terms and conditions provided by law, based on real contributions to the economic growth and general welfare of the country. In such agreements, the State shall promote the development and use of local scientific and technical resources.
The President shall notify the Congress of every contract entered into in accordance with this provision, within thirty days from its execution. (Emphases ours.)This Court has previously settled the issue of whether service contracts are still allowed under the 1987 Constitution. In La Bugal, we held that the deletion of the words "service contracts" in the 1987 Constitution did not amount to a ban on them per se. In fact, in that decision, we quoted in length, portions of the deliberations of the members of the Constitutional Commission (ConCom) to show that in deliberating on paragraph 4, Section 2, Article XII, they were actually referring to service contracts as understood in the 1973 Constitution, albeit with safety measures to eliminate or minimize the abuses prevalent during the martial law regime, to wit:chanroblesvirtuallawlibrarySummation of the ConCom Deliberations
At this point, we sum up the matters established, based on a careful reading of the ConCom deliberations, as follows:
In their deliberations on what was to become paragraph 4, the framers used the termservice contracts in referring to agreements x x x involving either technical or financial assistance.
They spoke of service contracts as the concept was understood in the 1973 Constitution.
It was obvious from their discussions that they were not about to ban or eradicateservice contracts.
Instead, they were plainly crafting provisions to put in place safeguards that would eliminate or minimize the abuses prevalent during the marital law regime. In brief, they were going to permit service contracts with foreign corporations as contractors, but with safety measures to prevent abuses, as an exception to the general norm established in the first paragraph of Section 2 of Article XII. This provision reserves or limits to Filipino citizens and corporations at least 60 percent of which is owned by such citizens — the exploration, development and utilization of natural resources.
This provision was prompted by the perceived insufficiency of Filipino capital and the felt need for foreign investments in the EDU of minerals and petroleum resources.
The framers for the most part debated about the sort of safeguards that would be considered adequate and reasonable. But some of them, having more "radical" leanings, wanted to ban service contracts altogether; for them, the provision would permit aliens to exploit and benefit from the nation's natural resources, which they felt should be reserved only for Filipinos.
In the explanation of their votes, the individual commissioners were heard by the entire body. They sounded off their individual opinions, openly enunciated their philosophies, and supported or attacked the provisions with fervor. Everyone's viewpoint was heard.
In the final voting, the Article on the National Economy and Patrimony — including paragraph 4 allowing service contracts with foreign corporations as an exception to the general norm in paragraph 1 of Section 2 of the same article — was resoundingly approved by a vote of 32 to 7, with 2 abstentions.
Agreements Involving Technical Or Financial Assistance Are Service Contracts with Safeguards
From the foregoing, we are impelled to conclude that the phrase agreements involving either technical or financial assistance, referred to in paragraph 4, are in fact service contracts. But unlike those of the 1973 variety, the new ones are between foreign corporations acting as contractors on the one hand; and on the other, the government as principal or "owner" of the works. In the new service contracts, the foreign contractors provide capital, technology and technical know-how, and managerial expertise in the creation and operation of large-scale mining/extractive enterprises; and the government, through its agencies (DENR, MGB), actively exercises control and supervision over the entire operation.68cralawlawlibraryIn summarizing the matters discussed in the ConCom, we established that paragraph 4, with the safeguards in place, is the exception to paragraph 1, Section 2 of Article XII. The following are the safeguards this Court enumerated in La Bugal:chanroblesvirtuallawlibrarySuch service contracts may be entered into only with respect to minerals, petroleum and other mineral oils. The grant thereof is subject to several safeguards, among which are these requirements:
(1) The service contract shall be crafted in accordance with a general law that will set standard or uniform terms, conditions and requirements, presumably to attain a certain uniformity in provisions and avoid the possible insertion of terms disadvantageous to the country.
(2) The President shall be the signatory for the government because, supposedly before an agreement is presented to the President for signature, it will have been vetted several times over at different levels to ensure that it conforms to law and can withstand public scrutiny.
(3) Within thirty days of the executed agreement, the President shall report it to Congress to give that branch of government an opportunity to look over the agreement and interpose timely objections, if any.69cralawlawlibraryAdhering to the aforementioned guidelines, this Court finds that SC-46 is indeed null and void for noncompliance with the requirements of the 1987 Constitution.
1. The General Law on Oil Exploration
The disposition, exploration, development, exploitation, and utilization of indigenous petroleum in the Philippines are governed by Presidential Decree No. 87 or the Oil Exploration and Development Act of 1972. This was enacted by then President Ferdinand Marcos to promote the discovery and production of indigenous petroleum through the utilization of government and/or local or foreign private resources to yield the maximum benefit to the Filipino people and the revenues to the Philippine Government.70
Contrary to the petitioners' argument, Presidential Decree No. 87, although enacted in 1972, before the adoption of the 1987 Constitution, remains to be a valid law unless otherwise repealed, to wit:chanroblesvirtuallawlibrary
ARTICLE XVIII - TRANSITORY PROVISIONS
Section 3. All existing laws, decrees, executive orders, proclamations, letters of instructions, and other executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed, or revoked.If there were any intention to repeal Presidential Decree No. 87, it would have been done expressly by Congress. For instance, Republic Act No. 7160, more popularly known as the Local Government Code of 1991, expressly repealed a number of laws, including a specific provision in Presidential Decree No. 87, viz.:chanroblesvirtuallawlibrarySECTION 534. Repealing Clause. — (a) Batas Pambansa Blg. 337, otherwise known as the "Local Government Code," Executive Order No. 112 (1987), and Executive Order No. 319 (1988) are hereby repealed.
(b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees, orders, instructions, memoranda and issuances related to or concerning the barangay are hereby repealed.
(c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding hospital fund; Section 3, a (3) and b (2) of Republic Act No. 5447 regarding the Special Education Fund; Presidential Decree No. 144 as amended by Presidential Decree Nos. 559 and 1741; Presidential Decree No. 231 as amended; Presidential Decree No. 436 as amended by Presidential Decree No. 558; and Presidential Decree Nos. 381, 436, 464, 477, 526, 632, 752, and 1136 are hereby repealed and rendered of no force and effect.
(d) Presidential Decree No. 1594 is hereby repealed insofar as it governs locally-funded projects.
(e) The following provisions are hereby repealed or amended insofar as they are
inconsistent with the provisions of this Code: Sections 2, 16 and 29 of Presidential Decree No. 704; Section 12 of Presidential Decree No. 87, as amended; Sections 52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of Presidential Decree No. 463, as amended; and Section 16 of Presidential Decree No. 972, as amended, and
(f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and administrative regulations, or part or parts thereof which are inconsistent with any of the provisions of this Code are hereby repealed or modified accordingly. (Emphasis supplied.)This Court could not simply assume that while Presidential Decree No. 87 had not yet been expressly repealed, it had been impliedly repealed. As we held in Villareña v. The Commission on Audit,71 "[i]mplied repeals are not lightly presumed." It is a settled rule that when laws are in conflict with one another, every effort must be exerted to reconcile them. In Republic of the Philippines v. Marcopper Mining Corporation,72 we said:chanroblesvirtuallawlibraryThe two laws must be absolutely incompatible, and a clear finding thereof must surface, before the inference of implied repeal may be drawn. The rule is expressed in the maxim, interpretare et concordare leqibus est optimus interpretendi, i.e., every statute must be so interpreted and brought into accord with other laws as to form a uniform system of jurisprudence. The fundament is that the legislature should be presumed to have known the existing laws on the subject and not have enacted conflicting statutes. Hence, all doubts must be resolved against any implied repeal, and all efforts should be exerted in order to harmonize and give effect to all laws on the subject. (Citation omitted.)Moreover, in cases where the statute seems to be in conflict with the Constitution, but a construction that it is in harmony with the Constitution is also possible, that construction should be preferred.73This Court, in Pangandaman v. Commission on Elections74 expounding on this point, pronounced:chanroblesvirtuallawlibraryIt is a basic precept in statutory construction that a statute should be interpreted in harmony with the Constitution and that the spirit, rather than the letter of the law determines its construction; for that reason, a statute must be read according to its spirit and intent, x x x. (Citation omitted.)Consequently, we find no merit in petitioners' contention that SC-46 is prohibited on the ground that there is no general law prescribing the standard or uniform terms, conditions, and requirements for service contracts involving oil exploration and extraction.
But note must be made at this point that while Presidential Decree No. 87 may serve as the general law upon which a service contract for petroleum exploration and extraction may be authorized, as will be discussed below, the exploitation and utilization of this energy resource in the present case may be allowed only through a law passed by Congress, since the Tañon Strait is a NIPAS75 area.
2. President was not the signatory to SC-46 and the same was not submitted to Congress
While the Court finds that Presidential Decree No. 87 is sufficient to satisfy the requirement of a general law, the absence of the two other conditions, that the President be a signatory to SC-46, and that Congress be notified of such contract, renders it null and void.
As SC-46 was executed in 2004, its terms should have conformed not only to the provisions of Presidential Decree No. 87, but also to those of the 1987 Constitution. The Civil Code provides:chanroblesvirtuallawlibraryARTICLE 1306. The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy. (Italics ours.)In Heirs of San Miguel v. Court of Appeals,76 this Court held that:chanroblesvirtuallawlibraryIt is basic that the law is deemed written into every contract. Although a contract is the law between the parties, the provisions of positive law which regulate contracts are deemed written therein and shall limit and govern the relations between the parties, x x x. (Citations omitted.)Paragraph 4, Section 2, Article XII of the 1987 Constitution requires that the President himself enter into any service contract for the exploration of petroleum. SC-46 appeared to have been entered into and signed only by the DOE through its then Secretary, Vicente S. Perez, Jr., contrary to the said constitutional requirement. Moreover, public respondents have neither shown nor alleged that Congress was subsequently notified of the execution of such contract.
Public respondents' implied argument that based on the "alter ego principle," their acts are also that of then President Macapagal-Arroyo's, cannot apply in this case. In Joson v. Torres,77 we explained the concept of the alter ego principle or the doctrine of qualified political agency and its limit in this wise:chanroblesvirtuallawlibraryUnder this doctrine, which recognizes the establishment of a single executive, all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the Secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive presumptively the acts of the Chief Executive. (Emphasis ours, citation omitted.)While the requirements in executing service contracts in paragraph 4, Section 2 of Article XII of the 1987 Constitution seem like mere formalities, they, in reality, take on a much bigger role. As we have explained in La Bugal, they are the safeguards put in place by the framers of the Constitution to "eliminate or minimize the abuses prevalent during the martial law regime."78 Thus, they are not just mere formalities, which will only render a contract unenforceable but not void, if not complied with. They are requirements placed, not just in an ordinary statute, but in the fundamental law, the non-observance of which will nullify the contract. Elucidating on the concept of a "constitution," this Court, in Manila Prince Hotel v. Government Service Insurance System,79 held:chanroblesvirtuallawlibraryA constitution is a system of fundamental laws for the governance and administration of a nation. It is supreme, imperious, absolute and unalterable except by the authority from which it emanates. It has been defined as the fundamental and paramount law of the nation. It prescribes the permanent
framework of a system of government, assigns to the different departments their respective powers and duties, and establishes certain fixed principles on which government is founded. The fundamental conception in other words is that it is a supreme law to which all other laws must conform and in accordance with which all private rights must be determined and all public authority administered. Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the constitution that law or contract whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes is null and void and without any force and effect. Thus,since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract. (Emphasis ours.)As this Court has held in La Bugal, our Constitution requires that the President himself be the signatory of service agreements with foreign-owned corporations involving the exploration, development, and utilization of our minerals, petroleum, and other mineral oils. This power cannot be taken lightly.
In this case, the public respondents have failed to show that the President had any participation in SC-46. Their argument that their acts are actually the acts of then President Macapagal-Arroyo, absent proof of her disapproval, must fail as the requirement that the President herself enter into these kinds of contracts is embodied not just in any ordinary statute, but in the Constitution itself. These service contracts involving the exploitation, development, and utilization of our natural resources are of paramount interest to the present and future generations. Hence, safeguards were put in place to insure that the guidelines set by law are meticulously observed and likewise to eradicate the corruption that may easily penetrate departments and agencies by ensuring that the President has authorized or approved of these service contracts herself.
Even under the provisions of Presidential Decree No. 87, it is required that the Petroleum Board, now the DOE, obtain the President's approval for the execution of any contract under said statute, as shown in the following provision:chanroblesvirtuallawlibrarySECTION 5. Execution of contract authorized in this Act. - Every contract herein authorized shall, subject to the approval of the President, be executed by the Petroleum Board created in this Act, after due public notice pre-qualification and public bidding or concluded through negotiations. In case bids are requested or if requested no bid is submitted or the bids submitted are rejected by the Petroleum Board for being disadvantageous to the Government, the contract may be concluded through negotiation.
In opening contract areas and in selecting the best offer for petroleum operations, any of the following alternative procedures may be resorted to by the Petroleum Board, subject to prior approval of the President [.]Even if we were inclined to relax the requirement in La Bugal to harmonize the 1987 Constitution with the aforementioned provision of Presidential Decree No. 87, it must be shown that the government agency or subordinate official has been authorized by the President to enter into such service contract for the government. Otherwise, it should be at least shown that the President subsequently approved of such contract explicitly. None of these circumstances is evident in the case at bar.chanRoblesvirtualLawlibrary
Service Contract No. 46 vis-a-vis Other Laws
Petitioners in G.R. No. 180771 claim that SC-46 violates Section 27 of Republic Act. No. 9147 or the Wildlife Resources Conservation and Protection Act, which bans all marine exploration and exploitation of oil and gas deposits. They also aver that Section 14 of Republic Act No. 7586 or the National Integrated Protected Areas System Act of 1992 (NIPAS Act), which allows the exploration of protected areas for the purpose of information-gathering, has been repealed by Section 27 of Republic Act No. 9147. The said petitioners further claim that SC-46 is anathema to Republic Act No. 8550 or the Philippine Fisheries Code of 1998, which protects the rights of the fisherfolk in the preferential use of municipal waters, with the exception being limited only to research and survey activities.80
The FIDEC, for its part, argues that to avail of the exceptions under Section 14 of the NIPAS Act, the gathering of information must be in accordance with a DENR-approved program, and the exploitation and utilization of energy resources must be pursuant to a general law passed by Congress expressly for that purpose. Since there is neither a DENR-approved program nor a general law passed by Congress, the seismic surveys and oil drilling operations were all done illegally.81 The FIDEC likewise contends that SC-46 infringes on its right to the preferential use of the communal fishing waters as it is denied free access within the prohibited zone, in violation not only of the Fisheries Code but also of the 1987 Constitutional provisions on subsistence fisherfolk and social justice.82 Furthermore, the FIDEC believes that the provisions in Presidential Decree No. 87, which allow offshore drilling even in municipal waters, should be deemed to have been rendered inoperative by the provisions of Republic Act No. 8550 and Republic Act No. 7160, which reiterate the social justice provisions of the Constitution.83
The public respondents invoke the rules on statutory construction and argue that Section 14 of the NIPAS Act is a more particular provision and cannot be deemed to have been repealed by the more general prohibition in Section 27 of Republic Act No. 9147. They aver that Section 14, under which SC-46 falls, should instead be regarded as an exemption to Section 27.84
Addressing the claim of petitioners in G.R. No. 180771 that there was a violation of Section 27 of Republic Act No. 9147, the public respondents assert that what the section prohibits is the exploration of minerals, which as defined in the Philippine Mining Act of 1995, exclude energy materials such as coal, petroleum, natural gas, radioactive materials and geothermal energy. Thus, since SC-46 involves oil and gas exploration, Section 27 does not apply.85
The public respondents defend the validity of SC-46 and insist that it does not grant exclusive fishing rights to JAPEX; hence, it does not violate the rule on preferential use of municipal waters. Moreover, they allege that JAPEX has not banned fishing in the project area, contrary to the FIDEC's claim. The public respondents also contest the attribution of the declining fish catch to the seismic surveys and aver that the allegation is unfounded. They claim that according to the Bureau of Fisheries and Aquatic Resources' fish catch data, the reduced fish catch started in the 1970s due to destructive fishing practices.86
Ruling of the CourtOn the legality of Service Contract No. 46 vis-a-vis Other Laws
Although we have already established above that SC-46 is null and void for being violative of the 1987 Constitution, it is our duty to still rule on the legality of SC-46 vis-a-vis other pertinent laws, to serve as a guide for the Government when executing service contracts involving not only the Tañon Strait, but also other similar areas. While the petitioners allege that SC-46 is in violation of several laws, including international ones, their arguments focus primarily on the protected status of the Tañon Strait, thus this Court will concentrate on those laws that pertain particularly to the Tañon Strait as a protected seascape.
The Tañon Strait is a narrow passage of water bounded by the islands of Cebu in the East and Negros in the West. It harbors a rich biodiversity of marine life, including endangered species of dolphins and whales. For this reason, former President Fidel V. Ramos declared the Tañon Strait as a protected seascape in 1998 by virtue of Proclamation No. 1234 - Declaring the Tañon Strait situated in the Provinces of Cebu, Negros Occidental and Negros Oriental as a Protected Area pursuant to the NIP AS Act and shall be known as Tañon Strait Protected Seascape. During former President Joseph E. Estrada's time, he also constituted the Tañon Strait Commission via Executive Order No. 76 to ensure the optimum and sustained use of the resources in that area without threatening its marine life. He followed this with Executive Order No. 177,87 wherein he included the mayor of Negros Occidental Municipality/City as a member of the Tañon Strait Commission, to represent the LGUs concerned. This Commission, however, was subsequently abolished in 2002 by then President Gloria Macapagal-Arroyo, via Executive Order No. 72.88
True to the constitutional policy that the "State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature,"89 Congress enacted the NIPAS Act to secure the perpetual existence of all native plants and animals through the establishment of a comprehensive system of integrated protected areas. These areas possess common ecological values that were incorporated into a holistic plan representative of our natural heritage. The system encompasses outstandingly remarkable areas and biologically important public lands that are habitats of rare and endangered species of plants and animals, biogeographic zones and related ecosystems, whether terrestrial, wetland, or marine.90 It classifies and administers all the designated protected areas to maintain essential ecological processes and life-support systems, to preserve genetic diversity, to ensure sustainable use of resources found therein, and to maintain their natural conditions to the greatest extent possible.91 The following categories of protected areas were established under the NIPAS Act:chanroblesvirtuallawlibrary
a. Strict nature reserve;
b. Natural park;c. Natural monument;d. Wildlife sanctuary;
e. Protected landscapes and seascapes;f. Resource reserve;g. Natural biotic areas; andh. Other categories established by law, conventions or international agreements
which the Philippine Government is a signatory.92
Under Section 4 of the NIPAS Act, a protected area refers to portions of land and water, set aside due to their unique physical and biological significance, managed to enhance biological diversity and protected against human exploitation.
The Tañon Strait, pursuant to Proclamation No. 1234, was set aside and declared a protected area under the category of Protected Seascape. The NIPAS Act defines a Protected Seascape to be an area of national significance characterized by the harmonious interaction of man and land while providing opportunities for public enjoyment through recreation and tourism within the normal lifestyle and economic activity of this areas;93 thus a management plan for each area must be designed to protect and enhance the permanent preservation of its natural conditions.94 Consistent with this endeavor is the requirement that an Environmental Impact Assessment (EIA) be made prior to undertaking any activity outside the scope of the management plan. Unless an ECC under the EIA system is obtained, no activity inconsistent with the goals of the NIPAS Act shall be implemented.95
The Environmental Impact Statement System (EISS) was established in 1978 under Presidential Decree No. 1586. It prohibits any person, partnership or corporation from undertaking or operating any declared environmentally critical project or areas without first securing an ECC issued by the President or his duly authorized representative.96 Pursuant to the EISS, which called for the proper management of environmentally critical areas,97 Proclamation No. 214698 was enacted, identifying the areas and types of projects to be considered as environmentally critical and within the scope of the EISS, while DENR Administrative Order No. 2003-30 provided for its Implementing Rules and Regulations (IRR).
DENR Administrative Order No. 2003-30 defines an environmentally critical area as "an area delineated as environmentally sensitive such that significant environmental impacts are expected if certain types of proposed projects or programs are located, developed, or implemented in it";99 thus, before a project, which is "any activity, regardless of scale or magnitude, which may have significant impact on the environment,"100 is undertaken in it, such project must undergo an EIA to evaluate and predict the likely impacts of all its stages on the environment.101 An EIA is described in detail as follows:chanroblesvirtuallawlibraryh. Environmental Impact Assessment (EIA) - process that involves evaluating and
predicting the likely impacts of a project (including cumulative impacts) on the environment during construction, commissioning, operation and abandonment. It also includes designing appropriate preventive, mitigating and enhancement measures addressing these consequences to protect the environment and the community's welfare. The process is undertaken by, among others, the project proponent and/or EIA Consultant, EMB, a Review Committee, affected
communities and other stakeholders.102
Under Proclamation No. 2146, the Tañon Strait is an environmentally critical area, having been declared as a protected area in 1998; therefore, any activity outside the scope of its management plan may only be implemented pursuant to an ECC secured after undergoing an EIA to determine the effects of such activity on its ecological system.
The public respondents argue that they had complied with the procedures in obtaining an ECC103 and that SC-46 falls under the exceptions in Section 14 of the NIPAS Act, due to the following reasons:
1) The Tañon Strait is not a strict nature reserve or natural park;
2) Exploration is only for the purpose of gathering information on possible energy resources; and
3) Measures are undertaken to ensure that the exploration is being done with the least damage to surrounding areas.104
We do not agree with the arguments raised by the public respondents.
Sections 12 and 14 of the NIPAS Act read:chanroblesvirtuallawlibrarySECTION 12. Environmental Impact Assessment. - Proposals for activities which are outside the scope of the management plan for protected areas shall be subject to an environmental impact assessment as required by law before they are adopted, and the results thereof shall be taken into consideration in the decision-making process.
No actual implementation of such activities shall be allowed without the required Environmental Compliance Certificate (ECC) under the Philippine Environmental Impact Assessment (EIA) system. In instances where such activities are allowed to be undertaken, the proponent shall plan and carry them out in such manner as will minimize any adverse effects and take preventive and remedial action when appropriate. The proponent shall be liable for any damage due to lack of caution or indiscretion.
SECTION 14. Survey for Energy Resources. - Consistent with the policies declared in Section 2 hereof, protected areas, except strict nature reserves and natural parks, may be subjected to exploration only for the purpose of gathering information on energy resources and only if such activity is carried out with the least damage to surrounding areas. Surveys shall be conducted only in accordance with a program approved by the DENR, and the result of such surveys shall be made available to the public and submitted to the President for recommendation to Congress. Any exploitation and utilization of energy resources found within NIPAS areas shall be allowed only through a law passed by Congress.It is true that the restrictions found under the NIPAS Act are not without exceptions. However, while an exploration done for the purpose of surveying for energy resources is allowed under Section 14 of the NIPAS Act, this does not mean that it is exempt from the requirement to undergo an EIA
under Section 12. In Sotto v. Sotto,105 this Court explained why a statute should be construed as a whole:chanroblesvirtuallawlibraryA statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent. Consequently each part or section should be construed in connection with every other part or section and so as to produce a harmonious whole. It is not proper to confine the attention to the one section to be construed. It is always an unsafe way of construing a statute or contract to divide it by a process of etymological dissection, into separate words, and then apply to each, thus separated from its context, some particular definition given by lexicographers, and then reconstruct the instrument upon the basis of these definitions. An instrument must always be construed as a whole, and the particular meaning to be attached to any word or phrase is usually to be ascertained from the context, the nature of the subject treated of and the purpose or intention of the parties who executed the contract, or of the body which enacted or framed the statute or constitution, x x x.Surveying for energy resources under Section 14 is not an exemption from complying with the EIA requirement in Section 12; instead, Section 14 provides for additional requisites before any exploration for energy resources may be done in protected areas.
The rationale for such additional requirements are incorporated in Section 2 of the NIPAS Act, to wit:chanroblesvirtuallawlibrarySECTION 2. Declaration of Policy - Cognizant of the profound impact of man's activities on all components of the natural environment particularly the effect of increasing population, resource exploitation and industrial advancement amd recognizing the critical importance of protecting and maintaining the natural biological and physical diversities of the environment notably on areas with biologically unique features to sustain human life and development, as well as plant and animal life, it is hereby declared the policy of the State to secure for the Filipino people of present and future generations the perpetual existence of all native plants and animals through the establishment of a comprehensive system of integrated protected areas within the classification of national park as provided for in the Constitution.
It is hereby recognized that these areas, although distinct in features, possess common ecological values that may be incorporated into a holistic plan representative of our natural heritage; that effective administration of this area is possible only through cooperation among national government, local government and concerned private organizations; that the use and enjoyment of these protected areas must be consistent with the principles of biological diversity and sustainable development.
To this end, there is hereby established a National Integrated Protected Areas System (NIPAS), which shall encompass outstandingly remarkable areas and biologically important public lands that are habitats of rare and endangered species of plants and animals, biogeographic zones and related ecosystems, whether terrestrial, wetland or marine, all of which shall be designated as "protected areas."The public respondents themselves admitted that JAPEX only started to secure an ECC prior to the second sub-phase of SC-46, which required the drilling of an oil exploration well. This means that when the seismic surveys were done in the Tañon Strait, no such environmental impact evaluation was done. Unless seismic surveys
are part of the management plan of the Tañon Strait, such surveys were dona in violation of Section 12 of the NIPAS Act and Section 4 of Presidential Decree No. 1586, which provides:chanroblesvirtuallawlibrarySection 4. Presidential Proclamation of Environmentally Critical Areas and Projects. - The President of the Philippines may, on his own initiative or upon recommendation of the National Environmental Protection Council, by proclamation declare certain projects, undertakings or areas in the country as environmentally critical. No person, partnership or corporation shall undertake or operate any such declared environmentally critical project or area without first securing an Environmental Compliance Certificate issued by the President or his duly authorized representative. For the proper management of said critical project or area, the President may by his proclamation reorganize such government offices, agencies, institutions, corporations or instrumentalities including the re-alignment of government personnel, and their specific functions and responsibilities.
For the same purpose as above, the Ministry of Human Settlements shall: (a) prepare the proper land or water use pattern for said critical project(s) or area(s); (b) establish ambient environmental quality standards; (c) develop a program of environmental enhancement or protective measures against calamitous factors such as earthquakes, floods, water erosion and others, and (d) perform such other functions as may be directed by the President from time to time.The respondents' subsequent compliance with the EISS for the second sub-phase of SC-46 cannot and will not cure this violation. The following penalties are provided for under Presidential Decree No. 1586 and the NIPAS Act.
Section 9 of Presidential Decree No. 1586 provides for the penalty involving violations of the ECC requirement:chanroblesvirtuallawlibrarySection 9. Penalty for Violation. - Any person, corporation or partnership found violating Section 4 of this Decree, or the terms and conditions in the issuance of the Environmental Compliance Certificate, or of the standards, rules and regulations issued by the National Environmental Protection Council pursuant to this Decree shall be punished by the suspension or cancellation of his/its certificates and/or a fine in an amount not to exceed Fifty Thousand Pesos (P50,000.00) for every violation thereof, at the discretion of the National Environmental Protection Council. (Emphasis supplied.)Violations of the NIPAS Act entails the following fines and/or imprisonment under Section 21:chanroblesvirtuallawlibrarySECTION 21. Penalties. - Whoever violates this Act or any rules and regulations issued by the Department pursuant to this Act or whoever is found guilty by a competent court of justice of any of the offenses in the preceding section shall be fined in the amount of not less than Five thousand pesos (P5,000) nor more than Five hundred thousand pesos (P500,000), exclusive of the value of the thing damaged or imprisonment for not less than one (1) year but not more than six (6) years, or both, as determined by the court: Provided, that, if the area requires rehabilitation or restoration as determined by the court, the offender shall be required to restore or compensate for the restoration to the damages: Provided, further, that court shall order the eviction of the offender from the land and the forfeiture in favor of the Government of all minerals, timber or any species collected or removed including all equipment, devices and firearms used in connection
therewith, and any construction or improvement made thereon by the offender. If the offender is an association or corporation, the president or manager shall be directly responsible for the act of his employees and laborers: Provided, finally, that the DENR may impose administrative fines and penalties consistent with this Act. (Emphases supplied.)Moreover, SC-46 was not executed for the mere purpose of gathering information on the possible energy resources in the Tañon Strait as it also provides for the parties' rights and obligations relating to extraction and petroleum production should oil in commercial quantities be found to exist in the area. While Presidential Decree No. 87 may serve as the general law upon which a service contract for petroleum exploration and extraction may be authorized, the exploitation and utilization of this energy resource in the present case may be allowed only through a law passed by Congress, since the Tañon Strait is a NIPAS area.106Since there is no such law specifically allowing oil exploration and/or extraction in the Tañon Strait, no energy resource exploitation and utilization may be done in said protected seascape.
In view of the foregoing premises and conclusions, it is no longer necessary to discuss the other issues raised in these consolidated petitions.cralawred
WHEREFORE, the Petitions in G.R. Nos. 180771 and 181527 are GRANTED, Service Contract No. 46 is hereby declared NULL AND VOID for violating the 1987 Constitution, Republic Act No. 7586, and Presidential Decree No. 1586.
SO ORDERED.chanroblesvirtuallawlibrary
Sereno, C. J., Carpio, Velasco, Jr., Brion, Peralta, Bersamin, Del Castillo, Villarama, Jr., Perez, Mendoza, Reyes, and Perlas-Bernabe, JJ., concur.Leonen, J., see concurring opinion.Jardeleza, J., no part prior OSG action
Resident Marine Mammals of the Protected Seascape Tañon Strait v. Secretary Angelo
ReyesYear: 2015
Country: Phillippines
Region: Pacific
Topics: Access to JusticeCoastal and MarineOil and GasProcedural Issues
Summary:
The Supreme Court of the Republic of the Philippines ruled that a service contract for oil exploration, development, and production issued by the government of the Philippines in the protected area of the Tañon Strait was unconstitutional.
Case Note: Resident Marine Mammals of the Protected Seascape Tañon Strait v. Secretary Angelo Reyes, G.R. No. 180771 (April 21, 2015)Supreme Court of the Philippines
Two sets of petitioners filed separate cases challenging the legality of Service Contract No. 46 (SC-46) awarded to Japan Petroleum Exploration Co. (JAPEX). The service contract allowed JAPEX to conduct oil exploration in the Tañon Strait during which it performed seismic surveys and drilled one exploration well. The first petition was brought on behalf of resident marine mammals in the Tañon Strait by two individuals acting as legal guardians and stewards of the marine mammals. The second petition was filed by a non-governmental organization representing the interests of fisherfolk, along with individual representatives from fishing communities impacted by the oil exploration activities. The petitioners filed their cases in 2007, shortly after JAPEX began drilling in the strait. In 2008, JAPEX and the government of the Philippines mutually terminated the service contract and oil exploration activities ceased. The Supreme Court consolidated the cases for the purpose of review.
In its decision, the Supreme Court first addressed the important procedural point of whether the case was moot because the service contract had been terminated. The Court declared that mootness is “not a magical formula that can automatically dissuade the courts in resolving a case.” Id., p. 12. Due to the alleged grave constitutional violations and paramount public interest in the case, not to mention the fact that the actions complained of could be repeated, the Court found it necessary to reach the merits of the case even though the particular service contract had been terminated. Id.
Reviewing the numerous claims filed by the petitioners, the Supreme Court narrowed them down to two: 1) whether marine mammals, through their stewards, have legal standing to pursue the case; and 2) whether the service contract violated the Philippine Constitution or other domestic laws. Id., p. 11.
As to standing, the Court declined to extend the principle of standing beyond natural and juridical persons, even though it recognized that the current trend in Philippine jurisprudence “moves towards simplification of procedures and facilitating court access in environmental cases.” Id., p. 15. Instead, the Court explained, “the need to give the Resident Marine Mammals legal standing has been eliminated by our Rules, which allow any Filipino citizen, as a steward of nature, to bring a suit to enforce our environmental laws.” Id., p. 16-17.
The Court then held that while SC-46 was authorized Presidential Decree No. 87 on oil extraction, the contract did not fulfill two additional constitutional requirements. Section 2 Article XII of the 1987 Constitution requires a service contract for oil exploration and extraction to be signed by the president and reported to congress. Because the JAPEX contract was executed solely by the Energy Secretary, and not reported to the Philippine congress, the Court held that it was unconstitutional. Id., pp. 24-25.
In addition, the Court also ruled that the contract violated the National Integrated Protected Areas System Act of 1992 (NIPAS Act), which generally prohibits exploitation of natural resources in protected areas. In order to explore for resources in a protected area, the exploration must be performed in accordance with an environmental impact assessment (EIA). The Court noted that JAPEX started the seismic surveys before any EIA was performed; therefore its activity was unlawful. Id., pp. 33-34. Furthermore, the Tanon Strait is a NIPAS area, and exploration and utilization of energy resources can only be authorized through a law passed by the Philippine Congress. Because Congress had not specifically authorized the activity in Tañon Strait, the Court declared that no energy exploration should be permitted in that area. Id., p. 34.
CEBU CITY, Philippines—People used to laugh at him for having dolphins and sea mammals for clients in 2007.But after almost eight years of court battle, environmental lawyer Benjamin Cabrido Jr., had the last laugh.The Supreme Court on Tuesday declared unconstitutional the “oil exploration, development and exploitation of petroleum resources” by Japan Petroleum Exploration Co. Ltd. (Japex) in Tañon Strait, which lies between the islands of Cebu and Negros.
Cabrido said the oil exploration in the strait from late 2007 until early 2008 affected dolphins and other marine species in the area, while the drilling damaged the protected seascape and displaced the fishermen.“A lot of dolphins are in that area,” the lawyer explained. “During the oil exploration, they moved to another location,” he added.In a decision penned by Associate Justice Teresita Leonardo-De Castro, the high court nullified the service contract awarded by the Department of Energy (DOE) to Japex for oil exploration and drilling.The court also ruled that the contract violated Republic Act No. 7586, or the National Integrated Protected Areas System (Nipas) Act of 1992. Tañon Strait is considered an environmentally critical area, where exploitation of natural resources is restrictedRespondentsIn the case labeled Resident Marine Mammals of the Protected Seascape Tañon Strait et al. v. Secretary Angelo Reyes et al., also named respondents were former Environment Secretary Lito Atienza, former Agriculture Secretary Arthur Yap, Leonardo Sibbaluca of the Department of Environment and Natural Resources Central Visayas and Japex, represented by its Philippine agent, Supply Oilfield Services.Ecology lawyers Gloria Estenzo-Ramos and Liza Osorio joined Cabrido in filing the case on behalf of the dolphins, toothed whales, porpoises and other cetacean species in Tañon Strait.When Cabrido filed the case on his birthday on Dec. 20, 2007, people ridiculed him and said the case would not prosper.“There were questions raised on the legal standing of dolphins,” he recalled. “But then, I felt confident because I knew the oil exploration in Tañon Strait was absolutely unconstitutional,” he added.The high court initially said dolphins and other sea mammals have no legal personality to sue, the lawyer said, but as guardians of the marine species, they eventually gave due course to the merits of the case.DumbfoundedWhen Cabrido learned he won the landmark case on Tuesday night, he was dumbfounded. It was the first time that marine mammals won a court case in the Philippines, he said.“Now, vindication comes,” said the lawyer from the Philippine Earth Justice Center (PEJC).It’s a victory shared with dolphins and sea mammals, Cabrido said. “They too won in the lawsuit.”The high court’s ruling should serve as a lesson to those who intend to disrupt marine ecology through illegal means, Cabrido said of the decision that was more of a moral victory than a material one. Japex had voluntarily relinquished the oil drilling project in 2008, reportedly due to the lack of commercial oil and gas on the site, the lawyer said.
BAGUIO CITY, Philippines—For the sake of endangered dolphins, whales and other marine mammals, the Supreme Court on Tuesday struck down as unconstitutional, a deal between the Department of Energy (DOE) and a Japanese firm for oil “exploration, development and exploitation” in Tañon Strait, an “environmentally critical area” between the islands of Cebu and Negros.In a unanimous vote, the high court declared as null and void Service Contract No. 46 (SC 46) between the DOE and the Japan Petroleum Exploration Co. (Japex) for oil exploration activities in the protected waters that was signed in 2004.The high court ruled that SC 46 was in violation of Republic Act No. 7586, or the National Integrated Protected Areas System Act of 1992 (Nipas), which deemed Tañon Strait to be a critical area.
According to the high tribunal, there were safeguards covering such service contracts in the Constitution but which SC 46 failed to comply with—authority by general law, a signature by the President and reporting to Congress.“[B]ecause Tañon Strait is a Nipas area, the exploitation and utilization of this energy resource may be allowed only through a law passed by Congress,” court spokesperson Theodore Te told a press briefing here yesterday.“[A]ny activity outside the scope of its management plan may only be implemented pursuant to an environmental compliance certificate secured after undergoing an environmental impact assessment to determine the effects of such activity on its ecological system,” the high court ruled.Tañon Strait is a narrow body of water between Negros and Cebu islands which “harbors a rich biodiversity of marine life, including endangered species of dolphins and whales,” the high court said.Former President Fidel Ramos declared the waters a “protected seascape” in 1998. President Joseph Estrada, who succeeded Ramos, issued an executive order “to ensure the optimum and sustained use of the resources in the area without threatening its marine life.”Estrada also created a commission representing local government units where the waters lie. The commission was later abolished through an executive order by President Gloria Macapagal-Arroyo.The high court also said that while Presidential DecreeNo. 87, a 1972 law, provides for “the discovery and production of indigenous petroleum,” the Nipas Act “specifically requires a law passed by Congress before exploitation in a Nipas area may be done.”Te said the court “considered the legality of SC 46 in relation to Section 2, Article 12 of the 1987 Constitution,” which mandates the state “to protect the nation’s marine wealth.”The provision also provides that only the President, with notification to Congress, may enter into development contracts with foreign firms “based on real contributions to the economic growth and welfare of the country.”The ruling was in response to petitions separately filed through counsel by the Resident Marine Mammals of the Protected Seascape Tañon Strait—the marine mammals themselves—and the Central Visayan Fisherfolk Development Center against the then Secretary of Energy and Japex, among other respondents.While it issued a favorable ruling, the court noted that “only humans have [the] personality to sue.”
A novel lawsuit filed by Cebu lawyers on behalf of dolphins, whales and other marine mammals to protect the Tañon Strait seven years ago scored a victory.The Supreme Court in a unanimous decision yesterday struck down as unconstitutional the service contract granted in 2004 to Japan Petroleum Exploration Co. Ltd. (Japex) for oil exploration and drilling in the Tañon Strait.The narrow body of water between the islands of Cebu and Negros is the largest protected seascape in the country.
The court, however, also ruled that dolphins and other marine animals have no legal personality to sue.“Only humans have personality to sue,” said the Supreme Court’s public information office.The ruling is deemed moot and academic after Japex pulled out of the Tañon Strait in 2008 “for lack of commercial oil and gas deposits” in the area.Japex conducted the exploratory drilling from late 2007 until early 2008.Cebu environment advocates strongly opposed it and local fishermen complained that their fish catch declined due to the disturbance in the sea.Tañon Strait was declared a protected seascape in 1998 by President Fidel V. Ramos through Proclamation No. 1234 to protect its marine resources, including endangered species of dolphins and whales.In a decision penned by Associate Justice Teresita Leonardo de Castro, the High Court nullified Service Contract 46 (SC-46) because it failed to comply with constitutional safeguards.The court noted that the contract was signed only by then Energy Secretary Vincent Perez Jr. and not by the President. Neither was the contract submitted to Congress.The 1987 Constitution requires that a service contract be authorized by a general law, signed by the President, and reported to Congress.The court also ruled that the contract violated Republic Act Number 7586 or the National Integrated Protected Areas System (NIPAS) Act of 1992. Tañon Strait is considered an environmentally critical area, where exploitation of natural resources is restricted.\READ: Summit pushes for Tañon Strait plan after 17 years of waitingCebu lawyer Gloria Estenzo-Ramos, one of the petitioners, representing the marine mammals, hailed the SC decision as a landmark ruling that would compel government agencies to follow the rule of law.“I’m happy about the decision, except that the Supreme Court is not yet ready to appreciate the legal standing to sue of the environment. They are still stuck with traditional (parameters),” she said in an interview.Ramos filed the case with colleagues Benjamin Cabrido and Liza Osorio in 2007.Ramos is now vice president of Oceana-Philippines, an international NGO dedicated to marine conservation.Cabrido recalled how people laughed at him for filing suit on behalf of dolphins.
Hammerhead sharks are some of the endangered species found in the Tañon Strait between Cebu and Negros islands. Photo courtesy of OCEANA.“This victory is not for me but for all those who expressed concern about the welfare of our marine mammals,” he said.Vince Cinches of Greenpeace , who said the court should consider that nature has a legal right, welcomed the decision: This a good reason to celebrate Earth Day.”Marine biologist Lemuel Aragones, who added his expert voice in the controversy in 2008, said the drilling affected the surface behavior of the population of cetaceans, which refers to species that include dolphins, porpoises and toothed whales, in the Tañon Strait.The court case was labeled Resident Marine Mammals of the Protected Seascape Tañon Strait, et al. vs. Secretary Angelo Reyes et. al.Named respondents were former Energy secretary Angelo Reyes, former Environment secretary Jose Atienza, former Agriculture Secretary Arthur C. Yap, Leonardo Sibbaluca of DENR 7, and Japex, represented by its Philippine agent, Supply Oilfield Services.
Environmental Defenders Score Big SC Ruling for Tañon Strait CetaceansPosted on May 14, 2015
Foundation for the Philippine Environment (FPE) Chair and CEO Atty. Rose Liza E. Osorio, together with fellow environmental lawyers, Atty. Gloria Estenzo-Ramos (Oceana vice president) and Atty. Benjamin Cabrido, Jr., recently earned a critical Supreme Court (SC) ruling on behalf of the dolphins and other resident cetaceans of Tañon Strait, thus protecting them and their natural habitat from further “oil exploration, development, and exploitation of petroleum resources” by Japan Petroleum Exploration Co. Ltd. (JAPEX).
On April 21, 2015, the high court made a decision on the case labeled Resident Marine Mammals of the Protected Seascape Tañon Strait et al. v. Secretary Angelo Reyes et al., ruling in favor of the former. The SC declared unconstitutional the oil exploration operations on the Strait, a rich cetacean habitat located between the islands of Cebu and Negros. As a result, the service contract that the Department of Energy (DOE), then under the leadership of Sec. Reyes, awarded to JAPEX in late 2004 was nullified.
Spinner dolphins (Stenella longirostris) are among the cetaceans that make Tañon Strait a rich biodiversity center. (Steve de Neef)
According to Cabrido, exploratory drilling operations conducted by JAPEX in late 2007 until early 2008 displaced dolphins and other marine species in the area, causing them to move away from their natural territory. Drilling operations also damaged the protected seascape and likewise displaced and affected the livelihood resource of over 40,000 local fisherfolk.
This decision marks “the first time that marine mammals won a court case in the Philippines,” he says further. When the case was first filed in December 2007, the lawyer was mocked for being filed on behalf of “toothed whales, dolphins, porpoises, and other cetacean species.”
Estenzo-Ramos noted that the development is a “landmark ruling which should prevent any project which destroys the ecological integrity especially of a protected seascape."
The Supreme Court also ruled that the contract is in violation of the National Integrated Protected Areas System (NIPAS) Act of 1992 (Republic Act No. 7586), which protects critical natural habitats such as Tañon Strait from resource exploitation.
In 2007, one of the pioneer actions in the campaign against the operations of JAPEX in the Tañon Strait protected seascape was the project, “Urgent Environmental Legal Action Against Oil Exploration in the Visayas”, an initiative of the Central Visayas Fisherfolk Development Center (FIDEC) funded through small grant awarded by FPE.
EN BANC
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.
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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.
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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.
D E C I S I O N
PERLAS-BERNABE, J.:
"Experience is the oracle of truth."1
-James Madison
Before the Court are consolidated petitions2 taken under Rule 65 of the Rules of Court, all of which assail the constitutionality of the Pork Barrel System. Due to the complexity of the subject matter, the Court shall heretofore discuss the system‘s conceptual underpinnings before detailing the particulars of the constitutional challenge.
The Facts
I. Pork Barrel: General Concept.
"Pork Barrel" is political parlance of American -English origin.3 Historically, its usage may be traced to the degrading ritual of rolling out a barrel stuffed with pork to a multitude of black slaves who would cast their famished bodies into the porcine feast to assuage their hunger with morsels coming from the generosity of their well-fed master.4 This practice was later compared to the actions of American legislators in trying to direct federal budgets in favor of their districts.5 While the advent of refrigeration has made the actual pork barrel obsolete, it persists in reference to political bills that "bring home the bacon" to a legislator‘s district and constituents.6 In a more technical sense, "Pork Barrel" refers to an appropriation of government spending meant for localized projects and secured solely or primarily to bring money to a representative's district.7 Some scholars on the subject further use it to refer to legislative control of local appropriations.8
In the Philippines, "Pork Barrel" has been commonly referred to as lump-sum, discretionary funds of Members of the Legislature,9 although, as will be later discussed, its usage would evolve in reference to certain funds of the Executive.
II. History of Congressional Pork Barrel in the Philippines.
A. Pre-Martial Law Era (1922-1972).
Act 3044,10 or the Public Works Act of 1922, is considered11 as the earliest form of "Congressional Pork Barrel" in the Philippines since the utilization of the funds appropriated therein were subjected to post-enactment legislator approval. Particularly, in the area of fund release, Section 312 provides that the sums appropriated for certain public works projects13"shall be distributed x x x subject to the approval of a joint committee elected by the Senate and the House of Representatives. "The committee from each House may also authorize one of its members to approve the distribution made by the Secretary of Commerce and Communications."14 Also, in the area of fund realignment, the same section provides that the said secretary, "with the approval of said joint committee, or of the authorized members thereof, may, for the purposes of said distribution, transfer unexpended portions of any item of appropriation under this Act to any other item hereunder."
In 1950, it has been documented15 that post-enactment legislator participation broadened from the areas of fund release and realignment to the area of project identification. During that year, the mechanics of the public works act was modified to the extent that the discretion of choosing projects was transferred from the Secretary of Commerce and Communications to legislators. "For the first time, the law carried a list of projects selected by Members of Congress, they ‘being the representatives of the people, either on their own account or by consultation with local officials or civil leaders.‘"16 During this period, the pork barrel process commenced with local government councils, civil groups, and individuals appealing to Congressmen or Senators for projects. Petitions that were accommodated formed part of a legislator‘s allocation, and the amount each legislator would eventually get is determined in a caucus convened by the majority. The amount was then integrated into the administration bill prepared by the Department of Public Works and Communications. Thereafter, the Senate and the House of Representatives added their own provisions to the bill until it was signed into law by the President – the Public Works Act.17 In the 1960‘s, however, pork barrel legislation reportedly ceased in view of the stalemate between the House of Representatives and the Senate.18
B. Martial Law Era (1972-1986).
While the previous" Congressional Pork Barrel" was apparently discontinued in 1972 after Martial Law was declared, an era when "one man controlled the legislature,"19 the reprieve was only temporary. By 1982, the Batasang Pambansa had already introduced a new item in the General Appropriations Act (GAA) called the" Support for Local Development Projects" (SLDP) under the article on "National Aid to Local Government Units". Based on reports,20 it was under the SLDP that the practice of giving lump-sum allocations to individual legislators began, with each assemblyman receiving 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 assemblyman‘s locality. It has been further reported that "Congressional Pork Barrel" projects under the SLDP also began to cover not only public works projects, or so- called "hard projects", but also "soft projects",21 or non-public works projects such as those which would fall under the categories of, among others, education, health and livelihood.22
C. Post-Martial Law Era:
Corazon Cojuangco Aquino Administration (1986-1992).
After the EDSA People Power Revolution in 1986 and the restoration of Philippine democracy, "Congressional Pork Barrel" was revived in the form of the "Mindanao Development Fund" and the "Visayas Development Fund" which were created with lump-sum appropriations of P480 Million and P240 Million, respectively, for the funding of development projects in the Mindanao and Visayas areas in 1989. It has been documented23 that the clamor raised by the Senators and the Luzon legislators for a similar funding, prompted the creation of
the "Countrywide Development Fund" (CDF) which was integrated into the 1990 GAA24 with an initial funding ofP2.3 Billion to cover "small local infrastructure and other priority community projects."
Under the GAAs for the years 1991 and 1992,25 CDF funds were, with the approval of the President, to be released directly to the implementing agencies but "subject to the submission of the required list of projects and activities."Although the GAAs from 1990 to 1992 were silent as to the amounts of allocations of the individual legislators, as well as their participation in the identification of projects, it has been reported26 that by 1992, Representatives were 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.27
D. Fidel Valdez Ramos (Ramos) Administration (1992-1998).
The following year, or in 1993,28 the GAA explicitly stated that the release of CDF funds was to be made upon the submission of the list of projects and activities identified by, among others, individual legislators. For the first time, the 1993 CDF Article included an allocation for the Vice-President.29 As such, Representatives were allocated P12.5 Million each in CDF funds, Senators, P18 Million each, and the Vice-President, P20 Million.
In 1994,30 1995,31 and 1996,32 the GAAs contained the same provisions on project identification and fund release as found in the 1993 CDF Article. In addition, however, the Department of Budget and Management (DBM) was directed to submit reports to the Senate Committee on Finance and the House Committee on Appropriations on the releases made from the funds.33
Under the 199734 CDF Article, Members of Congress and the Vice-President, in consultation with the implementing agency concerned, were directed to submit to the DBM the list of 50% of projects to be funded from their respective CDF allocations which shall be duly endorsed by (a) the Senate President and the Chairman of the Committee on Finance, in the case of the Senate, and (b) the Speaker of the House of Representatives and the Chairman of the Committee on Appropriations, in the case of the House of Representatives; while the list for the remaining 50% was to be submitted within six (6) months thereafter. The same article also stated that the project list, which would be published by the DBM,35 "shall be the basis for the release of funds" and that "no funds appropriated herein shall be disbursed for projects not included in the list herein required."
The following year, or in 1998,36 the foregoing provisions regarding the required lists and endorsements were reproduced, except that the publication of the project list was no longer required as the list itself sufficed for the release of CDF Funds.
The CDF was not, however, the lone form of "Congressional Pork Barrel" at that time. Other forms of "Congressional Pork Barrel" were reportedly fashioned and inserted into the GAA (called "Congressional Insertions" or "CIs") in order to perpetuate the ad ministration‘s political agenda.37 It has been articulated that since CIs "formed part and parcel of the budgets of executive departments, they were not easily identifiable and were thus harder to monitor." Nonetheless, the lawmakers themselves as well as the finance and budget officials of the implementing agencies, as well as the DBM, purportedly knew about the insertions.38Examples of these CIs are the Department of Education (DepEd) School Building Fund, the Congressional Initiative Allocations, the Public Works Fund, the El Niño Fund, and the Poverty Alleviation Fund.39 The allocations for the School Building Fund, particularly, ―shall be made upon prior consultation with the representative of the legislative district concerned.”40 Similarly, the legislators had the power to direct how, where and when these appropriations were to be spent.41
E. Joseph Ejercito Estrada (Estrada) Administration (1998-2001).
In 1999,42 the CDF was removed in the GAA and replaced by three (3) separate forms of CIs, namely, the "Food Security Program Fund,"43 the "Lingap Para Sa Mahihirap Program Fund,"44and the "Rural/Urban Development Infrastructure Program Fund,"45 all of which contained a special provision requiring "prior consultation" with the Member s of Congress for the release of the funds.
It was in the year 200046 that the "Priority Development Assistance Fund" (PDAF) appeared in the GAA. The requirement of "prior consultation with the respective Representative of the District" before PDAF funds were directly released to the implementing agency concerned was explicitly stated in the 2000 PDAF Article. Moreover, realignment of funds to any expense category was expressly allowed, with the sole condition that no amount shall be used to fund personal services and other personnel benefits.47 The succeeding PDAF provisions remained the same in view of the re-enactment48 of the 2000 GAA for the year 2001.
F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010).
The 200249 PDAF Article was brief and straightforward as it merely contained a single special provision ordering the release of the funds directly to the implementing agency or local government unit concerned, without further qualifications. The following year, 2003,50 the same single provision was present, with simply an expansion of purpose and express authority to realign. Nevertheless, the provisions in the 2003 budgets of the Department of Public Works and Highways51 (DPWH) and the DepEd52 required prior consultation with Members of Congress on the aspects of implementation delegation and project list submission, respectively. In 2004, the 2003 GAA was re-enacted.53
In 2005,54 the PDAF Article provided that the PDAF shall be used "to fund priority programs and projects under the ten point agenda of the national government and shall be released directly to the implementing agencies." It also introduced the program menu concept,55 which is essentially a list of general programs and implementing agencies from which a particular PDAF project may be
subsequently chosen by the identifying authority. The 2005 GAA was re-enacted56 in 2006 and hence, operated on the same bases. In similar regard, the program menu concept was consistently integrated into the 2007,57 2008,58 2009,59 and 201060 GAAs.
Textually, the PDAF Articles from 2002 to 2010 were silent with respect to the specific amounts allocated for the individual legislators, as well as their participation in the proposal and identification of PDAF projects to be funded. In contrast to the PDAF Articles, however, the provisions under the DepEd School Building Program and the DPWH budget, similar to its predecessors, explicitly required prior consultation with the concerned Member of Congress61anent certain aspects of project implementation.
Significantly, it was during this era that provisions which allowed formal participation of non-governmental organizations (NGO) in the implementation of government projects were introduced. In the Supplemental Budget for 2006, with respect to the appropriation for school buildings, NGOs were, by law, encouraged to participate. For such purpose, the law stated that "the amount of at least 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."62 The same allocation was made available to NGOs in the 2007 and 2009 GAAs under the DepEd Budget.63 Also, it was in 2007 that the Government Procurement Policy Board64(GPPB) issued Resolution No. 12-2007 dated June 29, 2007 (GPPB Resolution 12-2007), amending the implementing rules and regulations65 of RA 9184,66 the Government Procurement Reform Act, to include, as a form of negotiated procurement,67 the procedure whereby the Procuring Entity68 (the implementing agency) may enter into a memorandum of agreement with an NGO, provided that "an appropriation law or ordinance earmarks an amount to be specifically contracted out to NGOs."69
G. Present Administration (2010-Present).
Differing from previous PDAF Articles but similar to the CDF Articles, the 201170 PDAF Article included an express statement on lump-sum amounts allocated for individual legislators and the Vice-President: Representatives were given 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.71
In the 201272 and 201373 PDAF Articles, it is stated that the "identification of projects and/or designation of beneficiaries shall conform to the priority list, standard or design prepared by each implementing agency (priority list requirement) x x x." However, as practiced, it would still be the individual legislator who would choose and identify the project from the said priority list.74
Provisions on legislator allocations75 as well as fund realignment76 were included in the 2012 and 2013 PDAF Articles; but the allocation for the Vice-President, which was pegged at 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.77 Legislators were also allowed to identify programs/projects, except for assistance to indigent patients and scholarships, outside of his legislative district provided that he secures the written concurrence of the legislator of the intended outside-district, endorsed by the Speaker of the House.78 Finally, any realignment of PDAF funds, modification and revision of project identification, as well as requests for release of funds, were all required to be favorably endorsed by the House Committee on Appropriations and the Senate Committee on Finance, as the case may be.79
III. History of Presidential Pork Barrel in the Philippines.
While the term "Pork Barrel" has been typically associated with lump-sum, discretionary funds of Members of Congress, the present cases and the recent controversies on the matter have, however, shown that the term‘s usage has expanded to include certain funds of the President such as the Malampaya Funds and the Presidential Social Fund.
On the one hand, the Malampaya Funds was created as a special fund under Section 880 of Presidential Decree No. (PD) 910,81 issued by then President Ferdinand E. Marcos (Marcos) on March 22, 1976. In enacting the said law, Marcos recognized the need to set up a special fund to help intensify, strengthen, and consolidate government efforts relating to the exploration, exploitation, and development of indigenous energy resources vital to economic growth.82 Due to the energy-related activities of the government in the Malampaya natural gas field in Palawan, or the "Malampaya Deep Water Gas-to-Power Project",83 the special fund created under PD 910 has been currently labeled as Malampaya Funds.
On the other hand the Presidential Social Fund was created under Section 12, Title IV84 of PD 1869,85 or the Charter of the Philippine Amusement and Gaming Corporation (PAGCOR). PD 1869 was similarly issued by Marcos on July 11, 1983. More than two (2) years after, he amended PD 1869 and accordingly issued PD 1993 on October 31, 1985,86 amending Section 1287 of the former law. As it stands, the Presidential Social Fund has been described as a special funding facility managed and administered by the Presidential Management Staff through which the President provides direct assistance to priority programs and projects not funded under the regular budget. It is sourced from the share of the government in the aggregate gross earnings of PAGCOR.88
IV. Controversies in the Philippines.
Over the decades, "pork" funds in the Philippines have increased tremendously,89 owing in no small part to previous Presidents who reportedly used the "Pork Barrel" in order to gain congressional support.90 It was in 1996 when the first controversy surrounding the "Pork Barrel" erupted. Former Marikina City Representative Romeo Candazo (Candazo), then an anonymous source, "blew the lid on the huge sums of government money that regularly went into the pockets of legislators in the form of kickbacks."91 He said that "the kickbacks were ‘SOP‘ (standard operating procedure) among legislators and ranged from a low 19 percent to a high 52 percent of the cost of each project, which could be anything from dredging, rip rapping, sphalting, concreting, and construction of school buildings."92 "Other sources of kickbacks that Candazo identified were public funds intended for medicines and textbooks. A few days later, the tale of the money trail became the banner story of the Philippine Daily Inquirer issue of August 13, 1996, accompanied by an illustration of a roasted pig."93 "The publication of the stories, including those about congressional initiative allocations of certain lawmakers, including P3.6 Billion for a Congressman, sparked public outrage."94
Thereafter, or in 2004, several concerned citizens sought the nullification of the PDAF as enacted in the 2004 GAA for being unconstitutional. Unfortunately, for lack of "any pertinent evidentiary support that illegal misuse of PDAF in the form of kickbacks has become a common exercise of unscrupulous Members of Congress," the petition was dismissed.95
Recently, or in July of the present year, the National Bureau of Investigation (NBI) began its probe into allegations that "the government has been defrauded of some 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."96 The investigation was spawned by sworn affidavits of six (6) whistle-blowers who declared that JLN Corporation – "JLN" standing for Janet Lim Napoles (Napoles) – had swindled billions of pesos from the public coffers for "ghost projects" using no fewer than 20 dummy NGOs for an entire decade. While the NGOs were supposedly the ultimate recipients of PDAF funds, the whistle-blowers declared that the money was diverted into Napoles‘ private accounts.97 Thus, after its investigation on the Napoles controversy, criminal complaints were filed before the Office of the Ombudsman, charging five (5) lawmakers for Plunder, and three (3) other lawmakers for Malversation, Direct Bribery, and Violation of the Anti-Graft and Corrupt Practices Act. Also recommended to be charged in the complaints are some of the lawmakers‘ chiefs -of-staff or representatives, the heads and other officials of three (3) implementing agencies, and the several presidents of the NGOs set up by Napoles.98
On August 16, 2013, the Commission on Audit (CoA) released the results of a three-year audit investigation99 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)100 by the DBM, the application of these funds and the implementation of projects by the appropriate implementing agencies and several government-owned-and-controlled corporations (GOCCs).101 The total releases covered by the audit amounted to 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.102 Accordingly, the Co A‘s findings contained in its Report No. 2012-03 (CoA Report), entitled "Priority
Development Assistance Fund (PDAF) and Various Infrastructures including Local Projects (VILP)," were made public, the highlights of which are as follows:103
● Amounts released for projects identified by a considerable number of legislators significantly exceeded their respective allocations.
● Amounts were released for projects outside of legislative districts of sponsoring members of the Lower House.
● Total VILP releases for the period exceeded the total amount appropriated under the 2007 to 2009 GAAs.
● Infrastructure projects were constructed on private lots without these having been turned over to the government.
● Significant amounts were released to implementing agencies without the latter‘s endorsement and without considering their mandated functions, administrative and technical capabilities to implement projects.
● Implementation of most livelihood projects was not undertaken by the implementing agencies themselves but by NGOs endorsed by the proponent legislators to which the Funds were transferred.
● The funds were transferred to the NGOs in spite of the absence of any appropriation law or ordinance.
● Selection of the NGOs were not compliant with law and regulations.
● Eighty-Two (82) NGOs entrusted with implementation of seven hundred seventy two (772) projects amount to 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."104 According to incumbent CoA Chairperson Maria Gracia Pulido Tan (CoA Chairperson), the CoA is, as of this writing, in the process of preparing "one consolidated report" on the Malampaya Funds.105
V. The Procedural Antecedents.
Spurred in large part by the findings contained in the CoA Report and the Napoles controversy, several petitions were lodged before the Court similarly seeking that the "Pork Barrel System" be declared unconstitutional. To recount, the relevant procedural antecedents in these cases are as follows:
On August 28, 2013, petitioner Samson S. Alcantara (Alcantara), President of the Social Justice Society, filed a Petition for Prohibition of even date under Rule 65 of the Rules of Court (Alcantara Petition), seeking that the "Pork Barrel System" be declared unconstitutional, and a writ of prohibition be issued permanently restraining respondents Franklin M. Drilon and Feliciano S. Belmonte, Jr., in their respective capacities as the incumbent Senate President and Speaker of the House of Representatives, from further taking any steps to enact legislation appropriating funds for the "Pork Barrel System," in whatever form and by whatever name it may be called, and from approving further releases pursuant thereto.106 The Alcantara Petition was docketed as G.R. No. 208493.
On September 3, 2013, petitioners Greco Antonious Beda B. Belgica, Jose L. Gonzalez, Reuben M. Abante, Quintin Paredes San Diego (Belgica, et al.), and Jose M. Villegas, Jr. (Villegas) filed an Urgent Petition For Certiorari and Prohibition With Prayer For The Immediate Issuance of Temporary Restraining Order (TRO) and/or Writ of Preliminary Injunction dated August 27, 2013 under Rule 65 of the Rules of Court (Belgica Petition), seeking that the annual "Pork Barrel System," presently embodied in the provisions of the GAA of 2013 which provided for the 2013 PDAF, and the Executive‘s lump-sum, discretionary funds, such as the Malampaya Funds and the Presidential Social Fund,107 be declared unconstitutional and null and void for being acts constituting grave abuse of discretion. Also, they pray that the Court issue a TRO against respondents Paquito N. Ochoa, Jr., Florencio B. Abad (Secretary Abad) and Rosalia V. De Leon, in their respective capacities as the incumbent Executive Secretary, Secretary of the Department of Budget and Management (DBM), and National Treasurer, or their agents, for them to immediately cease any expenditure under the aforesaid funds. Further, they pray that the Court order the foregoing respondents to release to the CoA and to the public: (a) "the complete schedule/list of legislators who have availed of their PDAF and VILP from the years 2003 to 2013, specifying the use of the funds, the project or activity and the recipient entities or individuals, and all pertinent data thereto"; and (b) "the use of the Executive‘s lump-sum, discretionary funds, including the proceeds from the x x x Malampaya Funds and remittances from the PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity and the recipient entities or individuals, and all pertinent data thereto."108 Also, they pray for the "inclusion in budgetary deliberations with the Congress of all presently off-budget, lump-sum, discretionary funds including, but not limited to, proceeds from the Malampaya Funds and remittances from the PAGCOR."109 The Belgica Petition was docketed as G.R. No. 208566.110
Lastly, on September 5, 2013, petitioner Pedrito M. Nepomuceno (Nepomuceno), filed a Petition dated August 23, 2012 (Nepomuceno Petition), seeking that the PDAF be declared unconstitutional, and a cease and desist order be issued restraining President Benigno Simeon S. Aquino III (President Aquino) and Secretary Abad from releasing such funds to Members of Congress and, instead, allow their release to fund priority projects identified and approved by the Local Development Councils in consultation with the executive departments, such as the DPWH, the Department of Tourism, the Department of Health, the Department of Transportation, and Communication and the National Economic Development Authority.111 The Nepomuceno Petition was docketed as UDK-14951.112
On September 10, 2013, the Court issued a Resolution of even date (a) consolidating all cases; (b) requiring public respondents to comment on the consolidated petitions; (c) issuing a TRO (September 10, 2013 TRO) enjoining the DBM, National Treasurer, the Executive Secretary, or any of the persons acting under their authority from releasing (1) the remaining PDAF allocated to Members of Congress under the GAA of 2013, and (2) Malampaya Funds under the phrase "for such other purposes as may be hereafter directed by the President" pursuant to Section 8
of PD 910 but not for the purpose of "financing energy resource development and exploitation programs and projects of the government‖ under the same provision; and (d) setting the consolidated cases for Oral Arguments on October 8, 2013.
On September 23, 2013, the Office of the Solicitor General (OSG) filed a Consolidated Comment (Comment) of even date before the Court, seeking the lifting, or in the alternative, the partial lifting with respect to educational and medical assistance purposes, of the Court‘s September 10, 2013 TRO, and that the consolidated petitions be dismissed for lack of merit.113
On September 24, 2013, the Court issued a Resolution of even date directing petitioners to reply to the Comment.
Petitioners, with the exception of Nepomuceno, filed their respective replies to the Comment: (a) on September 30, 2013, Villegas filed a separate Reply dated September 27, 2013 (Villegas Reply); (b) on October 1, 2013, Belgica, et al. filed a Reply dated September 30, 2013 (Belgica Reply); and (c) on October 2, 2013, Alcantara filed a Reply dated October 1, 2013.
On October 1, 2013, the Court issued an Advisory providing for the guidelines to be observed by the parties for the Oral Arguments scheduled on October 8, 2013. In view of the technicality of the issues material to the present cases, incumbent Solicitor General Francis H. Jardeleza (Solicitor General) was directed to bring with him during the Oral Arguments representative/s from the DBM and Congress who would be able to competently and completely answer questions related to, among others, the budgeting process and its implementation. Further, the CoA Chairperson was appointed as amicus curiae and thereby requested to appear before the Court during the Oral Arguments.
On October 8 and 10, 2013, the Oral Arguments were conducted. Thereafter, the Court directed the parties to submit their respective memoranda within a period of seven (7) days, or until October 17, 2013, which the parties subsequently did.
The Issues Before the Court
Based on the pleadings, and as refined during the Oral Arguments, the following are the main issues for the Court‘s resolution:
I. Procedural Issues.
Whether or not (a) the issues raised in the consolidated petitions involve an actual and justiciable controversy; (b) the issues raised in the consolidated petitions are matters of policy not subject to judicial review; (c) petitioners have legal standing to sue; and (d) the Court‘s Decision dated August 19, 1994 in G.R. Nos. 113105, 113174, 113766, and 113888, entitled "Philippine Constitution Association v. Enriquez"114 (Philconsa) and Decision dated April 24, 2012 in G.R. No. 164987, entitled "Lawyers Against Monopoly and Poverty v. Secretary of Budget and Management"115 (LAMP) bar the re-litigatio n of the issue of constitutionality of the "Pork Barrel System" under the principles of res judicata and stare decisis.
II. Substantive Issues on the "Congressional Pork Barrel."
Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel Laws similar thereto are unconstitutional considering that they violate the principles of/constitutional
provisions on (a) separation of powers; (b) non-delegability of legislative power; (c) checks and balances; (d) accountability; (e) political dynasties; and (f) local autonomy.
III. Substantive Issues on the "Presidential Pork Barrel."
Whether or not the phrases (a) "and for such other purposes as may be hereafter directed by the President" under Section 8 of PD 910,116 relating to the Malampaya Funds, and (b) "to finance the priority infrastructure development projects and to finance the restoration of damaged or destroyed facilities due to calamities, as may be directed and authorized by the Office of the President of the Philippines" under Section 12 of PD 1869, as amended by PD 1993, relating to the Presidential Social Fund, are unconstitutional insofar as they constitute undue delegations of legislative power.
These main issues shall be resolved in the order that they have been stated. In addition, the Court shall also tackle certain ancillary issues as prompted by the present cases.
The Court’s Ruling
The petitions are partly granted.
I. Procedural Issues.
The prevailing rule in constitutional litigation is that no question involving the constitutionality or validity of a law or governmental act may be heard and decided by the Court unless there is compliance with the legal requisites for judicial inquiry,117 namely: (a) there must be an actual case or controversy calling for the exercise of judicial power; (b) the person challenging the act must have the standing to question the validity of the subject act or issuance; (c) the question of constitutionality must be raised at the earliest opportunity ; and (d) the issue of constitutionality must be the very lis mota of the case.118 Of these requisites, case law states that the first two are the most important119 and, therefore, shall be discussed forthwith.
A. Existence of an Actual Case or Controversy.
By constitutional fiat, judicial power operates only when there is an actual case or controversy.120 This is embodied in Section 1, Article VIII of the 1987 Constitution which pertinently states that "judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable x x x." Jurisprudence provides that an actual case or controversy is one which "involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute.121 In other words, "there must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence."122 Related to the requirement of an actual case or controversy is the requirement of "ripeness," meaning that the questions raised for constitutional scrutiny are already ripe for adjudication. "A question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. It is a prerequisite that something had then been accomplished or performed by either branch before a court may come into the picture, and the petitioner must allege the existence of an immediate or threatened injury to itself as a result of the challenged action."123 "Withal, courts will decline to pass upon constitutional issues through advisory opinions, bereft as they are of authority to resolve hypothetical or moot questions."124
Based on these principles, the Court finds that there exists an actual and justiciable controversy in these cases.
The requirement of contrariety of legal rights is clearly satisfied by the antagonistic positions of the parties on the constitutionality of the "Pork Barrel System." Also, the questions in these consolidated cases are ripe for adjudication since the challenged funds and the provisions allowing for their utilization – such as the 2013 GAA for the PDAF, PD 910 for the Malampaya Funds and PD 1869, as amended by PD 1993, for the Presidential Social Fund – are currently existing and operational; hence, there exists an immediate or threatened injury to petitioners as a result of the unconstitutional use of these public funds.
As for the PDAF, the Court must dispel the notion that the issues related thereto had been rendered moot and academic by the reforms undertaken by respondents. A case becomes moot when there is no more actual controversy between the parties or no useful purpose can be served in passing upon the merits.125 Differing from this description, the Court observes that respondents‘ proposed line-item budgeting scheme would not terminate the controversy nor diminish the useful purpose for its resolution since said reform is geared towards the 2014 budget, and not the 2013 PDAF Article which, being a distinct subject matter, remains legally effective and existing. Neither will the President‘s declaration that he had already "abolished the PDAF" render the issues on PDAF moot precisely because the Executive branch of government has no constitutional authority to nullify or annul its legal existence. By constitutional design, the annulment or nullification of a law may be done either by Congress, through the passage of a repealing law, or by the Court, through a declaration of unconstitutionality. Instructive on this point is the following exchange between Associate Justice Antonio T. Carpio (Justice Carpio) and the Solicitor General during the Oral Arguments:126
Justice Carpio: The President has taken an oath to faithfully execute the law,127 correct? Solicitor General Jardeleza: Yes, Your Honor.
Justice Carpio: And so the President cannot refuse to implement the General Appropriations Act, correct?
Solicitor General Jardeleza: Well, that is our answer, Your Honor. In the case, for example of the PDAF, the President has a duty to execute the laws but in the face of the outrage over PDAF, the President was saying, "I am not sure that I will continue the release of the soft projects," and that started, Your Honor. Now, whether or not that … (interrupted)
Justice Carpio: Yeah. I will grant the President if there are anomalies in the project, he has the power to stop the releases in the meantime, to investigate, and that is Section 38 of Chapter 5 of Book 6 of the Revised Administrative Code128 x x x. So at most the President can suspend, now if the President believes that the PDAF is unconstitutional, can he just refuse to implement it?
Solicitor General Jardeleza: No, Your Honor, as we were trying to say in the specific case of the PDAF because of the CoA Report, because of the reported irregularities and this Court can take judicial notice, even outside, outside of the COA Report, you have the report of the whistle-blowers, the President was just exercising precisely the duty ….
x x x x
Justice Carpio: Yes, and that is correct. You‘ve seen the CoA Report, there are anomalies, you stop and investigate, and prosecute, he has done that. But, does that mean that PDAF has been repealed?
Solicitor General Jardeleza: No, Your Honor x x x.
x x x x
Justice Carpio: So that PDAF can be legally abolished only in two (2) cases. Congress passes a law to repeal it, or this Court declares it unconstitutional, correct?
Solictor General Jardeleza: Yes, Your Honor.
Justice Carpio: The President has no power to legally abolish PDAF. (Emphases supplied)
Even on the assumption of mootness, jurisprudence, nevertheless, dictates that "the moot and academic‘ principle is not a magical formula that can automatically dissuade the Court in resolving a case." The Court will decide cases, otherwise moot, if: first, there is a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest is involved; third, when the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading review.129
The applicability of the first exception is clear from the fundamental posture of petitioners – they essentially allege grave violations of the Constitution with respect to, inter alia, the principles of separation of powers, non-delegability of legislative power, checks and balances, accountability and local autonomy.
The applicability of the second exception is also apparent from the nature of the interests involved
– the constitutionality of the very system within which significant amounts of public funds have been and continue to be utilized and expended undoubtedly presents a situation of exceptional character as well as a matter of paramount public interest. The present petitions, in fact, have been lodged at a time when the system‘s flaws have never before been magnified. To the Court‘s mind, the coalescence of the CoA Report, the accounts of numerous whistle-blowers, and the government‘s own recognition that reforms are needed "to address the reported abuses of the PDAF"130 demonstrates a prima facie pattern of abuse which only underscores the importance of the matter. It is also by this finding that the Court finds petitioners‘ claims as not merely theorized, speculative or hypothetical. Of note is the weight accorded by the Court to the findings made by the CoA which is the constitutionally-mandated audit arm of the government. In Delos Santos v. CoA,131 a recent case wherein the Court upheld the CoA‘s disallowance of irregularly disbursed PDAF funds, it was emphasized that:
The COA is endowed with enough latitude to determine, prevent, and disallow irregular, unnecessary, excessive, extravagant or unconscionable expenditures of government funds. It is tasked to be vigilant and conscientious in safeguarding the proper use of the government's, and ultimately the people's, property. The exercise of its general audit power is among the constitutional mechanisms that gives life to the check and balance system inherent in our form of government.
It is the general policy of the Court to sustain the decisions of administrative authorities, especially one which is constitutionally-created, such as the CoA, not only on the basis of the doctrine of separation of powers but also for their presumed expertise in the laws they are entrusted to enforce. Findings of administrative agencies are accorded not only respect but also finality when the decision and order are not tainted with unfairness or arbitrariness that would amount to grave abuse of discretion. It is only when the CoA has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, that this Court entertains a petition questioning its rulings. x x x. (Emphases supplied)
Thus, if only for the purpose of validating the existence of an actual and justiciable controversy in these cases, the Court deems the findings under the CoA Report to be sufficient.
The Court also finds the third exception to be applicable largely due to the practical need for a definitive ruling on the system‘s constitutionality. As disclosed during the Oral Arguments, the CoA Chairperson estimates that thousands of notices of disallowances will be issued by her office in connection with the findings made in the CoA Report. In this relation, Associate Justice Marvic Mario Victor F. Leonen (Justice Leonen) pointed out that all of these would eventually find their way to the courts.132 Accordingly, there is a compelling need to formulate controlling principles relative to the issues raised herein in order to guide the bench, the bar, and the public, not just for the expeditious resolution of the anticipated disallowance cases, but more importantly, so that the government may be guided on how public funds should be utilized in accordance with constitutional principles.
Finally, the application of the fourth exception is called for by the recognition that the preparation and passage of the national budget is, by constitutional imprimatur, an affair of annual occurrence.133 The relevance of the issues before the Court does not cease with the passage of a "PDAF -free budget for 2014."134 The evolution of the "Pork Barrel System," by its multifarious iterations throughout the course of history, lends a semblance of truth to petitioners‘ claim that "the same dog will just resurface wearing a different collar."135 In Sanlakas v. Executive Secretary,136 the government had already backtracked on a previous course of action yet the Court used the "capable of repetition but evading review" exception in order "to prevent similar questions from re- emerging."137The situation similarly holds true to these cases. Indeed, the myriad of issues underlying the manner in which certain public funds are spent, if not resolved at this most opportune time, are capable of repetition and hence, must not evade judicial review.
B. Matters of Policy: the Political Question Doctrine.
The "limitation on the power of judicial review to actual cases and controversies‖ carries the assurance that "the courts will not intrude into areas committed to the other branches of government."138 Essentially, the foregoing limitation is a restatement of the political question doctrine which, under the classic formulation of Baker v. Carr,139applies when there is found, among others, "a textually demonstrable constitutional commitment of the issue to a coordinate political department," "a lack of judicially discoverable and manageable standards for resolving it" or "the impossibility of deciding without an initial policy determination of a kind clearly for non- judicial discretion." Cast against this light, respondents submit that the "the political branches are in the best position not only to perform budget-related reforms but also to do them in response to the specific demands of their constituents" and, as such, "urge the Court not to impose a solution at this stage."140
The Court must deny respondents‘ submission.
Suffice it to state that the issues raised before the Court do not present political but legal questions which are within its province to resolve. A political question refers to "those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government. It is concerned with issues dependent upon the wisdom, not legality, of a particular measure."141 The intrinsic constitutionality of the "Pork Barrel System" is not an issue dependent upon the wisdom of the political branches of government but rather a legal one which the Constitution itself has commanded the Court to act upon. Scrutinizing the contours of the system along constitutional lines is a task that the political branches of government are incapable of rendering precisely because it is an exercise of judicial power. More importantly, the present Constitution has not only vested the Judiciary the right to exercise judicial power but essentially makes it a duty to proceed therewith. Section 1, Article VIII of the 1987 Constitution cannot be any clearer: "The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. It includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." In Estrada v. Desierto,142 the expanded concept of judicial power under the 1987 Constitution and its effect on the political question doctrine was explained as follows:143
To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine when it expanded the power of judicial review of this court not only to settle actual controversies involving rights which are legally demandable and enforceable but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. Heretofore, the judiciary has focused on the "thou shalt not's" of the Constitution directed against the exercise of its jurisdiction. With the new provision, however, courts are given a greater prerogative to determine what it can do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. Clearly, the new provision did not just grant the Court power of doing nothing. x x x (Emphases supplied)
It must also be borne in mind that ― when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; does not in reality nullify or invalidate an act of the legislature or the executive, but only asserts the solemn and sacred obligation assigned to it by the Constitution."144 To a great extent, the Court is laudably cognizant of the reforms undertaken by its co-equal branches of government. But it is by constitutional force that the Court must faithfully perform its duty. Ultimately, it is the Court‘s avowed intention that a resolution of these cases would not arrest or in any manner impede the endeavors of the two other branches but, in fact, help ensure that the pillars of change are erected on firm constitutional grounds. After all, it is in the best interest of the people that each great branch of government, within its own sphere, contributes its share towards achieving a holistic and genuine solution to the problems of society. For all these reasons, the Court cannot heed respondents‘ plea for judicial restraint.
C. Locus Standi.
"The gist of the question of standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional
questions. Unless a person is injuriously affected in any of his constitutional rights by the operation of statute or ordinance, he has no standing."145
Petitioners have come before the Court in their respective capacities as citizen-taxpayers and accordingly, assert that they "dutifully contribute to the coffers of the National Treasury."146 Clearly, as taxpayers, they possess the requisite standing to question the validity of the existing "Pork Barrel System" under which the taxes they pay have been and continue to be utilized. It is undeniable that petitioners, as taxpayers, are bound to suffer from the unconstitutional usage of public funds, if the Court so rules. Invariably, taxpayers have been allowed to sue where there is a claim that public funds are illegally disbursed or that public money is being deflected to any improper purpose, or that public funds are wasted through the enforcement of an invalid or unconstitutional law,147 as in these cases.
Moreover, as citizens, petitioners have equally fulfilled the standing requirement given that the issues they have raised may be classified as matters "of transcendental importance, of overreaching significance to society, or of paramount public interest."148 The CoA Chairperson‘s statement during the Oral Arguments that the present controversy involves "not merely a systems failure" but a "complete breakdown of controls"149 amplifies, in addition to the matters above-discussed, the seriousness of the issues involved herein. Indeed, of greater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute.150 All told, petitioners have sufficient locus standi to file the instant cases.
D. Res Judicata and Stare Decisis.
Res judicata (which means a "matter adjudged") and stare decisis non quieta et movere (or simply, stare decisis which means "follow past precedents and do not disturb what has been settled") are general procedural law principles which both deal with the effects of previous but factually similar dispositions to subsequent cases. For the cases at bar, the Court examines the applicability of these principles in relation to its prior rulings in Philconsa and LAMP.
The focal point of res judicata is the judgment. The principle states that a judgment on the merits in a previous case rendered by a court of competent jurisdiction would bind a subsequent case if, between the first and second actions, there exists an identity of parties, of subject matter, and of causes of action.151 This required identity is not, however, attendant hereto since Philconsa and LAMP, respectively involved constitutional challenges against the 1994 CDF Article and 2004 PDAF Article, whereas the cases at bar call for a broader constitutional scrutiny of the entire "Pork Barrel System." Also, the ruling in LAMP is essentially a dismissal based on a procedural technicality – and, thus, hardly a judgment on the merits – in that petitioners therein failed to present any "convincing proof x x x showing that, indeed, there were direct releases of funds to the Members of Congress, who actually spend them according to their sole discretion" or "pertinent evidentiary support to demonstrate the illegal misuse of PDAF in the form of kickbacks and has become a common exercise of unscrupulous Members of Congress." As such, the Court up held, in view of the presumption of constitutionality accorded to every law, the 2004 PDAF Article, and saw "no need to review or reverse the standing pronouncements in the said case." Hence, for the foregoing reasons, the res judicata principle, insofar as the Philconsa and LAMP cases are concerned, cannot apply.
On the other hand, the focal point of stare decisis is the doctrine created. The principle, entrenched under Article 8152 of the Civil Code, evokes the general rule that, for the sake of
certainty, a conclusion reached in one case should be doctrinally applied to those that follow if the facts are substantially the same, even though the parties may be different. It proceeds from the first principle of justice that, absent any powerful countervailing considerations, like cases ought to be decided alike. Thus, where the same questions relating to the same event have been put forward by the parties similarly situated as in a previous case litigated and decided by a competent court, the rule of stare decisis is a bar to any attempt to re-litigate the same issue.153
Philconsa was the first case where a constitutional challenge against a Pork Barrel provision, i.e., the 1994 CDF Article, was resolved by the Court. To properly understand its context, petitioners‘ posturing was that "the power given to the Members of Congress to propose and identify projects and activities to be funded by the CDF is an encroachment by the legislature on executive power, since said power in an appropriation act is in implementation of the law" and that "the proposal and identification of the projects do not involve the making of laws or the repeal and amendment thereof, the only function given to the Congress by the Constitution."154 In deference to the foregoing submissions, the Court reached the following main conclusions: one, under the Constitution, the power of appropriation, or the "power of the purse," belongs to Congress; two, the power of appropriation carries with it the power to specify the project or activity to be funded under the appropriation law and it can be detailed and as broad as Congress wants it to be; and, three, the proposals and identifications made by Members of Congress are merely recommendatory. At once, it is apparent that the Philconsa resolution was a limited response to a separation of powers problem, specifically on the propriety of conferring post-enactment identification authority to Members of Congress. On the contrary, the present cases call for a more holistic examination of (a) the inter-relation between the CDF and PDAF Articles with each other, formative as they are of the entire "Pork Barrel System" as well as (b) the intra-relation of post-enactment measures contained within a particular CDF or PDAF Article, including not only those related to the area of project identification but also to the areas of fund release and realignment. The complexity of the issues and the broader legal analyses herein warranted may be, therefore, considered as a powerful countervailing reason against a wholesale application of the stare decisis principle.
In addition, the Court observes that the Philconsa ruling was actually riddled with inherent constitutional inconsistencies which similarly countervail against a full resort to stare decisis. As may be deduced from the main conclusions of the case, Philconsa‘s fundamental premise in allowing Members of Congress to propose and identify of projects would be that the said identification authority is but an aspect of the power of appropriation which has been constitutionally lodged in Congress. From this premise, the contradictions may be easily seen. If the authority to identify projects is an aspect of appropriation and the power of appropriation is a form of legislative power thereby lodged in Congress, then it follows that: (a) it is Congress which should exercise such authority, and not its individual Members; (b) such authority must be exercised within the prescribed procedure of law passage and, hence, should not be exercised after the GAA has already been passed; and (c) such authority, as embodied in the GAA, has the force of law and, hence, cannot be merely recommendatory. Justice Vitug‘s Concurring Opinion in the same case sums up the Philconsa quandary in this wise: "Neither would it be objectionable for Congress, by law, to appropriate funds for such specific projects as it may be minded; to give that authority, however, to the individual members of Congress in whatever guise, I am afraid, would be constitutionally impermissible." As the Court now largely benefits from hindsight and current findings on the matter, among others, the CoA Report, the Court must partially abandon its previous ruling in Philconsa insofar as it validated the post-enactment identification authority of Members of Congress on the guise that the same was merely recommendatory. This postulate raises serious constitutional inconsistencies which cannot be
simply excused on the ground that such mechanism is "imaginative as it is innovative." Moreover, it must be pointed out that the recent case of Abakada Guro Party List v. Purisima155 (Abakada) has effectively overturned Philconsa‘s allowance of post-enactment legislator participation in view of the separation of powers principle. These constitutional inconsistencies and the Abakada rule will be discussed in greater detail in the ensuing section of this Decision.
As for LAMP, suffice it to restate that the said case was dismissed on a procedural technicality and, hence, has not set any controlling doctrine susceptible of current application to the substantive issues in these cases. In fine, stare decisis would not apply.
II. Substantive Issues.
A. Definition of Terms.
Before the Court proceeds to resolve the substantive issues of these cases, it must first define the terms "Pork Barrel System," "Congressional Pork Barrel," and "Presidential Pork Barrel" as they are essential to the ensuing discourse.
Petitioners define the term "Pork Barrel System" as the "collusion between the Legislative and Executive branches of government to accumulate lump-sum public funds in their offices with unchecked discretionary powers to determine its distribution as political largesse."156 They assert that the following elements make up the Pork Barrel System: (a) lump-sum funds are allocated through the appropriations process to an individual officer; (b) the officer is given sole and broad discretion in determining how the funds will be used or expended; (c) the guidelines on how to spend or use the funds in the appropriation are either vague, overbroad or inexistent; and (d) projects funded are intended to benefit a definite constituency in a particular part of the country and to help the political careers of the disbursing official by yielding rich patronage benefits.157 They further state that the Pork Barrel System is comprised of two (2) kinds of discretionary public funds: first, the Congressional (or Legislative) Pork Barrel, currently known as the PDAF;158 and, second, the Presidential (or Executive) Pork Barrel, specifically, the Malampaya Funds under PD 910 and the Presidential Social Fund under PD 1869, as amended by PD 1993.159
Considering petitioners‘ submission and in reference to its local concept and legal history, the Court defines the Pork Barrel System as the collective body of rules and practices that govern the manner by which lump-sum, discretionary funds, primarily intended for local projects, are utilized through the respective participations of the Legislative and Executive branches of government, including its members. The Pork Barrel System involves two (2) kinds of lump-sum discretionary funds:
First, there is the Congressional Pork Barrel which is herein defined as a kind of lump-sum, discretionary fund wherein legislators, either individually or collectively organized into committees, are able to effectively control certain aspects of the fund’s utilization through various post-enactment measures and/or practices. In particular, petitioners consider the PDAF, as it appears under the 2013 GAA, as Congressional Pork Barrel since it is, inter alia, a post-enactment measure that allows individual legislators to wield a collective power;160 and
Second, there is the Presidential Pork Barrel which is herein defined as a kind of lump-sum, discretionary fund which allows the President to determine the manner of its utilization. For
reasons earlier stated,161 the Court shall delimit the use of such term to refer only to the Malampaya Funds and the Presidential Social Fund.
With these definitions in mind, the Court shall now proceed to discuss the substantive issues of these cases.
B. Substantive Issues on the Congressional Pork Barrel.
1. Separation of Powers.
a. Statement of Principle.
The principle of separation of powers refers to the constitutional demarcation of the three fundamental powers of government. In the celebrated words of Justice Laurel in Angara v. Electoral Commission,162 it means that the "Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government."163 To the legislative branch of government, through Congress,164 belongs the power to make laws; to the executive branch of government, through the President,165belongs the power to enforce laws; and to the judicial branch of government, through the Court,166 belongs the power to interpret laws. Because the three great powers have been, by constitutional design, ordained in this respect, "each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere."167 Thus, "the legislature has no authority to execute or construe the law, the executive has no authority to make or construe the law, and the judiciary has no power to make or execute the law."168 The principle of separation of powers and its concepts of autonomy and independence stem from the notion that the powers of government must be divided to avoid concentration of these powers in any one branch; the division, it is hoped, would avoid any single branch from lording its power over the other branches or the citizenry.169 To achieve this purpose, the divided power must be wielded by co-equal branches of government that are equally capable of independent action in exercising their respective mandates. Lack of independence would result in the inability of one branch of government to check the arbitrary or self-interest assertions of another or others.170
Broadly speaking, there is a violation of the separation of powers principle when one branch of government unduly encroaches on the domain of another. US Supreme Court decisions instruct that the principle of separation of powers may be violated in two (2) ways: firstly, "one branch may interfere impermissibly with the other’s performance of its constitutionally assigned function";171 and "alternatively, the doctrine may be violated when one branch assumes a function that more properly is entrusted to another."172 In other words, there is a violation of the principle when there is impermissible (a) interference with and/or (b) assumption of another department‘s functions.
The enforcement of the national budget, as primarily contained in the GAA, is indisputably a function both constitutionally assigned and properly entrusted to the Executive branch of government. In Guingona, Jr. v. Hon. Carague173 (Guingona, Jr.), the Court explained that the phase of budget execution "covers the various operational aspects of budgeting" and accordingly includes "the evaluation of work and financial plans for individual activities," the "regulation and release of funds" as well as all "other related activities" that comprise the budget execution cycle.174 This is rooted in the principle that the allocation of power in the three principal branches of government is a grant of all powers inherent in them.175 Thus, unless the
Constitution provides otherwise, the Executive department should exclusively exercise all roles and prerogatives which go into the implementation of the national budget as provided under the GAA as well as any other appropriation law.
In view of the foregoing, the Legislative branch of government, much more any of its members, should not cross over the field of implementing the national budget since, as earlier stated, the same is properly the domain of the Executive. Again, in Guingona, Jr., the Court stated that "Congress enters the picture when it deliberates or acts on the budget proposals of the President. Thereafter, Congress, "in the exercise of its own judgment and wisdom, formulates an appropriation act precisely following the process established by the Constitution, which specifies that no money may be paid from the Treasury except in accordance with an appropriation made by law." Upon approval and passage of the GAA, Congress‘ law -making role necessarily comes to an end and from there the Executive‘s role of implementing the national budget begins. So as not to blur the constitutional boundaries between them, Congress must "not concern it self with details for implementation by the Executive."176
The foregoing cardinal postulates were definitively enunciated in Abakada where the Court held that "from the moment the law becomes effective, any provision of law that empowers Congress or any of its members to play any role in the implementation or enforcement of the law violates the principle of separation of powers and is thus unconstitutional."177 It must be clarified, however, that since the restriction only pertains to "any role in the implementation or enforcement of the law," Congress may still exercise its oversight function which is a mechanism of checks and balances that the Constitution itself allows. But it must be made clear that Congress‘ role must be confined to mere oversight. Any post-enactment-measure allowing legislator participation beyond oversight is bereft of any constitutional basis and hence, tantamount to impermissible interference and/or assumption of executive functions. As the Court ruled in Abakada:178
Any post-enactment congressional measure x x x should be limited to scrutiny and investigation.1âwphi1 In particular, congressional oversight must be confined to the following:
(1) scrutiny based primarily on Congress‘ power of appropriation and the budget hearings conducted in connection with it, its power to ask heads of departments to appear before and be heard by either of its Houses on any matter pertaining to their departments and its power of confirmation; and
(2) investigation and monitoring of the implementation of laws pursuant to the power of Congress to conduct inquiries in aid of legislation.
Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution. (Emphases supplied)
b. Application.
In these cases, petitioners submit that the Congressional Pork Barrel – among others, the 2013 PDAF Article – "wrecks the assignment of responsibilities between the political branches" as it is designed to allow individual legislators to interfere "way past the time it should have ceased" or, particularly, "after the GAA is passed."179They state that the findings and recommendations in the CoA Report provide "an illustration of how absolute and definitive the power of legislators wield over project implementation in complete violation of the constitutional principle of
separation of powers."180 Further, they point out that the Court in the Philconsa case only allowed the CDF to exist on the condition that individual legislators limited their role to recommending projects and not if they actually dictate their implementation.181
For their part, respondents counter that the separations of powers principle has not been violated since the President maintains "ultimate authority to control the execution of the GAA‖ and that he "retains the final discretion to reject" the legislators‘ proposals.182 They maintain that the Court, in Philconsa, "upheld the constitutionality of the power of members of Congress to propose and identify projects so long as such proposal and identification are recommendatory."183 As such, they claim that "everything in the Special Provisions [of the 2013 PDAF Article follows the Philconsa framework, and hence, remains constitutional."184
The Court rules in favor of petitioners.
As may be observed from its legal history, the defining feature of all forms of Congressional Pork Barrel would be the authority of legislators to participate in the post-enactment phases of project implementation.
At its core, legislators – may it be through project lists,185 prior consultations186 or program menus187 – have been consistently accorded post-enactment authority to identify the projects they desire to be funded through various Congressional Pork Barrel allocations. Under the 2013 PDAF Article, the statutory authority of legislators to identify projects post-GAA may be construed from the import of Special Provisions 1 to 3 as well as the second paragraph of Special Provision 4. To elucidate, Special Provision 1 embodies the program menu feature which, as evinced from past PDAF Articles, allows individual legislators to identify PDAF projects for as long as the identified project falls under a general program listed in the said menu. Relatedly, Special Provision 2 provides that the implementing agencies shall, within 90 days from the GAA is passed, submit to Congress a more detailed priority list, standard or design prepared and submitted by implementing agencies from which the legislator may make his choice. The same provision further authorizes legislators to identify PDAF projects outside his district for as long as the representative of the district concerned concurs in writing. Meanwhile, Special Provision 3 clarifies that PDAF projects refer to "projects to be identified by legislators"188 and thereunder provides the allocation limit for the total amount of projects identified by each legislator. Finally, paragraph 2 of Special Provision 4 requires that any modification and revision of the project identification "shall be submitted to the House Committee on Appropriations and the Senate Committee on Finance for favorable endorsement to the DBM or the implementing agency, as the case may be." From the foregoing special provisions, it cannot be seriously doubted that legislators have been accorded post-enactment authority to identify PDAF projects.
Aside from the area of project identification, legislators have also been accorded post-enactment authority in the areas of fund release and realignment. Under the 2013 PDAF Article, the statutory authority of legislators to participate in the area of fund release through congressional committees is contained in Special Provision 5 which explicitly states that "all request for release of funds shall be supported by the documents prescribed under Special Provision No. 1 and favorably endorsed by House Committee on Appropriations and the Senate Committee on Finance, as the case may be"; while their statutory authority to participate in the area of fund realignment is contained in: first , paragraph 2, Special Provision 4189 which explicitly state s, among others, that "any realignment of funds shall be submitted to the House Committee on Appropriations and the Senate Committee on Finance for favorable endorsement
to the DBM or the implementing agency, as the case may be‖ ; and, second , paragraph 1, also of Special Provision 4 which authorizes the "Secretaries of Agriculture, Education, Energy, Interior and Local Government, Labor and Employment, Public Works and Highways, Social Welfare and Development and Trade and Industry190 x x x to approve realignment from one project/scope to another within the allotment received from this Fund, subject to among others (iii) the request is with the concurrence of the legislator concerned."
Clearly, these post-enactment measures which govern the areas of project identification, fund release and fund realignment are not related to functions of congressional oversight and, hence, allow legislators to intervene and/or assume duties that properly belong to the sphere of budget execution. Indeed, by virtue of the foregoing, legislators have been, in one form or another, authorized to participate in – as Guingona, Jr. puts it – "the various operational aspects of budgeting," including "the evaluation of work and financial plans for individual activities" and the "regulation and release of funds" in violation of the separation of powers principle. The fundamental rule, as categorically articulated in Abakada, cannot be overstated – from the moment the law becomes effective, any provision of law that empowers Congress or any of its members to play any role in the implementation or enforcement of the law violates the principle of separation of powers and is thus unconstitutional.191 That the said authority is treated as merely recommendatory in nature does not alter its unconstitutional tenor since the prohibition, to repeat, covers any role in the implementation or enforcement of the law. Towards this end, the Court must therefore abandon its ruling in Philconsa which sanctioned the conduct of legislator identification on the guise that the same is merely recommendatory and, as such, respondents‘ reliance on the same falters altogether.
Besides, it must be pointed out that respondents have nonetheless failed to substantiate their position that the identification authority of legislators is only of recommendatory import. Quite the contrary, respondents – through the statements of the Solicitor General during the Oral Arguments – have admitted that the identification of the legislator constitutes a mandatory requirement before his PDAF can be tapped as a funding source, thereby highlighting the indispensability of the said act to the entire budget execution process:192
Justice Bernabe: Now, without the individual legislator’s identification of the project, can the PDAF of the legislator be utilized?
Solicitor General Jardeleza: No, Your Honor.
Justice Bernabe: It cannot?
Solicitor General Jardeleza: It cannot… (interrupted)
Justice Bernabe: So meaning you should have the identification of the project by the individual legislator?
Solicitor General Jardeleza: Yes, Your Honor.
x x x x
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.
x x x x
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.
x x x x
Solictor General Jardeleza: What we mean by mandatory, Your Honor, is we were replying to a question, "How can a legislator make sure that he is able to get PDAF Funds?" It is mandatory in the sense that he must identify, in that sense, Your Honor. Otherwise, if he does not identify, he cannot avail of the PDAF Funds and his district would not be able to have PDAF Funds, only in that sense, Your Honor. (Emphases supplied)
Thus, for all the foregoing reasons, the Court hereby declares the 2013 PDAF Article as well as all other provisions of law which similarly allow legislators to wield any form of post-enactment authority in the implementation or enforcement of the budget, unrelated to congressional oversight, as violative of the separation of powers principle and thus unconstitutional. Corollary thereto, informal practices, through which legislators have effectively intruded into the proper phases of budget execution, must be deemed as acts of grave abuse of discretion amounting to lack or excess of jurisdiction and, hence, accorded the same unconstitutional treatment. That such informal practices do exist and have, in fact, been constantly observed throughout the years has not been substantially disputed here. As pointed out by Chief Justice Maria Lourdes P.A. Sereno (Chief Justice Sereno) during the Oral Arguments of these cases:193
Chief Justice Sereno:
Now, from the responses of the representative of both, the DBM and two (2) Houses of Congress, if we enforces the initial thought that I have, after I had seen the extent of this research made by my staff, that neither the Executive nor Congress frontally faced the question of constitutional compatibility of how they were engineering the budget process. In fact, the words you have been using, as the three lawyers of the DBM, and both Houses of Congress has also been using is surprise; surprised that all of these things are now surfacing. In fact, I thought that what the 2013 PDAF provisions did was to codify in one section all the past practice that had been done since 1991. In a certain sense, we should be thankful that they are all now in the PDAF Special Provisions. x x x (Emphasis and underscoring supplied)
Ultimately, legislators cannot exercise powers which they do not have, whether through formal measures written into the law or informal practices institutionalized in government agencies, else the Executive department be deprived of what the Constitution has vested as its own.
2. Non-delegability of Legislative Power.
a. Statement of Principle.
As an adjunct to the separation of powers principle,194 legislative power shall be exclusively exercised by the body to which the Constitution has conferred the same. In particular, Section 1, Article VI of the 1987 Constitution states that such power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.195 Based on this provision, it is clear that only Congress, acting as a bicameral body, and the people, through the process of initiative and referendum, may constitutionally wield legislative power and no other. This premise embodies the principle of non-delegability of legislative power, and the only recognized exceptions thereto would be: (a) delegated legislative power to local governments which, by immemorial practice, are allowed to legislate on purely local matters;196 and (b) constitutionally-grafted exceptions such as the authority of the President to, by law, exercise powers necessary and proper to carry out a declared national policy in times of war or other national emergency,197 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.198
Notably, the principle of non-delegability should not be confused as a restriction to delegate rule-making authority to implementing agencies for the limited purpose of either filling up the details of the law for its enforcement (supplementary rule-making) or ascertaining facts to bring the law into actual operation (contingent rule-making).199 The conceptual treatment and limitations of delegated rule-making were explained in the case of People v. Maceren200 as follows:
The grant of the rule-making power to administrative agencies is a relaxation of the principle of separation of powers and is an exception to the nondelegation of legislative powers. Administrative regulations or "subordinate legislation" calculated to promote the public interest are necessary because of "the growing complexity of modern life, the multiplication of the subjects of governmental regulations, and the increased difficulty of administering the law."
x x x x
Nevertheless, it must be emphasized that the rule-making power must be confined to details for regulating the mode or proceeding to carry into effect the law as it has been enacted. The power cannot be extended to amending or expanding the statutory requirements or to embrace matters not covered by the statute. Rules that subvert the statute cannot be sanctioned. (Emphases supplied)
b. Application.
In the cases at bar, the Court observes that the 2013 PDAF Article, insofar as it confers post-enactment identification authority to individual legislators, violates the principle of non-delegability since said legislators are effectively allowed to individually exercise the power of appropriation, which – as settled in Philconsa – is lodged in Congress.201 That the power to appropriate must be exercised only through legislation is clear from Section 29(1), Article VI of the 1987 Constitution which states that: "No money shall be paid out of the Treasury except in pursuance of an appropriation made by law." To understand what constitutes an act of appropriation, the Court, in Bengzon v. Secretary of Justice and Insular Auditor202 (Bengzon), held that the power of appropriation involves (a) the setting apart by law of a certain sum from the public revenue for (b) a specified purpose. Essentially, under the 2013 PDAF Article,
individual legislators are given a personal lump-sum fund from which they are able to dictate (a) how much from such fund would go to (b) a specific project or beneficiary that they themselves also determine. As these two (2) acts comprise the exercise of the power of appropriation as described in Bengzon, and given that the 2013 PDAF Article authorizes individual legislators to perform the same, undoubtedly, said legislators have been conferred the power to legislate which the Constitution does not, however, allow. Thus, keeping with the principle of non-delegability of legislative power, the Court hereby declares the 2013 PDAF Article, as well as all other forms of Congressional Pork Barrel which contain the similar legislative identification feature as herein discussed, as unconstitutional.
3. Checks and Balances.
a. Statement of Principle; Item-Veto Power.
The fact that the three great powers of government are intended to be kept separate and distinct does not mean that they are absolutely unrestrained and independent of each other. The Constitution has also provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government.203
A prime example of a constitutional check and balance would be the President’s power to veto an item written into an appropriation, revenue or tariff bill submitted to him by Congress for approval through a process known as "bill presentment." The President‘s item-veto power is found in Section 27(2), Article VI of the 1987 Constitution which reads as follows:
Sec. 27. x x x.
x x x x
(2) The President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object.
The presentment of appropriation, revenue or tariff bills to the President, wherein he may exercise his power of item-veto, forms part of the "single, finely wrought and exhaustively considered, procedures" for law-passage as specified under the Constitution.204 As stated in Abakada, the final step in the law-making process is the "submission of the bill to the President for approval. Once approved, it takes effect as law after the required publication."205
Elaborating on the President‘s item-veto power and its relevance as a check on the legislature, the Court, in Bengzon, explained that:206
The former Organic Act and the present Constitution of the Philippines make the Chief Executive an integral part of the law-making power. His disapproval of a bill, commonly known as a veto, is essentially a legislative act. The questions presented to the mind of the Chief Executive are precisely the same as those the legislature must determine in passing a bill, except that his will be a broader point of view.
The Constitution is a limitation upon the power of the legislative department of the government, but in this respect it is a grant of power to the executive department. The Legislature has the affirmative power to enact laws; the Chief Executive has the negative power by the constitutional exercise of which he may defeat the will of the Legislature. It follows that the Chief
Executive must find his authority in the Constitution. But in exercising that authority he may not be confined to rules of strict construction or hampered by the unwise interference of the judiciary. The courts will indulge every intendment in favor of the constitutionality of a veto in the same manner as they will presume the constitutionality of an act as originally passed by the Legislature. (Emphases supplied)
The justification for the President‘s item-veto power rests on a variety of policy goals such as to prevent log-rolling legislation,207 impose fiscal restrictions on the legislature, as well as to fortify the executive branch‘s role in the budgetary process.208 In Immigration and Naturalization Service v. Chadha, the US Supreme Court characterized the President‘s item-power as "a salutary check upon the legislative body, calculated to guard the community against the effects of factions, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body"; phrased differently, it is meant to "increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design."209
For the President to exercise his item-veto power, it necessarily follows that there exists a proper "item" which may be the object of the veto. An item, as defined in the field of appropriations, pertains to "the particulars, the details, the distinct and severable parts of the appropriation or of the bill." In the case of Bengzon v. Secretary of Justice of the Philippine Islands,210 the US Supreme Court characterized an item of appropriation as follows:
An item of an appropriation bill obviously means an item which, in itself, is a specific appropriation of money, not some general provision of law which happens to be put into an appropriation bill. (Emphases supplied)
On this premise, it may be concluded that an appropriation bill, to ensure that the President may be able to exercise his power of item veto, must contain "specific appropriations of money" and not only "general provisions" which provide for parameters of appropriation.
Further, it is significant to point out that an item of appropriation must be an item characterized by singular correspondence – meaning an allocation of a specified singular amount for a specified singular purpose, otherwise known as a "line-item."211 This treatment not only allows the item to be consistent with its definition as a "specific appropriation of money" but also ensures that the President may discernibly veto the same. Based on the foregoing formulation, the existing Calamity Fund, Contingent Fund and the Intelligence Fund, being appropriations which state a specified amount for a specific purpose, would then be considered as "line- item" appropriations which are rightfully subject to item veto. Likewise, it must be observed that an appropriation may be validly apportioned into component percentages or values; however, it is crucial that each percentage or value must be allocated for its own corresponding purpose for such component to be considered as a proper line-item. Moreover, as Justice Carpio correctly pointed out, a valid appropriation may even have several related purposes that are by accounting and budgeting practice considered as one purpose, e.g., MOOE (maintenance and other operating expenses), in which case the related purposes shall be deemed sufficiently specific for the exercise of the President‘s item veto power. Finally, special purpose funds and discretionary funds would equally square with the constitutional mechanism of item-veto for as long as they follow the rule on singular correspondence as herein discussed. Anent special purpose funds, it must be added that Section 25(4), Article VI of the 1987 Constitution requires that the "special appropriations bill shall specify the purpose for which it is intended, and shall be supported by funds actually available as certified by the National Treasurer, or t o be raised
by a corresponding revenue proposal therein." Meanwhile, with respect to discretionary funds, Section 2 5(6), Article VI of the 1987 Constitution requires that said funds "shall be disbursed only for public purposes to be supported by appropriate vouchers and subject to such guidelines as may be prescribed by law."
In contrast, what beckons constitutional infirmity are appropriations which merely provide for a singular lump-sum amount to be tapped as a source of funding for multiple purposes. Since such appropriation type necessitates the further determination of both the actual amount to be expended and the actual purpose of the appropriation which must still be chosen from the multiple purposes stated in the law, it cannot be said that the appropriation law already indicates a "specific appropriation of money‖ and hence, without a proper line-item which the President may veto. As a practical result, the President would then be faced with the predicament of either vetoing the entire appropriation if he finds some of its purposes wasteful or undesirable, or approving the entire appropriation so as not to hinder some of its legitimate purposes. Finally, it may not be amiss to state that such arrangement also raises non-delegability issues considering that the implementing authority would still have to determine, again, both the actual amount to be expended and the actual purpose of the appropriation. Since the foregoing determinations constitute the integral aspects of the power to appropriate, the implementing authority would, in effect, be exercising legislative prerogatives in violation of the principle of non-delegability.
b. Application.
In these cases, petitioners claim that "in the current x x x system where the PDAF is a lump-sum appropriation, the legislator‘s identification of the projects after the passage of the GAA denies the President the chance to veto that item later on."212 Accordingly, they submit that the "item veto power of the President mandates that appropriations bills adopt line-item budgeting" and that "Congress cannot choose a mode of budgeting which effectively renders the constitutionally-given power of the President useless."213
On the other hand, respondents maintain that the text of the Constitution envisions a process which is intended to meet the demands of a modernizing economy and, as such, lump-sum appropriations are essential to financially address situations which are barely foreseen when a GAA is enacted. They argue that the decision of the Congress to create some lump-sum appropriations is constitutionally allowed and textually-grounded.214
The Court agrees with petitioners.
Under the 2013 PDAF Article, the amount of 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 President‘s power of item veto. As petitioners aptly point out, the above-described system forces the President to decide between (a) accepting the entire 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 President‘s power of item veto.
In fact, on the accountability side, the same lump-sum budgeting scheme has, as the CoA Chairperson relays, "limited state auditors from obtaining relevant data and information that would aid in more stringently auditing the utilization of said Funds."216 Accordingly, she recommends the adoption of a "line by line budget or amount per proposed program, activity or project, and per implementing agency."217
Hence, in view of the reasons above-stated, the Court finds the 2013 PDAF Article, as well as all Congressional Pork Barrel Laws of similar operation, to be unconstitutional. That such budgeting system provides for a greater degree of flexibility to account for future contingencies cannot be an excuse to defeat what the Constitution requires. Clearly, the first and essential truth of the matter is that unconstitutional means do not justify even commendable ends.218
c. Accountability.
Petitioners further relate that the system under which various forms of Congressional Pork Barrel operate defies public accountability as it renders Congress incapable of checking itself or its Members. In particular, they point out that the Congressional Pork Barrel "gives each legislator a direct, financial interest in the smooth, speedy passing of the yearly budget" which turns them "from fiscalizers" into "financially-interested partners."219 They also claim that the system has an effect on re- election as "the PDAF excels in self-perpetuation of elective officials." Finally, they add that the "PDAF impairs the power of impeachment" as such "funds are indeed quite useful, ‘to well, accelerate the decisions of senators.‘"220
The Court agrees in part.
The aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that "public office is a public trust," is an overarching reminder that every instrumentality of government should exercise their official functions only in accordance with the principles of the Constitution which embodies the parameters of the people‘s trust. The notion of a public trust connotes accountability,221 hence, the various mechanisms in the Constitution which are designed to exact accountability from public officers.
Among others, an accountability mechanism with which the proper expenditure of public funds may be checked is the power of congressional oversight. As mentioned in Abakada,222 congressional oversight may be performed either through: (a) scrutiny based primarily on Congress‘ power of appropriation and the budget hearings conducted in connection with it, its power to ask heads of departments to appear before and be heard by either of its
Houses on any matter pertaining to their departments and its power of confirmation;223 or (b) investigation and monitoring of the implementation of laws pursuant to the power of Congress to conduct inquiries in aid of legislation.224
The Court agrees with petitioners that certain features embedded in some forms of Congressional Pork Barrel, among others the 2013 PDAF Article, has an effect on congressional oversight. The fact that individual legislators are given post-enactment roles in the implementation of the budget makes it difficult for them to become disinterested "observers" when scrutinizing, investigating or monitoring the implementation of the appropriation law. To a certain extent, the conduct of oversight would be tainted as said legislators, who are vested with post-enactment authority, would, in effect, be checking on activities in which they themselves participate. Also, it must be pointed out that this very same concept of post-enactment authorization runs afoul of Section 14, Article VI of the 1987 Constitution which provides that:
Sec. 14. No Senator or Member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or in any franchise or special privilege granted by the Government, or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation, or its subsidiary, during his term of office. He shall not intervene in any matter before any office of the Government for his pecuniary benefit or where he may be called upon to act on account of his office. (Emphasis supplied)
Clearly, allowing legislators to intervene in the various phases of project implementation – a matter before another office of government – renders them susceptible to taking undue advantage of their own office.
The Court, however, cannot completely agree that the same post-enactment authority and/or the individual legislator‘s control of his PDAF per se would allow him to perpetuate himself in office. Indeed, while the Congressional Pork Barrel and a legislator‘s use thereof may be linked to this area of interest, the use of his PDAF for re-election purposes is a matter which must be analyzed based on particular facts and on a case-to-case basis.
Finally, while the Court accounts for the possibility that the close operational proximity between legislators and the Executive department, through the former‘s post-enactment participation, may affect the process of impeachment, this matter largely borders on the domain of politics and does not strictly concern the Pork Barrel System‘s intrinsic constitutionality. As such, it is an improper subject of judicial assessment.
In sum, insofar as its post-enactment features dilute congressional oversight and violate Section 14, Article VI of the 1987 Constitution, thus impairing public accountability, the 2013 PDAF Article and other forms of Congressional Pork Barrel of similar nature are deemed as unconstitutional.
4. Political Dynasties.
One of the petitioners submits that the Pork Barrel System enables politicians who are members of political dynasties to accumulate funds to perpetuate themselves in power, in contravention of Section 26, Article II of the 1987 Constitution225 which states that:
Sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law. (Emphasis and underscoring supplied)
At the outset, suffice it to state that the foregoing provision is considered as not self-executing due to the qualifying phrase "as may be defined by law." In this respect, said provision does not, by and of itself, provide a judicially enforceable constitutional right but merely specifies guideline for legislative or executive action.226Therefore, since there appears to be no standing law which crystallizes the policy on political dynasties for enforcement, the Court must defer from ruling on this issue.
In any event, the Court finds the above-stated argument on this score to be largely speculative since it has not been properly demonstrated how the Pork Barrel System would be able to propagate political dynasties.
5. Local Autonomy.
The State‘s policy on local autonomy is principally stated in Section 25, Article II and Sections 2 and 3, Article X of the 1987 Constitution which read as follows:
ARTICLE II
Sec. 25. The State shall ensure the autonomy of local governments.
ARTICLE X
Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.
Sec. 3. The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units.
Pursuant thereto, Congress enacted RA 7160,227 otherwise known as the "Local Government Code of 1991" (LGC), wherein the policy on local autonomy had been more specifically explicated as follows:
Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy of the State that the territorial and political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant communities and make them more effective partners in the attainment of national goals. Toward this end, the State shall provide for a more responsive and accountable local government structure instituted through a system of decentralization whereby local government units shall be given more powers, authority, responsibilities, and resources. The process of decentralization shall proceed from the National Government to the local government units.
x x x x
(c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic consultations with appropriate local government units, nongovernmental and people‘s organizations, and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions. (Emphases and underscoring supplied)
The above-quoted provisions of the Constitution and the LGC reveal the policy of the State to empower local government units (LGUs) to develop and ultimately, become self-sustaining and effective contributors to the national economy. As explained by the Court in Philippine Gamefowl Commission v. Intermediate Appellate Court:228
This is as good an occasion as any to stress the commitment of the Constitution to the policy of local autonomy which is intended to provide the needed impetus and encouragement to the development of our local political subdivisions as "self - reliant communities." In the words of Jefferson, "Municipal corporations are the small republics from which the great one derives its strength." The vitalization of local governments will enable their inhabitants to fully exploit their resources and more important, imbue them with a deepened sense of involvement in public affairs as members of the body politic. This objective could be blunted by undue interference by the national government in purely local affairs which are best resolved by the officials and inhabitants of such political units. The decision we reach today conforms not only to the letter of the pertinent laws but also to the spirit of the Constitution.229 (Emphases and underscoring supplied)
In the cases at bar, petitioners contend that the Congressional Pork Barrel goes against the constitutional principles on local autonomy since it allows district representatives, who are national officers, to substitute their judgments in utilizing public funds for local development.230 The Court agrees with petitioners.
Philconsa described the 1994 CDF as an attempt "to make equal the unequal" and that "it is also a recognition that individual members of Congress, far more than the President and their congressional colleagues, are likely to be knowledgeable about the needs of their respective constituents and the priority to be given each project."231Drawing strength from this pronouncement, previous legislators justified its existence by stating that "the relatively small projects implemented under the Congressional Pork Barrel complement and link the national development goals to the countryside and grassroots as well as to depressed areas which are overlooked by central agencies which are preoccupied with mega-projects.232 Similarly, in his August 23, 2013 speech on the "abolition" of PDAF and budgetary reforms, President Aquino mentioned that the Congressional Pork Barrel was originally established for a worthy goal, which is to enable the representatives to identify projects for communities that the LGU concerned cannot afford.233
Notwithstanding these declarations, the Court, however, finds an inherent defect in the system which actually belies the avowed intention of "making equal the unequal." In particular, the Court observes that the gauge of PDAF and CDF allocation/division is based solely on the fact of office, without taking into account the specific interests and peculiarities of the district the legislator represents. In this regard, the allocation/division limits are clearly not based on genuine parameters of equality, wherein economic or geographic indicators have been taken into consideration. As a result, a district representative of a highly-urbanized metropolis gets the same amount of funding as a district representative of a far-flung rural province which would be relatively "underdeveloped" compared to the former. To add, what rouses graver scrutiny is that even Senators and Party-List Representatives – and in some years, even the Vice-President –
who do not represent any locality, receive funding from the Congressional Pork Barrel as well. These certainly are anathema to the Congressional Pork Barrel‘s original intent which is "to make equal the unequal." Ultimately, the PDAF and CDF had become personal funds under the effective control of each legislator and given unto them on the sole account of their office.
The Court also observes that this concept of legislator control underlying the CDF and PDAF conflicts with the functions of the various Local Development Councils (LDCs) which are already legally mandated to "assist the corresponding sanggunian in setting the direction of economic and social development, and coordinating development efforts within its territorial jurisdiction."234 Considering that LDCs are instrumentalities whose functions are essentially geared towards managing local affairs,235 their programs, policies and resolutions should not be overridden nor duplicated by individual legislators, who are national officers that have no law-making authority except only when acting as a body. The undermining effect on local autonomy caused by the post-enactment authority conferred to the latter was succinctly put by petitioners in the following wise:236
With PDAF, a Congressman can simply bypass the local development council and initiate projects on his own, and even take sole credit for its execution. Indeed, this type of personality-driven project identification has not only contributed little to the overall development of the district, but has even contributed to "further weakening infrastructure planning and coordination efforts of the government."
Thus, insofar as individual legislators are authorized to intervene in purely local matters and thereby subvert genuine local autonomy, the 2013 PDAF Article as well as all other similar forms of Congressional Pork Barrel is deemed unconstitutional.
With this final issue on the Congressional Pork Barrel resolved, the Court now turns to the substantive issues involving the Presidential Pork Barrel.
C. Substantive Issues on the Presidential Pork Barrel.
1. Validity of Appropriation.
Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of PD1869 (now, amended by PD 1993), which respectively provide for the Malampaya Funds and the Presidential Social Fund, as invalid appropriations laws since they do not have the "primary and specific" purpose of authorizing the release of public funds from the National Treasury. Petitioners submit that Section 8 of PD 910 is not an appropriation law since the "primary and specific‖ purpose of PD 910 is the creation of an Energy Development Board and Section 8 thereof only created a Special Fund incidental thereto.237 In similar regard, petitioners argue that Section 12 of PD 1869 is neither a valid appropriations law since the allocation of the Presidential Social Fund is merely incidental to the "primary and specific" purpose of PD 1869 which is the amendment of the Franchise and Powers of PAGCOR.238 In view of the foregoing, petitioners suppose that such funds are being used without any valid law allowing for their proper appropriation in violation of Section 29(1), Article VI of the 1987 Constitution which states that: "No money shall be paid out of the Treasury except in pursuance of an appropriation made by law."239
The Court disagrees.
"An appropriation made by law‖ under the contemplation of Section 29(1), Article VI of the 1987 Constitution exists when a provision of law (a) sets apart a determinate or determinable240 amount of money and (b) allocates the same for a particular public purpose. These two minimum designations of amount and purpose stem from the very definition of the word "appropriation," which means "to allot, assign, set apart or apply to a particular use or purpose," and hence, if written into the law, demonstrate that the legislative intent to appropriate exists. As the Constitution "does not provide or prescribe any particular form of words or religious recitals in which an authorization or appropriation by Congress shall be made, except that it be ‘made by law,‘" an appropriation law may – according to Philconsa – be "detailed and as broad as Congress wants it to be" for as long as the intent to appropriate may be gleaned from the same. As held in the case of Guingona, Jr.:241
There is no provision in our Constitution that provides or prescribes any particular form of words or religious recitals in which an authorization or appropriation by Congress shall be made, except that it be "made by law," such as precisely the authorization or appropriation under the questioned presidential decrees. In other words, in terms of time horizons, an appropriation may be made impliedly (as by past but subsisting legislations) as well as expressly for the current fiscal year (as by enactment of laws by the present Congress), just as said appropriation may be made in general as well as in specific terms. The Congressional authorization may be embodied in annual laws, such as a general appropriations act or in special provisions of laws of general or special application which appropriate public funds for specific public purposes, such as the questioned decrees. An appropriation measure is sufficient if the legislative intention clearly and certainly appears from the language employed (In re Continuing Appropriations, 32 P. 272), whether in the past or in the present. (Emphases and underscoring supplied)
Likewise, as ruled by the US Supreme Court in State of Nevada v. La Grave:242
To constitute an appropriation there must be money placed in a fund applicable to the designated purpose. The word appropriate means to allot, assign, set apart or apply to a particular use or purpose. An appropriation in the sense of the constitution means the setting apart a portion of the public funds for a public purpose. No particular form of words is necessary for the purpose, if the intention to appropriate is plainly manifested. (Emphases supplied)
Thus, based on the foregoing, the Court cannot sustain the argument that the appropriation must be the "primary and specific" purpose of the law in order for a valid appropriation law to exist. To reiterate, if a legal provision designates a determinate or determinable amount of money and allocates the same for a particular public purpose, then the legislative intent to appropriate becomes apparent and, hence, already sufficient to satisfy the requirement of an "appropriation made by law" under contemplation of the Constitution.
Section 8 of PD 910 pertinently provides:
Section 8. Appropriations. x x x
All fees, revenues and receipts of the Board from any and all sources including receipts from service contracts and agreements such as application and processing fees, signature bonus, discovery bonus, production bonus; all money collected from concessionaires, representing unspent work obligations, fines and penalties under the Petroleum Act of 1949; as well as the government share representing royalties, rentals, production share on service contracts and
similar payments on the exploration, development and exploitation of energy resources, shall form part of a Special Fund to be used to finance energy resource development and exploitation programs and projects of the government and for such other purposes as may be hereafter directed by the President. (Emphases supplied)
Whereas Section 12 of PD 1869, as amended by PD 1993, reads:
Sec. 12. Special Condition of Franchise. — After deducting five (5%) percent as Franchise Tax, the Fifty (50%) percent share of the Government in the aggregate gross earnings of the Corporation from this Franchise, or 60% if the aggregate gross earnings be less than 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-à-vis the above-mentioned principles, it may then be concluded that (a) Section 8 of PD 910, which creates a Special Fund comprised of "all fees, revenues, and receipts of the Energy Development Board from any and all sources" (a determinable amount) "to be used to finance energy resource development and exploitation programs and projects of the government and for such other purposes as may be hereafter directed by the President" (a specified public purpose), and (b) Section 12 of PD 1869, as amended by PD 1993, which similarly sets aside, "after deducting five (5%) percent as Franchise Tax, the Fifty (50%) percent share of the Government in the aggregate gross earnings of PAGCOR, or 60%, if the aggregate gross earnings be less than 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 afore-discussed.
2. Undue Delegation.
On a related matter, petitioners contend that Section 8 of PD 910 constitutes an undue delegation of legislative power since the phrase "and for such other purposes as may be hereafter directed by the President" gives the President "unbridled discretion to determine for what purpose the funds will be used."243 Respondents, on the other hand, urged the Court to apply the principle of ejusdem generis to the same section and thus, construe the phrase "and for such other purposes as may be hereafter directed by the President" to refer only to other
purposes related "to energy resource development and exploitation programs and projects of the government."244
The Court agrees with petitioners‘ submissions.
While the designation of a determinate or determinable amount for a particular public purpose is sufficient for a legal appropriation to exist, the appropriation law must contain adequate legislative guidelines if the same law delegates rule-making authority to the Executive245 either for the purpose of (a) filling up the details of the law for its enforcement, known as supplementary rule-making, or (b) ascertaining facts to bring the law into actual operation, referred to as contingent rule-making.246 There are two (2) fundamental tests to ensure that the legislative guidelines for delegated rule-making are indeed adequate. The first test is called the "completeness test." Case law states that a law is complete when it sets forth therein the policy to be executed, carried out, or implemented by the delegate. On the other hand, the second test is called the "sufficient standard test." Jurisprudence holds that a law lays down a sufficient standard when it provides adequate guidelines or limitations in the law to map out the boundaries of the delegate‘s authority and prevent the delegation from running riot.247To be sufficient, the standard must specify the limits of the delegate‘s authority, announce the legislative policy, and identify the conditions under which it is to be implemented.248
In view of the foregoing, the Court agrees with petitioners that the phrase "and for such other purposes as may be hereafter directed by the President" under Section 8 of PD 910 constitutes an undue delegation of legislative power insofar as it does not lay down a sufficient standard to adequately determine the limits of the President‘s authority with respect to the purpose for which the Malampaya Funds may be used. As it reads, the said phrase gives the President wide latitude to use the Malampaya Funds for any other purpose he may direct and, in effect, allows him to unilaterally appropriate public funds beyond the purview of the law. That the subject phrase may be confined only to "energy resource development and exploitation programs and projects of the government" under the principle of ejusdem generis, meaning that the general word or phrase is to be construed to include – or be restricted to – things akin to, resembling, or of the same kind or class as those specifically mentioned,249 is belied by three (3) reasons: first, the phrase "energy resource development and exploitation programs and projects of the government" states a singular and general class and hence, cannot be treated as a statutory reference of specific things from which the general phrase "for such other purposes" may be limited; second, the said phrase also exhausts the class it represents, namely energy development programs of the government;250 and, third, the Executive department has, in fact, used the Malampaya Funds for non-energy related purposes under the subject phrase, thereby contradicting respondents‘ own position that it is limited only to "energy resource development and exploitation programs and projects of the government."251 Thus, while Section 8 of PD 910 may have passed the completeness test since the policy of energy development is clearly deducible from its text, the phrase "and for such other purposes as may be hereafter directed by the President" under the same provision of law should nonetheless be stricken down as unconstitutional as it lies independently unfettered by any sufficient standard of the delegating law. This notwithstanding, it must be underscored that the rest of Section 8, insofar as it allows for the use of the Malampaya Funds "to finance energy resource development and exploitation programs and projects of the government," remains legally effective and subsisting. Truth be told, the declared unconstitutionality of the aforementioned phrase is but an assurance that the Malampaya Funds would be used – as it should be used – only in accordance with the avowed purpose and intention of PD 910.
As for the Presidential Social Fund, the Court takes judicial notice of the fact that Section 12 of PD 1869 has already been amended by PD 1993 which thus moots the parties‘ submissions on the same.252 Nevertheless, since the amendatory provision may be readily examined under the current parameters of discussion, the Court proceeds to resolve its constitutionality.
Primarily, Section 12 of PD 1869, as amended by PD 1993, indicates that the Presidential Social Fund may be used "to first, finance the priority infrastructure development projects and second, to finance the restoration of damaged or destroyed facilities due to calamities, as may be directed and authorized by the Office of the President of the Philippines." The Court finds that while the second indicated purpose adequately curtails the authority of the President to spend the Presidential Social Fund only for restoration purposes which arise from calamities, the first indicated purpose, however, gives him carte blanche authority to use the same fund for any infrastructure project he may so determine as a "priority". Verily, the law does not supply a definition of "priority in frastructure development projects" and hence, leaves the President without any guideline to construe the same. To note, the delimitation of a project as one of "infrastructure" is too broad of a classification since the said term could pertain to any kind of facility. This may be deduced from its lexicographic definition as follows: "the underlying framework of a system, especially public services and facilities (such as highways, schools, bridges, sewers, and water-systems) needed to support commerce as well as economic and residential development."253In fine, the phrase "to finance the priority infrastructure development projects" must be stricken down as unconstitutional since – similar to the above-assailed provision under Section 8 of PD 910 – it lies independently unfettered by any sufficient standard of the delegating law. As they are severable, all other provisions of Section 12 of PD 1869, as amended by PD 1993, remains legally effective and subsisting.
D. Ancillary Prayers. 1.
Petitioners’ Prayer to be Furnished Lists and Detailed Reports.
Aside from seeking the Court to declare the Pork Barrel System unconstitutional – as the Court did so in the context of its pronouncements made in this Decision – petitioners equally pray that the Executive Secretary and/or the DBM be ordered to release to the CoA and to the public: (a) "the complete schedule/list of legislators who have availed of their PDAF and VILP from the years 2003 to 2013, specifying the use of the funds, the project or activity and the recipient entities or individuals, and all pertinent data thereto" (PDAF Use Schedule/List);254 and (b) "the use of the Executive‘s lump-sum, discretionary funds, including the proceeds from the x x x Malampaya Funds and remittances from the PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity and the recipient entities or individuals, and all pertinent data thereto"255 (Presidential Pork Use Report). Petitioners‘ prayer is grounded on Section 28, Article II and Section 7, Article III of the 1987 Constitution which read as follows:
ARTICLE II
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.
ARTICLE III Sec. 7.
The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.
The Court denies petitioners‘ submission.
Case law instructs that the proper remedy to invoke the right to information is to file a petition for mandamus. As explained in the case of Legaspi v. Civil Service Commission:256
While the manner of examining public records may be subject to reasonable regulation by the government agency in custody thereof, the duty to disclose the information of public concern, and to afford access to public records cannot be discretionary on the part of said agencies. Certainly, its performance cannot be made contingent upon the discretion of such agencies. Otherwise, the enjoyment of the constitutional right may be rendered nugatory by any whimsical exercise of agency discretion. The constitutional duty, not being discretionary, its performance may be compelled by a writ of mandamus in a proper case.
But what is a proper case for Mandamus to issue? In the case before Us, the public right to be enforced and the concomitant duty of the State are unequivocably set forth in the Constitution.
The decisive question on the propriety of the issuance of the writ of mandamus in this case is, whether the information sought by the petitioner is within the ambit of the constitutional guarantee. (Emphases supplied)
Corollarily, in the case of Valmonte v. Belmonte Jr.257 (Valmonte), it has been clarified that the right to information does not include the right to compel the preparation of "lists, abstracts, summaries and the like." In the same case, it was stressed that it is essential that the "applicant has a well -defined, clear and certain legal right to the thing demanded and that it is the imperative duty of defendant to perform the act required." Hence, without the foregoing substantiations, the Court cannot grant a particular request for information. The pertinent portions of Valmonte are hereunder quoted:258
Although citizens are afforded the right to information and, pursuant thereto, are entitled to "access to official records," the Constitution does not accord them a right to compel custodians of official records to prepare lists, abstracts, summaries and the like in their desire to acquire information on matters of public concern.
It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a well-defined, clear and certain legal right to the thing demanded and that it is the imperative duty of defendant to perform the act required. The corresponding duty of the respondent to perform the required act must be clear and specific Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126 SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.
The request of the petitioners fails to meet this standard, there being no duty on the part of respondent to prepare the list requested. (Emphases supplied)
In these cases, aside from the fact that none of the petitions are in the nature of mandamus actions, the Court finds that petitioners have failed to establish a "a well-defined, clear and certain legal right" to be furnished by the Executive Secretary and/or the DBM of their requested PDAF Use Schedule/List and Presidential Pork Use Report. Neither did petitioners assert any law or administrative issuance which would form the bases of the latter‘s duty to furnish them
with the documents requested. While petitioners pray that said information be equally released to the CoA, it must be pointed out that the CoA has not been impleaded as a party to these cases nor has it filed any petition before the Court to be allowed access to or to compel the release of any official document relevant to the conduct of its audit investigations. While the Court recognizes that the information requested is a matter of significant public concern, however, if only to ensure that the parameters of disclosure are properly foisted and so as not to unduly hamper the equally important interests of the government, it is constrained to deny petitioners‘ prayer on this score, without prejudice to a proper mandamus case which they, or even the CoA, may choose to pursue through a separate petition.
It bears clarification that the Court‘s denial herein should only cover petitioners‘ plea to be furnished with such schedule/list and report and not in any way deny them, or the general public, access to official documents which are already existing and of public record. Subject to reasonable regulation and absent any valid statutory prohibition, access to these documents should not be proscribed. Thus, in Valmonte, while the Court denied the application for mandamus towards the preparation of the list requested by petitioners therein, it nonetheless allowed access to the documents sought for by the latter, subject, however, to the custodian‘s reasonable regulations,viz.:259
In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS, subject to reasonable regulations that the latter may promulgate relating to the manner and hours of examination, to the end that damage to or loss of the records may be avoided, that undue interference with the duties of the custodian of the records may be prevented and that the right of other persons entitled to inspect the records may be insured Legaspi v. Civil Service Commission, supra at p. 538, quoting Subido v. Ozaeta, 80 Phil. 383, 387. The petition, as to the second and third alternative acts sought to be done by petitioners, is meritorious.
However, the same cannot be said with regard to the first act sought by petitioners, i.e.,
"to furnish petitioners the list of the names of the Batasang Pambansa members belonging to the UNIDO and PDP-Laban who were able to secure clean loans immediately before the February 7 election thru the intercession/marginal note of the then First Lady Imelda Marcos."
The Court, therefore, applies the same treatment here.
2. Petitioners’ Prayer to Include Matters in Congressional Deliberations.
Petitioners further seek that the Court "order the inclusion in budgetary deliberations with the Congress of all presently, off-budget, lump sum, discretionary funds including but not limited to, proceeds from the x x x Malampaya Fund, remittances from the PAGCOR and the PCSO or the Executive‘s Social Funds."260
Suffice it to state that the above-stated relief sought by petitioners covers a matter which is generally left to the prerogative of the political branches of government. Hence, lest the Court itself overreach, it must equally deny their prayer on this score.
3. Respondents’ Prayer to Lift TRO; Consequential Effects of Decision.
The final issue to be resolved stems from the interpretation accorded by the DBM to the concept of released funds. In response to the Court‘s September 10, 2013 TRO that enjoined the
release of the remaining PDAF allocated for the year 2013, the DBM issued Circular Letter No. 2013-8 dated September 27, 2013 (DBM Circular 2013-8) which pertinently reads as follows:
3.0 Nonetheless, PDAF projects funded under the FY 2013 GAA, where a Special Allotment Release Order (SARO) has been issued by the DBM and such SARO has been obligated by the implementing agencies prior to the issuance of the TRO, may continually be implemented and disbursements thereto effected by the agencies concerned.
Based on the text of the foregoing, the DBM authorized the continued implementation and disbursement of PDAF funds as long as they are: first, covered by a SARO; and, second, that said SARO had been obligated by the implementing agency concerned prior to the issuance of the Court‘s September 10, 2013 TRO.
Petitioners take issue with the foregoing circular, arguing that "the issuance of the SARO does not yet involve the release of funds under the PDAF, as release is only triggered by the issuance of a Notice of Cash Allocation [(NCA)]."261 As such, PDAF disbursements, even if covered by an obligated SARO, should remain enjoined.
For their part, respondents espouse that the subject TRO only covers "unreleased and unobligated allotments." They explain that once a SARO has been issued and obligated by the implementing agency concerned, the PDAF funds covered by the same are already "beyond the reach of the TRO because they cannot be considered as ‘remaining PDAF.‘" They conclude that this is a reasonable interpretation of the TRO by the DBM.262
The Court agrees with petitioners in part.
At the outset, it must be observed that the issue of whether or not the Court‘s September 10, 2013 TRO should be lifted is a matter rendered moot by the present Decision. The unconstitutionality of the 2013 PDAF Article as declared herein has the consequential effect of converting the temporary injunction into a permanent one. Hence, from the promulgation of this Decision, the release of the remaining PDAF funds for 2013, among others, is now permanently enjoined.
The propriety of the DBM‘s interpretation of the concept of "release" must, nevertheless, be resolved as it has a practical impact on the execution of the current Decision. In particular, the Court must resolve the issue of whether or not PDAF funds covered by obligated SAROs, at the time this Decision is promulgated, may still be disbursed following the DBM‘s interpretation in DBM Circular 2013-8.
On this score, the Court agrees with petitioners‘ posturing for the fundamental reason that funds covered by an obligated SARO are yet to be "released" under legal contemplation. A SARO, as defined by the DBM itself in its website, is "aspecific authority issued to identified agencies to incur obligations not exceeding a given amount during a specified period for the purpose indicated. It shall cover expenditures the release of which is subject to compliance with specific laws or regulations, or is subject to separate approval or clearance by competent authority."263
Based on this definition, it may be gleaned that a SARO only evinces the existence of an obligation and not the directive to pay. Practically speaking, the SARO does not have the direct and immediate effect of placing public funds beyond the control of the disbursing authority. In fact, a SARO may even be withdrawn under certain circumstances which will prevent the actual
release of funds. On the other hand, the actual release of funds is brought about by the issuance of the NCA,264 which is subsequent to the issuance of a SARO. As may be determined from the statements of the DBM representative during the Oral Arguments:265
Justice Bernabe: Is the notice of allocation issued simultaneously with the SARO?
x x x x
Atty. Ruiz: It comes after. The SARO, Your Honor, is only the go signal for the agencies to obligate or to enter into commitments. The NCA, Your Honor, is already the go signal to the treasury for us to be able to pay or to liquidate the amounts obligated in the SARO; so it comes after. x x x The NCA, Your Honor, is the go signal for the MDS for the authorized government-disbursing banks to, therefore, pay the payees depending on the projects or projects covered by the SARO and the NCA.
Justice Bernabe: Are there instances that SAROs are cancelled or revoked?
Atty. Ruiz: Your Honor, I would like to instead submit that there are instances that the SAROs issued are withdrawn by the DBM.
Justice Bernabe: They are withdrawn?
Atty. Ruiz: Yes, Your Honor x x x. (Emphases and underscoring supplied)
Thus, unless an NCA has been issued, public funds should not be treated as funds which have been "released." In this respect, therefore, the disbursement of 2013 PDAF funds which are only covered by obligated SAROs, and without any corresponding NCAs issued, must, at the time of this Decision’s promulgation, be enjoined and consequently reverted to the unappropriated surplus of the general fund. Verily, in view of the declared unconstitutionality of the 2013 PDAF Article, the funds appropriated pursuant thereto cannot be disbursed even though already obligated, else the Court sanctions the dealing of funds coming from an unconstitutional source.
This same pronouncement must be equally applied to (a) the Malampaya Funds which have been obligated but not released – meaning, those merely covered by a SARO – under the phrase "and for such other purposes as may be hereafter directed by the President" pursuant to Section 8 of PD 910; and (b) funds sourced from the Presidential Social Fund under the phrase "to finance the priority infrastructure development projects" pursuant to Section 12 of PD 1869, as amended by PD 1993, which were altogether declared by the Court as unconstitutional. However, these funds should not be reverted to the general fund as afore-stated but instead, respectively remain under the Malampaya Funds and the Presidential Social Fund to be utilized for their corresponding special purposes not otherwise declared as unconstitutional.
E. Consequential Effects of Decision.
As a final point, it must be stressed that the Court‘s pronouncement anent the unconstitutionality of (a) the 2013 PDAF Article and its Special Provisions, (b) all other Congressional Pork Barrel provisions similar thereto, and (c) the phrases (1) "and for such other purposes as may be hereafter directed by the President" under Section 8 of PD 910, and (2) "to finance the priority
infrastructure development projects" under Section 12 of PD 1869, as amended by PD 1993, must only be treated as prospective in effect in view of the operative fact doctrine.
To explain, the operative fact doctrine exhorts the recognition that until the judiciary, in an appropriate case, declares the invalidity of a certain legislative or executive act, such act is presumed constitutional and thus, entitled to obedience and respect and should be properly enforced and complied with. As explained in the recent case of Commissioner of Internal Revenue v. San Roque Power Corporation,266 the doctrine merely "reflects awareness that precisely because the judiciary is the governmental organ which has the final say on whether or not a legislative or executive measure is valid, a period of time may have elapsed before it can exercise the power of judicial review that may lead to a declaration of nullity. It would be to deprive the law of its quality of fairness and justice then, if there be no recognition of what had transpired prior to such adjudication."267 "In the language of an American Supreme Court decision: ‘The actual existence of a statute, prior to such a determination of unconstitutionality, is an operative fact and may have consequences which cannot justly be ignored.‘"268
For these reasons, this Decision should be heretofore applied prospectively.
Conclusion
The Court renders this Decision to rectify an error which has persisted in the chronicles of our history. In the final analysis, the Court must strike down the Pork Barrel System as unconstitutional in view of the inherent defects in the rules within which it operates. To recount, insofar as it has allowed legislators to wield, in varying gradations, non-oversight, post-enactment authority in vital areas of budget execution, the system has violated the principle of separation of powers; insofar as it has conferred unto legislators the power of appropriation by giving them personal, discretionary funds from which they are able to fund specific projects which they themselves determine, it has similarly violated the principle of non-delegability of legislative power ; insofar as it has created a system of budgeting wherein items are not textualized into the appropriations bill, it has flouted the prescribed procedure of presentment and, in the process, denied the President the power to veto items ; insofar as it has diluted the effectiveness of congressional oversight by giving legislators a stake in the affairs of budget execution, an aspect of governance which they may be called to monitor and scrutinize, the system has equally impaired public accountability ; insofar as it has authorized legislators, who are national officers, to intervene in affairs of purely local nature, despite the existence of capable local institutions, it has likewise subverted genuine local autonomy ; and again, insofar as it has conferred to the President the power to appropriate funds intended by law for energy-related purposes only to other purposes he may deem fit as well as other public funds under the broad classification of "priority infrastructure development projects," it has once more transgressed the principle of non-delegability.
For as long as this nation adheres to the rule of law, any of the multifarious unconstitutional methods and mechanisms the Court has herein pointed out should never again be adopted in any system of governance, by any name or form, by any semblance or similarity, by any influence or effect. Disconcerting as it is to think that a system so constitutionally unsound has monumentally endured, the Court urges the people and its co-stewards in government to look forward with the optimism of change and the awareness of the past. At a time of great civic unrest and vociferous public debate, the Court fervently hopes that its Decision today, while it may not purge all the wrongs of society nor bring back what has been lost, guides this nation to
the path forged by the Constitution so that no one may heretofore detract from its cause nor stray from its course. After all, this is the Court‘s bounden duty and no other‘s.
WHEREFORE, the petitions are PARTLY GRANTED. In view of the constitutional violations discussed in this Decision, the Court hereby declares as UNCONSTITUTIONAL: (a) the entire 2013 PDAF Article; (b) all legal provisions of past and present Congressional Pork Barrel Laws, such as the previous PDAF and CDF Articles and the various Congressional Insertions, which authorize/d legislators – whether individually or collectively organized into committees – to intervene, assume or participate in any of the various post-enactment stages of the budget execution, such as but not limited to the areas of project identification, modification and revision of project identification, fund release and/or fund realignment, unrelated to the power of congressional oversight; (c) all legal provisions of past and present Congressional Pork Barrel Laws, such as the previous PDAF and CDF Articles and the various Congressional Insertions, which confer/red personal, lump-sum allocations to legislators from which they are able to fund specific projects which they themselves determine; (d) all informal practices of similar import and effect, which the Court similarly deems to be acts of grave abuse of discretion amounting to lack or excess of jurisdiction; and (e) the phrases (1) "and for such other purposes as may be hereafter directed by the President" under Section 8 of Presidential Decree No. 910 and (2) "to finance the priority infrastructure development projects" under Section 12 of Presidential Decree No. 1869, as amended by Presidential Decree No. 1993, for both failing the sufficient standard test in violation of the principle of non-delegability of legislative power.
Accordingly, the Court‘s temporary injunction dated September 10, 2013 is hereby declared to be PERMANENT. Thus, the disbursement/release of the remaining PDAF funds allocated for the year 2013, as well as for all previous years, and the funds sourced from (1) the Malampaya Funds under the phrase "and for such other purposes as may be hereafter directed by the President" pursuant to Section 8 of Presidential Decree No. 910, and (2) the Presidential Social Fund under the phrase "to finance the priority infrastructure development projects" pursuant to Section 12 of Presidential Decree No. 1869, as amended by Presidential Decree No. 1993, which are, at the time this Decision is promulgated, not covered by Notice of Cash Allocations (NCAs) but only by Special Allotment Release Orders (SAROs), whether obligated or not, are hereby ENJOINED. The remaining PDAF funds covered by this permanent injunction shall not be disbursed/released but instead reverted to the unappropriated surplus of the general fund, while the funds under the Malampaya Funds and the Presidential Social Fund shall remain therein to be utilized for their respective special purposes not otherwise declared as unconstitutional.
On the other hand, due to improper recourse and lack of proper substantiation, the Court hereby DENIES petitioners‘ prayer seeking that the Executive Secretary and/or the Department of Budget and Management be ordered to provide the public and the Commission on Audit complete lists/schedules or detailed reports related to the availments and utilization of the funds subject of these cases. Petitioners‘ access to official documents already available and of public record which are related to these funds must, however, not be prohibited but merely subjected to the custodian‘s reasonable regulations or any valid statutory prohibition on the same. This denial is without prejudice to a proper mandamus case which they or the Commission on Audit may choose to pursue through a separate petition.
The Court also DENIES petitioners prayer to order the inclusion of the funds subject of these cases in the budgetary deliberations of Congress as the same is a matter left to the prerogative of the political branches of government.
Finally, the Court hereby DIRECTS all prosecutorial organs of the government to, within the bounds of reasonable dispatch, investigate and accordingly prosecute all government officials and/or private individuals for possible criminal offenses related to the irregular, improper and/or unlawful disbursement/utilization of all funds under the Pork Barrel System.
This Decision is immediately executory but prospective in effect.
SO ORDERED.
ESTELA M. PERLAS-BERNABEAssociate Justice
WE CONCUR:
See Concurring OpinionMARIA LOURDES P. A. SERENO
Chief Justice
See Concurring OpinionANTONIO T. CARPIO
Associate Justice
NO PARTPRESBITERO J. VELASCO, JR.
Associate Justice
I concur and also join the concurring opinion of Justice Carpio.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
I join the Opinion of Justice Carpio, subject to my Concurring & Dissenting
Opinion.ARTURO D. BRION
Associate Justice
DIOSDADO M. PERALTAAssociate Justice
LUCAS P. BERSAMINAssociate Justice
MARIANO C. DEL CASTILLOAssociate Justice
I join the concurring opinion of J. A.T. Carpio of the ponenciaROBERTO A. ABAD
Associate Justice
MARTIN S. VILLARAMA, JR.Associate Justice
JOSE PORTUGAL PEREZAssociate Justice
JOSE CATRAL MENDOZAAssociate Justice
BIENVENIDO L. REYESAssociate Justice
See Concurring OpinionMARVIC MARIO VICTOR F. LEONEN
Associate Justice
C E R T I F I C A T I O N
I certify that the conclusions in the above Decision had been reached in consultation before the cases were assigned to the writer of the opinion of the Court.
MARIA LOURDES P. A. SERENOChief Justice
Footnotes
3 "’Pork barrel spending,‘ a term that traces its origins back to the era of slavery before the U.S. Civil War, when slave owners occasionally would present a barrel of salt pork as a gift to their slaves. In the modern usage, the term refers to congressmen scrambling to set aside money for pet projects in their districts." (Drudge, Michael W. "’Pork Barrel‘ Spending Emerging as Presidential Campaign Issue," August 1, 2008 http://iipdigital.usembassy.gov/st/english/article/2008/08/20080801181504lcnirellep 0.1261713.html#axzz2iQrI8mHM> [visited October 17, 2013].)
9 Jison, John Raymond, "What does the 'pork barrel' scam suggest about the Philippine government?" International Association for Political Science Students, September 10, 2013. <http://www.iapss.org/ index.php/articles/item/93-what-does-the-pork-barrel-scam-suggest-about-the-philippine-government> (visited October 17, 2013). See also Llanes, Jonathan, "Pork barrel – Knowing the issue," Sunstar Baguio, October 23, 2013. <http://www.sunstar.com.ph/ baguio/opinion/2013/09/05/llanes-pork- barrel-knowing-issue-301598> (visited October 17, 2013).
11 "Act 3044, the first pork barrel appropriation, essentially divided public works projects into two types. The first type—national and other buildings, roads and bridges in provinces, and lighthouses, buoys and beacons, and necessary mechanical equipment of lighthouses—fell directly under the jurisdiction of the director of public works, for which his office received appropriations. The second group—police barracks, normal school and other public buildings, and certain types of roads and bridges, artesian wells, wharves, piers and other shore protection works, and cable, telegraph, and telephone lines—is the forerunner of the infamous pork barrel. Although the projects falling under the second type were to be distributed at the discretion of the secretary of commerce and communications, he needed prior approval from a joint committee elected by the Senate and House of Representatives. The nod of either the joint committee or a committee member it had authorized was also required before the commerce and communications secretary could transfer unspent portions of one item to another item." (Emphases supplied) (Chua, Yvonne T. and Cruz, Booma, B., "Pork by any name," VERA Files, August 23, 2013. <http://verafiles.org/pork-by-any-name/> [visited October 14, 2013]).
12 Sec. 3. The sums appropriated in paragraphs (c), (g), (l), and (s) of this Act shall be available for immediate expenditure by the Director of Public Works, but those appropriated in the other paragraphs shall be distributed in the discretion of the Secretary of Commerce and Communications, subject to the approval of a joint committee elected by the Senate and the House of Representatives. The committee from each House may authorize one of its members to approve the distribution made by
the Secretary of Commerce and Communications, who 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. (Emphases supplied)
25 Special Provision 1, Article XLIV, RA 7078 (1991 CDF Article), and Special Provision 1, Article XLII (1992), RA 7180 (1992 CDF Article) are similarly worded as follows: Special Provision 1.
Use and Release of Funds. The amount herein appropriated shall be used for infrastructure and other priority projects and activities upon approval by the President of the Philippines and shall be released directly to the appropriate implementing agency [(x x x for 1991)], subject to the submission of the required list of projects and activities. (Emphases supplied)
28 Special Provision 1, Article XXXVIII, RA 7645 (1993 CDF Article) provides:
Special Provision
1. Use and Release of Funds.
The amount herein appropriated shall be used for infrastructure and other priority projects and activities as proposed and identified by officials concerned according to the following allocations: Representatives, P12,500,000 each; Senators P18,000,000 each; Vice-President, P20,000,000. The fund shall be automatically released quarterly by way of Advice of Allotment and Notice of Cash Allocation directly to the assigned implementing agency not later than five (5) days after the beginning of each quarter upon submission of the list of projects and activities by the officials concerned. (Emphases supplied)
30 Special Provision 1, Article XLI, RA 7663 (1994 CDF Article) provides:
Special Provisions
1. Use and Release of Funds.
The amount herein appropriated shall be used for infrastructure, purchase of ambulances and computers and other priority projects and activities, and credit facilities to qualified beneficiaries as proposed and identified by officials concerned according to the following allocations: Representatives, P12,500,000 each; Senators P18,000,000 each; Vice-President, P20,000,000; PROVIDED, That, the said credit facilities shall be constituted as a revolving fund to be administered by a government financial institution (GFI) as a trust fund for lending operations. Prior years releases to local government units and national government agencies for this purpose shall be turned over to the government financial institution which shall be the sole administrator of credit facilities released from this fund.
The fund shall be automatically released quarterly by way of Advice of Allotments and Notice of Cash Allocation directly to the assigned implementing agency not
later than five (5) days after the beginning of each quarter upon submission of the list of projects and activities by the officials concerned. (Emphases supplied)
31 Special Provision 1, Article XLII, RA 7845 (1995 CDF Article) provides:
Special Provisions
1. Use and Release of Funds.
The amount herein appropriated shall be used for infrastructure, purchase of equipment and other priority projects and activities as proposed and identified by officials concerned according to the following allocations: Representatives, P12,500,000 each; Senators P18,000,000 each; Vice-President, P20,000,000.
The fund shall be automatically released semi-annually by way of Advice of Allotment and Notice of Cash Allocation directly to the designated implementing agency not later than five (5) days after the beginning of each semester upon submission of the list of projects and activities by the officials concerned. (Emphases supplied)
32 Special Provision 1, Article XLII, RA 8174 (1996 CDF Article) provides:
Special Provisions
1. Use and Release of Fund.
The amount herein appropriated shall be used for infrastructure, purchase of equipment and other priority projects and activities, including current operating expenditures, except creation of new plantilla positions, as proposed and identified by officials concerned according to the following allocations: Representatives, Twelve Million Five Hundred Thousand Pesos (P12,500,000) each; Senators, Eighteen Million Pesos (P18,000,000) each; Vice-President, Twenty Million Pesos (P20,000,000).
The Fund shall be released semi-annually by way of Special Allotment Release Order and Notice of Cash Allocation directly to the designated implementing agency not later than thirty (30) days after the beginning of each semester upon submission of the list of projects and activities by the officials concerned. (Emphases supplied)
33 Special Provision 2 of the 1994 CDF Article, Special Provision 2 of the 1995 CDF Article and Special Provision 2 of the 1996 CDF Article are similarly worded as follows:
2. Submission of [Quarterly (1994)/Semi-Annual (1995 and 1996)] Reports. The Department of Budget and Management shall submit within thirty (30) days after the end of each [quarter (1994)/semester (1995 and 1996)] a report to the House Committee on Appropriations and the Senate Committee on Finance on the releases made from this Fund. The report shall include the listing of the projects,
locations, implementing agencies [stated (order of committees interchanged in 1994 and 1996)] and the endorsing officials. (Emphases supplied)
34 Special Provision 2, Article XLII, RA 8250 (1997 CDF Article) provides:
Special Provisions
x x x x
2. Publication of Countrywide Development Fund Projects. Within thirty (30) days after the signing of this Act into law, the Members of Congress and the Vice-President shall, in consultation with the implementing agency concerned, submit to the Department of Budget and Management the list of fifty percent (50%) of projects to be funded from the allocation from the Countrywide Development Fund which shall be duly endorsed by the Senate President and the Chairman of the Committee on Finance in the case of the Senate and the Speaker of the House of Representatives and the Chairman of the Committee on Appropriations in the case of the House of Representatives, and the remaining fifty percent (50%) within six (6) months thereafter. The list shall identify the specific projects, location, implementing agencies, and target beneficiaries and shall be the basis for the release of funds. The said list shall be published in a newspaper of general circulation by the Department of Budget and Management. No funds appropriated herein shall be disbursed for projects not included in the list herein required. (Emphases supplied)
36 Special Provision 2, Article XLII, RA 8522 (1998 CDF Article) provides:
Special Provisions
x x x x
2. Publication of Countrywide Development Fund Projects. x x x PROVIDED, That said publication is not a requirement for the release of funds. x x x x (Emphases supplied)
42 RA 8745 entitled "AN ACT APPROPRIATING FUNDS FOR THE OPERATION OF THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES FROM JANUARY ONE TO DECEMBER THIRTY ONE, NINETEEN HUNDRED NINETY NINE, AND FOR OTHER PURPOSES."
43 Special Provision 1, Article XLII, Food Security Program Fund, RA 8745 provides:
Special Provision
1. Use and Release of Fund. The amount herein authorized shall be used to support the Food Security Program of the government, which shall include farm-to-market roads, post harvest facilities and other agricultural related infrastructures. Releases from this fund shall be made directly to the
implementing agency subject to prior consultation with the Members of Congress concerned. (Emphases supplied)
44 Special Provision 1, Article XLIX,
Lingap Para sa Mahihirap
Program Fund, RA 8745 provides:
Special Provision
1. Use and Release of Fund. The amount herein appropriated for the Lingap Para sa Mahihirap Program Fund shall be used exclusively to satisfy the minimum basic needs of poor communities and disadvantaged sectors: PROVIDED, That such amount shall be released directly to the implementing agency upon prior consultation with the Members of Congress concerned. (Emphases supplied)
45 Special Provision 1, Article L, Rural/Urban Development Infrastructure Program Fund, RA 8745 provides:
Special Provision
1. Use and Release of Fund. The amount herein authorized shall be used to fund infrastructure requirements of the rural/urban areas which shall be released directly to the implementing agency upon prior consultation with the respective Members of Congress. (Emphases supplied)
46 Special Provision 1, Article XLIX, RA 8760 (2000 PDAF Article) provides:
Special Provision
1. Use and release of the Fund. The amount herein appropriated shall be used to fund priority programs and projects as indicated under Purpose 1: PROVIDED, That such amount shall be released directly to the implementing agency concerned upon prior consultation with the respective Representative of the District: PROVIDED, FURTHER, That the herein allocation may be realigned as necessary to any expense category: PROVIDED, FINALLY, That no amount shall be used to fund personal services and other personal benefits. (Emphases supplied)
48 Section 25 (7), Article VI, of the 1987 Philippine Constitution (1987 Constitution) provides that
"if, by the end of any fiscal year, the Congress shall have failed to pass the general appropriations bill for the ensuing fiscal year, the general appropriations law for the preceding fiscal year shall be deemed reenacted and shall remain in force and effect until the general appropriations bill is passed by the Congress." (Emphasis supplied)
49 Special Provision 1, Article L, RA 9162 (2002 PDAF Article) provides:
1. Use and Release of the Fund. The amount herein appropriated shall be used to fund priority programs and projects or to fund counterpart for foreign-assisted programs and projects:
PROVIDED, That such amount shall be released directly to the implementing agency or Local Government Unit concerned. (Emphases supplied)
50 Special Provision 1, Article XLVII, RA 9206, 2003 GAA (2003 PDAF Article) provides:
Special Provision
1. Use and Release of the Fund. The amount herein appropriated shall be used to fund priority programs and projects or to fund the required counterpart for foreign-assisted programs and projects: PROVIDED, That such amount shall be released directly to the implementing agency or Local Government Unit concerned: PROVIDED, FURTHER, That the allocations authorized herein may be realigned to any expense class, if deemed necessary: PROVIDED, FURTHERMORE, That a maximum of ten percent (10%) of the authorized allocations by district may be used for the procurement of rice and other basic commodities which shall be purchased from the National Food Authority.
51 Special Provision 1, Article XVIII, RA 9206 provides:
Special Provision No. 1 – Restriction on the Delegation of Project Implementation The implementation of the projects funded herein shall not be delegated to other agencies, except those projects to be implemented by the Engineering Brigades of the AFP and inter-department projects undertaken by other offices and agencies including local government units with demonstrated capability to actually implement the projects by themselves upon consultation with the Members of Congress concerned. In all cases the DPWH shall exercise technical supervision over projects. (Emphasis supplied)
52 Special Provision 3, Article XLII, RA 9206 provides:
Special Provision No. 3 – Submission of the List of School Buildings Within 30 days after the signing of this Act into law, (DepEd) after consultation with the representative of the legislative district concerned, shall submit to DBM the list of 50% of school buildings to be constructed every municipality x x x. The list as submitted shall be the basis for the release of funds. (Emphasis supplied)
54 Special Provision 1, Article L, RA 9336 (2005 PDAF Article) provides:
Special Provision(s)
1. Use and Release of the Fund. The amount appropriated herein 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 as indicated hereunder, to wit:
PARTICULARS PROGRAM/PROJECT IMPLEMENTINGAGENCY
A. Education Purchase of IT Equipment DepEd/TESDA/ CHED/SUCs/LGUs
Scholarship TESDA/CHED/SUCs/LGUs
B. Health Assistance to Indigent Patients Confined at the Hospitals Under DOH Including Specialty Hospitals
DOH/SpecialtyHospitals
Assistance to Indigent Patients at the Hospitals Devolved to LGUs and RHUs
LGUs
Insurance Premium Philhealth
C. Livelihood/ CIDSS
Small & Medium Enterprise/Livelihood DTI/TLRC/DA/CDA
Comprehensive Integrated Delivery of Social Services
DSWD
D. Rural Electrification
Barangay/Rural Electrification DOE/NEA
E. Water Supply Construction of Water System DPWH
Installation of Pipes/Pumps/Tanks LGUs
F. Financial Assistance
Specific Programs and Projects to Address the Pro-Poor Programs of Government
LGUs
G. Public Work Construction/Repair/ Rehabilitation of the following: Roads and Bridges/Flood Control/School buildings Hospitals Health Facilities/Public Markets/Multi-Purpose Buildings/Multi-Purpose Pavements
DPWH
H. Irrigation Construction/Repair/ Rehabilitation of Irrigation Facilities
DA-NIA
(Emphasis supplied)
61 For instance, Special Provisions 2 and 3, Article XLIII, RA 9336 providing for the 2005 DepEd School Building Program, and Special Provisions 1 and 16, Article XVIII, RA 9401 providing for the 2007 DPWH Regular Budget respectively state: 2005 DepEd School Building Program Special Provision No. 2 – Allocation of School Buildings: The amount allotted under Purpose 1 shall be apportioned as follows: (1) fifty percent (50%) to be allocated pro-rata according to each legislative districts student population x x x;
(2) forty percent (40%) to be allocated only among those legislative districts with classroom shortages x x x; (3) ten percent (10%) to be allocated in accordance x x x.
Special Provision No. 3 – Submission of the List of School Buildings: Within 30 days after the signing of this Act into law, the DepEd after consultation with the representative of the legislative districts concerned, shall submit to DBM the list of fifty percent (50%) of school buildings to be constructed in every municipality x x x. The list as submitted shall be the basis for the release of funds x x x. (Emphases supplied)
2007 DPWH Regular Budget
Special Provision No. 1 – Restriction on Delegation of Project Implementation: The implementation of the project funded herein shall not be delegated to other agencies, except those projects to be implemented by the AFP Corps of Engineers, and inter-department projects to be undertaken by other offices and agencies, including local government units (LGUs) with demonstrated capability to actually implement the project by themselves upon consultation with the representative of the legislative district concerned x x x.
Special Provision No. 16 – Realignment of Funds: The Secretary of Public Works and Highways is authorized to realign funds released from appropriations x x x from one project/scope of work to another: PROVIDED, that x x x (iii) the request is with the concurrence of the legislator concerned
x x x. (Emphasis supplied)
64 "As a primary aspect of the Philippine Government's public procurement reform agenda, the Government Procurement Policy Board (GPPB) was established by virtue of Republic Act No. 9184 (R.A. 9184) as an independent inter-agency body that is impartial, transparent and effective, with private sector representation. As established in Section 63 of R.A. 9184, the GPPB shall have the following duties and responsibilities: 1. To protect national interest in all matters affecting public procurement, having due regard to the country's regional and international obligations; 2. To formulate and amend public procurement policies, rules and regulations, and amend, whenever necessary, the implementing rules and regulations Part A (IRR-A); 3. To prepare a generic procurement manual and standard bidding forms for procurement; 4. To ensure the proper implementation by the procuring entities of the Act, its IRR-A and all other relevant rules and regulations pertaining to public procurement; 5. To establish a sustainable training program to develop the capacity of Government procurement officers and employees, and to ensure the conduct of regular procurement training programs by the procuring entities; and 6. To conduct an annual review of the effectiveness of the Act and recommend any amendments thereto, as may be necessary.
x x x x" <http://www.gppb.gov.ph/about_us/gppb.html> (visited October 23, 2013).
67 Sec. 48. Alternative Methods. - Subject to the prior approval of the Head of the Procuring Entity or his duly authorized representative, and whenever justified by the conditions provided in this Act, the Procuring Entity may, in order to promote economy and efficiency, resort to any of the following alternative methods of Procurement:
x x x x
(e) Negotiated Procurement - a method of Procurement that may be resorted under the extraordinary circumstances provided for in Section 53 of this Act and other instances that shall be specified in the IRR, whereby the Procuring Entity directly negotiates a contract with a technically, legally and financially capable supplier, contractor or consultant.
x x x x
68 As defined in Section 5(o) of RA 9184, the term "Procuring Entity" refers to any branch, department, office, agency, or instrumentality of the government, including state universities and colleges, government-owned and/or - controlled corporations, government financial institutions, and local government units procuring Goods, Consulting Services and Infrastructure Projects.
70 Special Provision 2, Article XLIV, RA 10147 (2011 PDAF Article) provides:
2. Allocation of Funds. The total projects to be identified by legislators and the Vice-President shall not exceed the following amounts:
a. Total of Seventy Million Pesos (P70,000,000) broken down into Forty Million Pesos (P40,000,000) for Infrastructure Projects and Thirty Million Pesos (P30,000,000) for soft projects of Congressional Districts or Party List Representatives;
b. Total of Two Hundred Million Pesos (P200,000,000) broken down into One Hundred Million Pesos (P100,000,000) for Infrastructure Projects and One Hundred Million Pesos (P100,000,000) for soft projects of Senators and the Vice President.
72 Special Provision 2, Article XLIV, RA 10155 (2012 PDAF Article) provides: 2. Project Identification. Identification of projects and/or designation of beneficiaries shall conform to the priority list, standard or design prepared by each implementing agency. Furthermore, preference shall be given to projects located in the 4th to 6th class municipalities or indigents identified under the National Household Targeting System for Poverty Reduction by the DSWD.
For this purpose, the implementing agency shall submit to Congress said priority list, standard or design within ninety (90) days from effectivity of this Act. (Emphasis supplied)
73 RA 10352, passed and approved by Congress on December 19, 2012 and signed into law by the President on December 19, 2012. Special Provision 2, Article XLIV, RA 10352 (2013 PDAF Article) provides:
2. Project Identification. Identification of projects and/or designation of beneficiaries shall conform to the priority list, standard or design prepared by each implementing agency: PROVIDED, That preference shall be given to projects located in the 4th to 6th class municipalities or indigents identified under
the NHTS-PR by the DSWD. For this purpose, the implementing agency shall submit to Congress said priority list, standard or design within ninety (90) days from effectivity of this Act. (Emphasis supplied)
74 The permissive treatment of the priority list requirement in practice was revealed during the Oral Arguments (TSN, October 10, 2013, p. 143):
Justice Leonen: x x x In Section 2 meaning, Special Provision 2, it mentions priority list of implementing agencies. Have the implementing agencies indeed presented priority list to the Members of Congress before disbursement?
Solicitor General Jardeleza: My understanding is, is not really, Your Honor. Justice Leonen: So, in other words, the PDAF was expended without the priority list requirements of the implementing agencies?
Solicitor General Jardeleza: That is so much in the CoA Report, Your Honor.
76 Special Provision 6 of the 2012 PDAF Article provides:
6. Realignment of Funds. Realignment under this Fund may only be allowed once. The Secretaries of Agriculture, Education, Energy, Environment and Natural Resources, Health, Interior and Local Government, Public Works and Highways, and Social Welfare and Development are also authorized to approve realignment from one project/scope to another within the allotment received from this Fund, subject to the following: (i) for infrastructure projects, realignment is within the same implementing unit and same project category as the original project; (ii) allotment released has not yet been obligated for the original project/scope of work; and (iii) request is with the concurrence of the legislator concerned. The DBM must be informed in writing of any realignment approved within five (5) calendar days from its approval.
Special Provision 4 of the 2013 PDAF Article provides:
4. Realignment of Funds. Realignment under this Fund may only be allowed once. 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 are also authorized to approve realignment from one project/scope to another within the allotment received from this Fund, subject to the following: (i) for infrastructure projects, realignment is within the same implementing unit and same project category as the original project; (ii) allotment released has not yet been obligated for the original project/scope of work; and (iii) request is with the concurrence of the legislator concerned. The DBM must be informed in writing of any realignment approved within five (5) calendar days from approval thereof: PROVIDED, That any realignment under this Fund shall be limited within the same classification of soft or hard programs/projects listed under Special Provision 1 hereof: PROVIDED, FURTHER, That in case of realignments, modifications and revisions of projects to be implemented by LGUs, the LGU concerned shall certify that the cash has not yet been disbursed and the funds have been deposited back to the BTr.
Any realignment, 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. (Emphases supplied)
77 Special Provision 1 of the 2013 PDAF Article provides:
Special Provision(s) 1. Use of Fund. The amount appropriated herein shall be used to fund the following priority programs and projects to be implemented by the corresponding agencies:
x x x x
PROVIDED, That this Fund shall not be used for the payment of Personal Services expenditures: PROVIDED, FURTHER, That all procurement shall comply with the provisions of R.A. No. 9184 and its Revised Implementing Rules and Regulations: PROVIDED, FINALLY, That for infrastructure projects, LGUs may only be identified as implementing agencies if they have the technical capability to implement the same. (Emphasis supplied)
78 Special Provision 2 of the 2013 PDAF Article provides:
2. Project Identification. x x x.
x x x x
All programs/projects, except for assistance to indigent patients and scholarships, identified by a member of the House of Representatives outside of his/her legislative district shall have the written concurrence of the member of the House of Representatives of the recipient or beneficiary legislative district, endorsed by the Speaker of the House of Representatives.
80 Sec. 8.
Appropriations. The sum of Five Million Pesos out of any available funds from the National Treasury is hereby appropriated and authorized to be released for the organization of the Board and its initial operations. Henceforth, funds sufficient to fully carry out the functions and objectives of the Board shall be appropriated every fiscal year in the General Appropriations Act.
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. (Emphasis supplied)
81 Entitled "CREATING AN ENERGY DEVELOPMENT BOARD, DEFINING ITS POWERS AND FUNCTIONS, PROVIDING FUNDS, THEREFOR, AND FOR OTHER PURPOSES."
84 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 shall be immediately set aside and allocated to fund the following infrastructure and socio-civil projects within the Metropolitan Manila Area:
(a) Flood Control
(b) Sewerage and Sewage
(c) Nutritional Control
(d) Population Control
(e) Tulungan ng Bayan Centers
(f) Beautification
(g) Kilusang Kabuhayan at Kaunlaran (KKK) projects; provided, that should the aggregate gross earning be less than P150,000,000.00, the amount to be allocated to fund the above-mentioned project shall be equivalent to sixty (60%) percent of the aggregate gross earning.
In addition to the priority infrastructure and socio-civic projects with the Metropolitan Manila specifically enumerated above, the share of the Government in the aggregate gross earnings derived by the Corporate from this Franchise may also be appropriated and allocated to fund and finance infrastructure and/or socio-civic projects throughout the Philippines as may be directed and authorized by the Office of the President of the Philippines.
87 Section 12 of PD 1869, as amended by PD 1993, now 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 immediately 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.
89 CDF/PDAF ALLOCATION FROM 1990 -2013.
1990…………… P2,300,000,000.00
1991…………… P 2,300,000,000.00
1992…………… P 2,480,000,000.00
1993…………… P 2,952,000,000.00
1994…………… P 2,977,000,000.00
1995…………… P 3,002,000,000.00
1996…………… P 3,014,500,000.00
1997…………… P 2,583,450,000.00
1998…………… P 2,324,250,000.00
1999…………… P 1,517,800,000.00 (Food Security Program Fund)
…………… P 2,500,000,000.00 (Lingap Para Sa Mahihirap Program Fund)
…………… P 5,458,277,000.00 (Rural/Urban Development Infrastructure Program Fund)
2000…………… P 3,330,000,000.00
2001…………… 2000 GAA re-enacted
2002…………… P 5,677,500,000.00
2003…………… P 8,327,000,000.00
2004…………… 2003 GAA re-enacted
2005…………… P 6,100,000,000.00
2006…………… 2005 GAA re-enacted
2007…………… P 11,445,645,000.00
2008…………… P 7,892,500,000.00
2009…………… P 9,665,027,000.00
2010…………… P 10,861,211,000.00
2011…………… P 24,620,000,000.00
2012…………… P 24,890,000,000.00
2013…………… P 24,790,000,000.00
90 "Pork as a tool for political patronage, however, can extend as far as the executive branch. It is no accident, for instance, that the release of the allocations often coincides with the passage of a Palace-sponsored bill.
That pork funds have grown by leaps and bounds in the last decade can be traced to presidents in need of Congress support. The rise in pork was particularly notable during the Ramos administration, when the president and House Speaker Jose de Venecia, Jr. used generous fund releases to convince congressmen to support Malacañang-initiated legislation. The Ramos era, in fact, became known as the ‘golden age of pork.‘
Through the years, though, congressmen have also taken care to look after their very own. More often than not, pork-barrel funds are funneled to projects in towns and cities where the lawmakers' own relatives have been elected to public office; thus, pork is a tool for building family power as well. COA has come across many instances where pork-funded projects ended up directly benefiting no less than the lawmaker or his or her relatives."(CHUA, YVONNE T. and CRUZ, BOOMA, "Pork is a Political, Not A Developmental, Tool." <http://pcij.org/stories/2004/pork.html> [visited October 22, 2013].)
91 With reports from Inquirer Research and Salaverria, Leila, "Candazo, first whistle-blower on pork barrel scam, dies; 61," Philippine Daily Inquirer, August 20, 2013, <http://newsinfo. inquirer.net/469439/candazo-first-whistle-blower-on-pork-barrel-scam-dies-61> (visited October 21, 2013.)
98 See NBI Executive Summary. <http://www.gov.ph/2013/09/16/executive-summary-by-the-nbi-on-the- pdaf-complaints-filed-against-janet-lim-napoles-et-al/> (visited October 22, 2013).
99 Pursuant to Office Order No. 2010-309 dated May 13, 2010.
100 During the Oral Arguments, the CoA Chairperson referred to the VILP as "the source of the so called HARD project, hard portion x x x "under the title the Budget of the DPWH." TSN, October 8, 2013, p. 69.
101 These implementing agencies included the Department of Agriculture, DPWH and the Department of Social Welfare and Development (DSWD). The GOCCs included Technology and Livelihood Resource Center (TLRC)/Technology Resource Center (TRC), National Livelihood Development Corporation (NLDC), National Agribusiness Corporation (NABCOR), and the Zamboanga del Norte Agricultural College (ZNAC) Rubber Estate Corporation (ZREC). CoA Chairperson‘s Memorandum. Rollo (G.R. No. 208566), p. 546. See also CoA Report, p. 14.
104 Carvajal, Nancy, ―Malampaya fund lost P900M in JLN racket‖, Philippine Daily Inquirer, July 16, 2013 <http://newsinfo.inquirer.net/445585/malampaya-fund-lost-p900m-in-jln-racket> (visited October 21, 2013.)
107 The Court observes that petitioners have not presented sufficient averments on the remittances from the Philippine Charity Sweepstakes Office‖ nor have defined the scope of "the Executive‘s Lump Sum Discretionary Funds" (See rollo [G.R. No. 208566], pp. 47-49) which appears to be too broad and all-encompassing. Also, while Villegas filed a Supplemental Petition dated October 1, 2013 (Supplemental Petition, see rollo [G.R. No. 208566], pp. 213-220, and pp. 462-464) particularly presenting their arguments on the Disbursement Acceleration Program, the same is the main subject of G.R. Nos. 209135, 209136, 209155, 209164, 209260, 209287, 209442, 209517, and 209569 and thus, must be properly resolved therein. Hence, for these reasons, insofar as the Presidential Pork Barrel is concerned, the Court is constrained not to delve on any issue related to the above-mentioned funds and consequently confine its discussion only with respect to the issues pertaining to the Malampaya Funds and the Presidential Social Fund.
128 Sec. 38. Suspension of Expenditure of Appropriations. – Except as otherwise provided in the General Appropriations Act and whenever in his judgment the public interest so requires, the President, upon notice to the head of office concerned, is authorized to suspend or otherwise stop further expenditure of funds allotted for any agency, or any other expenditure authorized in the General Appropriations Act, except for personal services appropriations used for permanent officials and employees.
133 Section 22, Article VII of the 1987 Constitution provides:
Sec. 22. The President shall submit to the Congress within thirty days from the opening of every regular session, as the basis of the general appropriations bill, a budget of expenditures and sources of financing, including receipts from existing and proposed revenue measures.
186 See PDAF Article for the year 2000 which was re-enacted in 2001. See also the following 1999 CIAs: "Food Security Program Fund," the " Lingap Para Sa Mahihirap Program Fund," and the "Rural/Urban Development Infrastructure Program Fund." See further the 1997 DepEd School Building Fund.
187 See PDAF Article for the years 2005, 2006, 2007, 2008, 2009, 2010, 2011, and 2013.
188 Also, in Section 2.1 of DBM Circular No. 547 dated January 18, 2013 (DBM Circular 547-13), or the "Guidelines on the Release of Funds Chargeable Against the Priority Development Assistance Fund for FY 2013," it is explicitly stated that the "PDAF shall be used to fund priority programs and projects identified by the Legislators from the Project Menu." (Emphasis supplied)
189 To note, Special Provision 4 cannot – as respondents submit – refer to realignment of projects since the same provision subjects the realignment to the condition that the "allotment released has not yet been obligated for the original project/scope of work". The foregoing proviso should be read as a textual reference to the savings requirement stated under Section 25(5), Article VI of the 1987 Constitution which pertinently provides that "x x x the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations. In addition, Sections 4.2.3, 4.2.4 and 4.3.3 of DBM Circular
547-13, the implementing rules of the 2013 PDAF Article, respectively require that: (a) "the allotment is still valid or has not yet lapsed"; (b) "requests for realignment of unobligated allotment as of December 31, 2012 treated as continuing appropriations in FY 2013 shall be submitted to the DBM not later than June 30, 2013"; and (c) requests for realignment shall be supported with, among others, a "certification of availability of funds." As the letter of the law and the guidelines related thereto evoke the legal concept of savings, Special Provision 4 must be construed to be a provision on realignment of PDAF funds, which would necessarily but only incidentally include the projects for which the funds have been allotted to. To construe it otherwise would effectively allow PDAF funds to be realigned outside the ambit of the foregoing provision, thereby sanctioning a constitutional aberration.
190 Aside from the sharing of the executive‘s realignment authority with legislators in violation of the separation of powers principle, it must be pointed out that Special Provision 4, insofar as it confers fund realignment authority to department secretaries, is already unconstitutional by itself. As recently held in Nazareth v. Villar (Nazareth), G.R. No. 188635, January 29, 2013, 689 SCRA 385, 403-404, Section 25(5), Article VI of the 1987 Constitution, limiting the authority to augment, is "strictly but reasonably construed as exclusive" in favor of the high officials named therein. As such, the authority to realign funds allocated to the implementing agencies is exclusively vested in the President, viz.:
It bears emphasizing that the exception in favor of the high officials named in Section 25(5), Article VI of the Constitution limiting the authority to transfer savings only to augment another item in the GAA is strictly but reasonably construed as exclusive. As the Court has expounded in Lokin, Jr. v. Commission on Elections:
When the statute itself enumerates the exceptions to the application of the general rule, the exceptions are strictly but reasonably construed. The exceptions extend only as far as their language fairly warrants, and all doubts should be resolved in favor of the general provision rather than the exceptions. Where the general rule is established by a statute with exceptions, none but the enacting authority can curtail the former. Not even the courts may add to the latter by implication, and it is a rule that an express exception excludes all others, although it is always proper in determining the applicability of the rule to inquire whether, in a particular case, it accords with reason and justice.
The appropriate and natural office of the exception is to exempt something from the scope of the general words of a statute, which is otherwise within the scope and meaning of such general words. Consequently, the existence of an exception in a statute clarifies the intent that the statute shall apply to all cases not excepted. Exceptions are subject to the rule of strict construction; hence, any doubt will be resolved in favor of the general provision and against the exception. Indeed, the liberal construction of a statute will seem to require in many circumstances that the exception, by which the operation of the statute is limited or abridged, should receive a restricted construction. (Emphases and underscoring supplied)
The cogence of the Nazareth dictum is not enfeebled by an invocation of the doctrine of qualified political agency (otherwise known as the "alter ego doctrine")
for the bare reason that the same is not applicable when the Constitution itself requires the President himself to act on a particular matter, such as that instructed under Section 25(5), Article VI of the Constitution. As held in the landmark case of Villena v. Secretary of Interior (67 Phil. 451 [1987]), constitutional imprimatur is precisely one of the exceptions to the application of the alter ego doctrine, viz.:
After serious reflection, we have decided to sustain the contention of the government in this case on the board proposition, albeit not suggested, that under the presidential type of government which we have adopted and considering the departmental organization established and continued in force by paragraph 1, section 12, Article VII, of our Constitution, all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and except in cases where the Chief Executive is required by the Constitution or the law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive. (Emphases and underscoring supplied; citations omitted)
194 Aside from its conceptual origins related to the separation of powers principle, Corwin, in his commentary on Constitution of the United States made the following observations:
At least three distinct ideas have contributed to the development of the principle that legislative power cannot be delegated. One is the doctrine of separation of powers: Why go to the trouble of separating the three powers of government if they can straightway remerge on their own motion? The second is the concept of due process of law, which precludes the transfer of regulatory functions to private persons. Lastly, there is the maxim of agency "Delegata potestas non potest delegari," which John Locke borrowed and formulated as a dogma of political science . . . Chief Justice Taft offered the following explanation of the origin and limitations of this idea as a postulate of constitutional law: "The well-known maxim ‘delegata potestas non potest delefari,‘ applicable to the law of agency in the general common law, is well understood and has had wider application in the construction of our Federal and State Constitutions than it has in private law . . . The Federal and State Constitutions than it has in private law . . . The Federal Constitution and State Constitutions of this country divide the governmental power into three branches . . . In carrying out that constitutional division . . . it is a breach of the National fundamental law if Congress gives up its legislative power and transfers it to the President, or to the Judicial branch, or if by law it attempts to invest itself or its members with either executive power of judicial power. This is not to say that the three branches are not co-ordinate parts of one government and that each in the field of its duties may not invoke government and that each in the field of its duties may not invoke the action of the two other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. In determining what it may do in seeking assistance from another branch, the extent and character of that assistance must be fixed
according to common sense and the inherent necessities of the governmental coordination. (Emphases supplied)
207 "Log-rolling legislation refers to the process in which several provisions supported by an individual legislator or minority of legislators are combined into a single piece of legislation supported by a majority of legislators on a quid pro quo basis: no one provision may command majority support, but the total package will.” See Rollo (G.R. No. 208566), p. 420, citing Briffault, Richard, ―The Item Veto in State Courts,‖ 66 Temp. L. Rev. 1171, 1177 (1993).
218 "It cannot be denied that most government actions are inspired with noble intentions, all geared towards the betterment of the nation and its people. But then again, it is important to remember this ethical principle: ‘The end does not justify the means.‘ No matter how noble and worthy of admiration the purpose of an act, but if the means to be employed in accomplishing it is simply irreconcilable with constitutional parameters, then it cannot still be allowed. The Court cannot just turn a blind eye and simply let it pass. It will continue to uphold the Constitution and its enshrined principles. ‘The Constitution must ever remain supreme. All must bow to the mandate of this law. Expediency must not be allowed to sap its strength nor greed for power debase its rectitude.‘" (Biraogo v. Philippine Truth Commission of 2010, supra note 118, 177; citations omitted)
240 See Guingona, Jr. v. Carague, supra note 173, where the Court upheld the constitutionality of certain automatic appropriation laws for debt servicing although said laws did not readily indicate the exact amounts to be paid considering that "the amounts nevertheless are made certain by the legislative parameters provided in the decrees"; hence, "the Executive is not of unlimited discretion as to the amounts to be disbursed for debt servicing." To note, such laws vary in great degree with the way the 2013 PDAF Article works considering that: (a) individual legislators and not the executive make the determinations; (b) the choice of both the amount and the project are to be subsequently made after the law is passed and upon the sole discretion of the legislator, unlike in Guingona, Jr. where the amount to be appropriated is dictated by the contingency external to the discretion of the disbursing authority; and (c) in Guingona, Jr. there is no effective control of the funds since as long as the contingency arises money shall be automatically appropriated therefor, hence what is left is merely law execution and not legislative discretion.
245 The project identifications made by the Executive should always be in the nature of law enforcement and, hence, for the sole purpose of enforcing an existing appropriation law. In relation thereto, it may exercise its rule-making authority to greater particularize the guidelines for such identifications which, in all cases, should not go beyond what the delegating law provides. Also, in all cases, the Executive‘s identification or rule-making authority, insofar as the field of appropriations is concerned, may only arise if there is a valid appropriation law under the parameters as above-discussed.
251 Based on a July 5, 2011 posting in the government’s website <http://www.gov.ph/2011/07/05/budget-secretary-abad-clarifies-nature-of-malampaya-fund/>; attached as Annex "A" to the Petitioners‘ Memorandum), the Malampaya Funds were also used for non-energy related projects, to wit:
The rest of the 98.73 percent or P19.39 billion was released for non-energy related projects: 1) in 2006, P1 billion for the Armed Forces Modernization Fund; 2) in 2008, P4 billion for the Department of Agriculture; 3) in 2009, a total of P14.39 billion to various agencies, including: P7.07 billion for the Department of Public Works and Highways; P2.14 billion for the Philippine National Police; P1.82 billion for [the Department of Agriculture]; P1.4 billion for the National Housing Authority; and P900 million for the Department of Agrarian Reform.
252 For academic purposes, the Court expresses its disagreement with petitioners‘ argument that the previous version of Section 12 of PD 1869 constitutes an undue delegation of legislative power since it allows the President to broadly determine the purpose of the Presidential Social Fund‘s use and perforce must be declared unconstitutional. Quite the contrary, the 1st paragraph of the said provision clearly indicates that the Presidential Social Fund shall be used to finance specified types of priority infrastructure and socio-civic projects, namely, Flood Control, Sewerage and Sewage, Nutritional Control, Population Control, Tulungan ng Bayan Centers, Beautification and Kilusang Kabuhayan at Kaunlaran (KKK) projects located within the Metropolitan Manila area. However, with regard to the stated geographical-operational limitation, the 2nd paragraph of the same provision nevertheless allows the Presidential Social Fund to finance "priority infrastructure and socio-civic projects throughout the Philippines as may be directed and authorized by the Office of the President of the Philippines." It must, however, be qualified that the 2nd paragraph should not be construed to mean that the Office of the President may direct and authorize the use of the Presidential Social Fund to any kind of infrastructure and socio-civic project throughout the Philippines. Pursuant to the maxim of noscitur a sociis , (meaning, that a word or phrase‘s "correct construction may be made clear and specific by considering the company of words in which it is founded or with which it is associated"; see Chavez v. Judicial and Bar Council, G.R. No. 202242, July 17, 2012, 676 SCRA 579, 598-599) the 2nd paragraph should be construed only as an expansion of the geographical-operational limitation stated in the 1st paragraph of the same provision and not a grant of carte blanche authority to the President to veer away from the project types specified thereunder. In other words, what the 2nd paragraph merely allows is the use of the Presidential Social Fund for Flood Control, Sewerage and Sewage, Nutritional Control, Population Control, Tulungan ng Bayan Centers, Beautification and Kilusang Kabuhayan at Kaunlaran (KKK) projects even though the same would be located outside the Metropolitan Manila area. To deem it otherwise would be tantamount to unduly expanding the rule-making authority of the President in violation of the sufficient standard test and, ultimately, the principle of non-delegability of legislative power.
HISTORYIn the Philippines, the “pork barrel” (a term of American-English origin) has been commonly referred to as lump-sum, discretionary funds of Members of the Legislature (“Congressional Pork Barrel”). However, it has also come to refer to certain funds to the Executive. The “Congressional Pork Barrel” can be traced from Act 3044 (Public Works Act of 1922), the Support for Local Development Projects during the Marcos period, the Mindanao Development Fund and Visayas Development Fund and later the Countrywide Development Fund (CDF) under the Corazon Aquino presidency, and the Priority Development Assistance Fund (PDAF) under the Joseph Estrada administration, as continued by the Gloria-Macapagal Arroyo and the present Benigno Aquino III administrations.
SPECIAL PROVISIONS OF THE 2013 PDAF ARTICLE2. Project Identification. Identification of projects and/or designation of beneficiaries shall conform to the priority list, standard or design prepared by each implementing agency: PROVIDED, That preference shall be given to projects located in the 4th to 6th class municipalities or indigents identified under the MHTS-PR by the DSWD. For this purpose, the implementing agency shall submit to Congress said priority list, standard or design within ninety (90) days from effectivity of this Act.
All programs/projects, except for assistance to indigent patients and scholarships, identified by a member of the House of Representatives outside of his/her legislative district shall have the written concurrence of the member of the House of Representatives of the recipient or beneficiary legislative district, endorsed by the Speaker of the House of Representatives.
3. Legislator’s Allocation. The Total amount of projects to be identified by legislators shall be as follows:
a. For Congressional District or Party-List Representative: Thirty Million Pesos (P30,000,000) for soft programs and projects listed under Item A and Forty Million Pesos (P40,000,000) for infrastructure projects listed under Item B, the purposes of which are in the project menu of Special Provision No. 1; and
b. For Senators: One Hundred Million Pesos (P100,000,000) for soft programs and projects listed under Item A and One Hundred Million Pesos (P100,000,000) for infrastructure projects listed under Item B, the purposes of which are in the project menu of Special Provision No. 1.
Subject to the approved fiscal program for the year and applicable Special Provisions on the use and release of fund, only fifty percent (50%) of the foregoing amounts may be released in the first semester and the remaining fifty percent (50%) may be released in the second semester.
4. Realignment of Funds. Realignment under this Fund may only be allowed once. 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 are also authorized to approve realignment from one project/scope to another within the allotment received from this Fund, subject to the following: (i) for infrastructure projects, realignment is within the same implementing unit and same project category as the original project; (ii) allotment released has not yet been obligated for the original project/scope of work; and (iii) request is with the concurrence of the legislator concerned. The DBM must be informed in writing of any realignment within five (5) calendar days from approval thereof: PROVIDED, That any realignment under this Fund shall be limited within the same classification of soft or hard programs/projects listed under Special Provision 1 hereof: PROVIDED, FURTHER, That in case of realignments, modifications and revisions of projects to be implemented by LGUs, the LGU concerned shall certify that the cash has not yet been disbursed and the funds have been deposited back to the BTr.
Any realignment, 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.
5. Release of Funds. All request for release of funds shall be supported by the documents prescribed under Special Provision No. 1 and favorably endorsed by the House Committee on Appropriations and the Senate Committee on Finance, as the case may be. Funds shall be released to the implementing agencies subject to the conditions under Special Provision No. 1 and the limits prescribed under Special Provision No. 3.
PRESIDENTIAL PORK BARRELThe “Presidential Pork Barrel” questioned by the petitioners include the Malampaya Fund and the Presidential Social Fund. The Malampaya Fund was created as a special fund under Section 8, Presidential Decree (PD) 910 by then-President Ferdinand Marcos to help intensify, strengthen, and consolidate government efforts relating to the exploration, exploitation, and development of indigenous energy resources vital to economic growth. The Presidential Social Fund was created under Section 12, Title IV, PD 1869 (1983) or the Charter of the Philippine Amusement and Gaming Corporation (PAGCOR), as amended by PD 1993 issued in 1985. 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.
* ISSUES:A. Procedural Issues1.) Whether or not (WON) the issues raised in the consolidated petitions involve an actual and justiciable controversy
2.) WON the issues raised in the consolidated petitions are matters of policy subject to judicial review
3.) WON petitioners have legal standing to sue
4.) WON the 1994 Decision of the Supreme Court (the Court) on Philippine Constitution Association v. Enriquez (Philconsa) and the 2012 Decision of the Court on Lawyers Against Monopoly and Poverty v. Secretary of Budget and Management (LAMP) bar the re-litigation of the issue of constitutionality of the “pork barrel system” under the principles of res judicata and stare decisisB. Substantive Issues on the “Congressional Pork Barrel”WON the 2013 PDAF Article and all other Congressional Pork Barrel Laws similar to it are unconstitutional considering that they violate the principles of/constitutional provisions on…
1.) …separation of powers
2.) …non-delegability of legislative power
3.) …checks and balances
4.) …accountability
5.) …political dynasties
6.) …local autonomy
C. Substantive Issues on the “Presidential Pork Barrel”WON 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
* HELD AND RATIO:A. Procedural IssuesNo 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.1.) YES. 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 dispelled 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. The respondents’ proposed line-item budgeting scheme would not terminate the controversy nor diminish the useful purpose for its resolution since said reform is geared towards the 2014 budget, and not the 2013 PDAF Article which, being a distinct subject matter, remains legally effective and existing. Neither will the President’s declaration that he had already “abolished the PDAF” render the issues on PDAF moot precisely because the Executive branch of government has no constitutional authority to nullify or annul its legal existence.Even on the assumption of mootness, nevertheless, jurisprudence 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:i.) There is a grave violation of the Constitution: This is clear from the fundamental posture of petitioners – they essentially allege grave violations of the Constitution with respect to the principles of separation of powers, non-delegability of legislative power, checks and balances, accountability and local autonomy.ii.) The exceptional character of the situation and the paramount public interest is involved: This is also apparent from the nature of the interests involved – the constitutionality of the very system within which significant amounts of public funds have been and continue to be utilized and expended undoubtedly presents a situation of exceptional character as well as a matter of paramount public interest. The present petitions, in fact, have been lodged at a time when the system’s flaws have never before been magnified. To the Court’s mind, the coalescence of the CoA Report, the accounts of numerous whistle-blowers, and the government’s own recognition that reforms are needed “to address the reported abuses of the PDAF” 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. 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.iii.) When the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public: This is applicable largely due to the practical need for a definitive ruling on the system’s constitutionality. 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.iv.) The case is capable of repetition yet evading review. This 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 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.
2.) YES. 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).3. YES. Petitioners have sufficient locus standi to file the instant cases. 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.” 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. They 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.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 Chairperson’s statement during the Oral Arguments that the present controversy involves “not [merely] a systems failure” but a “complete breakdown of controls” amplifies the seriousness of the issues involved. Indeed, of greater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute.4.) NO. On the one hand, res judicata 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 attendant hereto since Philconsa and LAMP involved constitutional challenges against the 1994 CDF Article and 2004 PDAF Article respectively. However, 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. Thus, res judicata cannot apply.On the other hand, the doctrine of stare decisis is a bar to any attempt to re-litigate 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. Absent any powerful countervailing considerations, like cases ought to be decided alike. Philconsa was a limited response to a separation of powers problem, specifically on the propriety of conferring post-enactment identification authority to Members of Congress. On the contrary, the present cases call for a more holistic examination of (a) the inter-relation between the CDF and PDAF Articles with each other, formative as they are of the entire “Pork Barrel System” as well as (b) the intra-relation of post-enactment measures contained within a particular CDF or PDAF Article, including not only those related to the area of project identification but also to the
areas of fund release and realignment. The complexity of the issues and the broader legal analyses herein warranted may be, therefore, considered as a powerful countervailing reason against a wholesale application of the stare decisis principle.In addition, the Court observes that the Philconsa ruling was actually riddled with inherent constitutional inconsistencies which similarly countervail against a full resort to stare decisis. Since the Court now benefits from hindsight and current findings (such as the CoA Report), it 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.Again, since LAMP 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, stare decisis would not apply.B. Substantive Issues on the “Congressional Pork Barrel”1.) YES. At its core, legislators 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 Special Provisions 1 to 3 and the second paragraph of Special Provision 4. Legislators have also been accorded post-enactment authority in the areas of fund release (Special Provision 5 under the 2013 PDAF Article) and realignment (Special Provision 4, paragraphs 1 and 2 under the 2013 PDAF Article).Thus, legislators have been, in one form or another, authorized to participate in “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. That the said authority is treated as merely recommendatory in nature does not alter its unconstitutional tenor since the prohibition covers any role in the implementation or enforcement of the law. Towards this end, the Court must therefore abandon its ruling in Philconsa. The Court also points out that respondents have failed to substantiate their position that the identification authority of legislators is only of recommendatory import.In addition to declaring 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, the Court also declared that 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.2.) YES. The 2013 PDAF Article violates the principle of non-delegability since legislators are effectively allowed to individually exercise the power of appropriation, which, as settled in Philconsa, is lodged in Congress. The power to appropriate must be exercised only through legislation, pursuant to Section 29(1), Article VI of the 1987 Constitution which states: “No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.” The power of appropriation, as held by the Court in Bengzon v. Secretary of Justice and Insular Auditor, involves (a) setting apart by law a certain sum from the public revenue for (b) a specified purpose.
Under the 2013 PDAF Article, individual legislators are given a personal lump-sum fund from which they are able to dictate (a) how much from such fund would go to (b) a specific project or beneficiary that they themselves also determine. Since these two acts comprise the exercise of the power of appropriation as described in Bengzon, and given that the 2013 PDAF Article authorizes individual legislators to perform the same, undoubtedly, said legislators have been conferred the power to legislate which the Constitution does not, however, allow.3.) YES. 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 means that the actual items of PDAF appropriation would not have been written into the General Appropriations Bill and thus effectuated without veto consideration. This kind of lump-sum/post-enactment legislative identification budgeting system fosters the creation of a “budget within a budget” which subverts the prescribed procedure of presentment and consequently impairs the President’s power of item veto. As petitioners aptly point out, the President is forced 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.Even without its post-enactment legislative identification feature, the 2013 PDAF Article would remain constitutionally flawed since 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 President’s power of item veto.The same lump-sum budgeting scheme has, as the CoA Chairperson relays, “limit[ed] 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.”
4.) YES. 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, this very same concept of post-enactment authorization runs afoul of Section 14, Article VI of the 1987 Constitution which provides that: “…[A Senator or Member of the House of Representatives] 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.” Allowing
legislators to intervene in the various phases of project implementation renders them susceptible to taking undue advantage of their own office.However, the Court cannot completely agree that the same post-enactment authority and/or the individual legislator’s control of his PDAF per se would allow him to perpetrate himself in office. This is a matter which must be analyzed based on particular facts and on a case-to-case basis.Also, while the Court accounts for the possibility that the close operational proximity between legislators and the Executive department, through the former’s post-enactment participation, may affect the process of impeachment, this matter largely borders on the domain of politics and does not strictly concern the Pork Barrel System’s intrinsic constitutionality. As such, it is an improper subject of judicial assessment.
5.) NO. Section 26, Article II of the 1987 Constitution 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 a 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.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.
6.) YES. The Court, however, finds an inherent defect in the system which actually belies the avowed intention of “making equal the unequal” (Philconsa, 1994). 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. 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.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.
C. Substantive Issues on the “Presidential Pork Barrel”YES. Regarding the Malampaya Fund: The phrase “and for such other purposes as may be hereafter directed by the President” under Section 8 of PD 910 constitutes an undue delegation of legislative power insofar as it does not lay down a sufficient standard to adequately determine the limits of the President’s authority with respect to the purpose for which the Malampaya Funds may be used. As it
reads, the said phrase gives the President wide latitude to use the Malampaya Funds for any other purpose he may direct and, in effect, allows him to unilaterally appropriate public funds beyond the purview of the law.That the subject phrase may be confined only to “energy resource development and exploitation programs and projects of the government” under the principle of ejusdem generis, meaning that the general word or phrase is to be construed to include – or be restricted to – things akin to, resembling, or of the same kind or class as those specifically mentioned, 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 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.”However, 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.
Regarding the Presidential Social Fund: 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 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 infrastructure 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. Thus, the phrase “to finance the priority infrastructure development projects” must be stricken down as unconstitutional since – similar to 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.
G.R. No. 208566 November 19, 2013 BELGICA vs. HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR, et al, RespondentsG.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, et al, Respondents
PERLAS-BERNABE, J.:
NATURE:
These are consolidated petitions taken under Rule 65 of the Rules of Court, all of which assail the constitutionality of the Pork Barrel System.
FACTS:
The NBI Investigation was spawned by sworn affidavits of six (6) whistle-blowers who declared that JLN Corporation (Janet Lim Napoles) had swindled billions of pesos from the public coffers for "ghost projects" using dummy NGOs. Thus, 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.
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. Several petitions were lodged before the Court similarly seeking that the "Pork Barrel System" be declared unconstitutional
G.R. No. 208493 – SJS filed a Petition for Prohibition seeking that the "Pork Barrel System" be declared unconstitutional, and a writ of prohibition be issued permanently
G.R. No. 208566 - Belgica, et al filed an Urgent Petition For Certiorari and Prohibition With Prayer For The Immediate Issuance of Temporary Restraining Order and/or Writ of Preliminary Injunction seeking that the annual "Pork Barrel System," presently embodied in the provisions of the GAA of 2013 which provided for the 2013 PDAF, and the Executive‘s lump-sum, discretionary funds, such as the Malampaya Funds and the Presidential Social Fund, 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
UDK-14951 – A Petition filed 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
ISSUES:
1. 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.
2. Whether or not the phrases (under Section 8 of PD 910,116 relating to the Malampaya Funds, and 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.
HELD:
1. Yes, the PDAF article is unconstitutional. The 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. This violates the principle of separation of powers. Congress‘role must be confined to mere oversight that must be confined to: (1) scrutiny and (2) investigation and monitoring of the implementation of laws. Any action or step beyond that will undermine the separation of powers guaranteed by the constitution.
Thus, the court 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.
2. Yes. Sec 8 of PD 910- the phrase “and for such other purposes as may be hereafter directed by the President”‖ constitutes an undue delegation of legislative power insofar as it does not lay down a sufficient standard to adequately determine the limits of the President‘s authority with respect to the purpose for which the Malampaya Funds may be used. It 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.”
Section 12 of PD 1869, as amended by PD 1993- the phrases:
(b) "to finance the priority infrastructure development projects” was declared constitutional. IT INDICATED PURPOSE ADEQUATELY CURTAILS THE AUTHORITY OF THE PRESIDENT TO SPEND THE PRESIDENTIAL SOCIAL FUND ONLY FOR RESTORATION PURPOSES WHICH ARISE FROM CALAMITIES.
(b)” 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” was declared unconstitutional.IT GIVES THE PRESIDENT 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 INFRASTRUCTURE DEVELOPMENT PROJECTS‖ AND HENCE, LEAVES THE PRESIDENT WITHOUT ANY GUIDELINE TO CONSTRUE THE SAME.
Belgica vs. Executive Secretary Ochoa (digest)
BELGICA, ET AL. VS. EXECUTIVE SECRETARY, ET AL. (G.R. NO. 208566; SOCIAL JUSTICE SOCIETY VS. HON. FRANKLIN DRILON, ET AL. (G.R. NO. 208493); NEPOMUCENO VS. PRES. AQUINO (G.R. NO. 209251) NOVEMBER 19, 2013
FACTS
HISTORY of CONGRESSIONAL PORK BARREL
The term “pork barrel”, a political parlance of American-English origin, refers to an appropriation of government spending meant for localized projects and secured solely or primarily to bring money to a representative’s district.
The earliest form of the pork barrel system is found in Section 3 of Act 3044, otherwise known as the Public Works Act of 1922. Under this provision, release of funds and realignment of unexpended portions of an item or appropriation were subject to the approval of a joint committee elected by the Senate and the House of Representatives.
In 1950, members of Congress, by virtue of being representatives of the people, also became involved in project identification.
The pork barrel system was temporarily discontinued when martial law was declared.
It reappeared in 1982 through an item in the General Appropriations Act (“GAA ” ) called “Support for Local Development Projects” (“SLDP”). SLDP started the giving
of lump-sum allocations to individual legislators. The SLDP also began to cover not only public works project or “hard projects” but also covered “soft projects” such as those which would fall under education, health and livelihood.
After the EDSA People Power Revolution and the restoration of democracy, the pork barrel was revived through the “Mindanao Development Fund” and the “Visayas Development Fund”.
In 1990, the pork barrel was renamed “Countrywide Development Fund” (“CDF”). The CDF was meant to cover small local infrastructure and other priority community projects.
CDF Funds were, with the approval of the President, released directly to implementing agencies subject to the submission of the required list of projects and activities. Senators and congressmen could identify any kind of project from “hard projects” such as roads, buildings and bridges to “soft projects” such as textbooks, medicines, and scholarships.
In 1993, the CDF was further modified such that the release of funds was to be made upon the submission of the list of projects and activities identified by individual legislators. This was also the first time when the Vice-President was given an allocation.
The CDF contained the same provisions from 1994-1996 except that the Department of Budget and Management was required to submit reports to the Senate Committee on Finance and the House Committee on Appropriations regarding the releases made from the funds.
Congressional insertions (“CIs”) were another form of congressional pork barrel aside from the CDF. Examples of the CIs include the DepEd School Building Fund, the Congressional Initiative Allocations, and the Public Works Fund, among others.
The allocations for the School Building Fund were made upon prior consultation with the representative of the legislative district concerned and the legislators had the power to direct how, where and when these appropriations were to be spent.
In 1999, the CDF was removed from the GAA and replaced by three separate forms of CIs: (i) Food Security Program Fund, (ii) Lingap Para sa Mahihirap Fund, and (iii) Rural/Urban Development Infrastructure Program Fund. All three contained a provision requiring prior consultation with members of Congress for the release of funds.
In 2000, the Priority Development Assistance Fund (“PDAF”) appeared in the GAA. PDAF required prior consultation with the representative of the district before the release of funds. PDAF also allowed realignment of funds to any expense category except personal services and other personnel benefits.
In 2005, the PDAF 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. This was retained in the GAAs from 2006-2010.
It was during the Arroyo administration when the formal participation of non-governmental organizations in the implementation of PDAF projects was introduced.
The PDAF articles from 2002-2010 were silent with respect to specific amounts for individual legislators.
In 2011, the PDAF Article in the GAA contained an express statement on lump-sum amounts allocated for individual legislators and the Vice-President. It also contained a provision on realignment of funds but with the qualification that it may be allowed only once.
The 2013 PDAF Article allowed LGUs to be identified as implementing agencies. Legislators were also allowed identify programs/projects outside of his legislative district. Realignment of funds and release of funds were required to be favorably endorsed by the House Committee on Appropriations and the Senate Committee on Finance, as the case may be.
MALAMPAYA FUNDS AND PRESIDENTIAL SOCIAL FUND
The use of the term pork barrel was expanded to include certain funds of the President such as the Malampaya Fund and the Presidential Social Fund (“PSF”).
The Malampaya Fund was created as a special fund under Section 8 of Presidential Decree (“PD”) No. 910 issued by President Ferdinand Marcos on March 22, 1976.
The PSF was created under Section 12, Title IV of PD No. 1869, or the Charter of the Philippine Amusement and Gaming Corporation (“PAGCOR”), as amended by PD No. 1993. The PSF is managed and administered by the Presidential Management Staff and is sourced from the share of the government in the aggregate gross earnings of PAGCOR.
PORK BARREL MISUSE
In 1996, Marikina City Representative Romeo Candozo revealed that huge sums of money regularly went into the pockets of legislators in the form of kickbacks.
In 2004, several concerned citizens sought the nullification of the PDAF but the Supreme Court dismissed the petition for lack of evidentiary basis regarding illegal misuse of PDAF in the form of kickbacks.
In July 2013, the National Bureau of Investigation probed the allegation that a syndicate defrauded the government of P10 billion using funds from the pork barrel of lawmakers and various government agencies for scores of ghost projects.
In August 2013, the Commission on Audit released the results of a three-year audit investigation detailing the irregularities in the release of the PDAF from 2007 to 2009.
Whistle-blowers also alleged that at least P900 million from the Malampaya Funds had gone into a dummy NGO.
ISSUE/S
PROCEDURAL ISSUES
Whether or not (a) the issues raised in the consolidated petitions involve an actual and justiciable controversy, (b) the issues raised are matters of policy not subject to judicial review, (c) petitioners have legal standing to sue, (d) previous decisions of the Court bar the re-litigation of the constitutionality of the Pork Barrel system.
SUBSTANTIVE ISSUES
Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel laws are unconstitutional for violating the constitutional provisions on (a)separation of powers, (b) non-delegability of legislative power, (c) checks and balances, (d) accountability, (e) political dynasties, (f) local autonomy.
RULING
PROCEDURAL ISSUES
(a) There is an actual and justiciable controversy
There exists an actual and justiciable controversy in the cases. The requirement of contrariety of legal rights is satisfied by the antagonistic positions of the parties regarding the constitutionality of the pork barrel system.
The case is ripe for adjudication since the challenged funds and the laws allowing for their utilization are currently existing and operational and thereby posing an immediate or threatened injury to petitioners.
The case is not moot as the proposed reforms on the PDAF and the abolition thereof does not actually terminate the controversy on the matter. The President does not have constitutional authority to nullify or annul the legal existence of the PDAF.
The “moot and academic principle” cannot stop the Court from deciding the case considering that: (a) petitioners allege grave violation of the constitution, (b) the constitutionality of the pork barrel system presents a situation of exceptional character and is a matter of paramount public interest, (c) there is a practical need for a definitive ruling on the system’s constitutionality to guide the bench, the bar and the public, and (d) the preparation and passage of the national budget is an annual occurrence.
(b) Political Question Doctrine is Inapplicable
The intrinsic constitutionality of the “Pork Barrel System” is not an issue dependent upon the wisdom of the political branches of the government but rather a legal one which the Constitution itself has commanded the Court to act upon.
The 1987 Constitution expanded the concept of judicial power such that the Supreme Court has the power to determine whether there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality on the part of the government.
(c) Petitioners have legal standing to Sue
Petitioners have legal standing by virtue of being taxpayers and citizens of the Philippines.
As taxpayers, they are bound to suffer from the unconstitutional usage of public funds.
As citizens, the issues they have raised are matters of transcendental importance, of overreaching significance to society, or of paramount public interest.
(d) The Petition is not barred by previous cases
The present case is not barred by the ruling in Philconsa vs. Enriquez [1] because the Philconsa case 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 involve a more holistic examination of (a) the inter-relation between the CDF and the PDAF Articles with each other, and (b) the inter-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.
Moreover, the Philconsa case was riddled with inherent constitutional inconsistencies considering that 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. This power cannot be exercised by individual members of Congress and the authority to appropriate cannot be exercised after the GAA has already been passed.
The case of Lawyers Against Monopoly and Poverty vs. Secretary of Budget and Management[2] does not also bar judgment on the present case because it was dismissed on a procedural technicality and hence no controlling doctrine was rendered.
SUBSTANTIVE ISSUES ON CONGRESSIONAL PORK BARREL
(a) The separation of powers between the Executive and the Legislative Departments has been violated.
The post-enactment measures including 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, which belongs to the executive department.
Legislators have been, in one form or another, authorized to participate in 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.
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 to identify projects is treated as merely recommendatory in nature does not alter its unconstitutional tenor since the prohibition covers any role in the implementation or enforcement of the law.
Respondents also failed to prove that the role of the legislators is only recommendatory in nature. They even admitted that the identification of the legislator constitutes a mandatory requirement before the PDAF can be tapped as a funding source.
(b)The principle of non-delegability of legislative powers has been violated
The 2013 PDAF Article, insofar as it confers post-enactment identification authority to individual legislators, violates the principle of non-delegability since said legislators are effectively allowed to individually exercise the power of appropriation, which – as settled in Philconsa – is lodged in Congress.
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.
The legislators are individually exercising the power of appropriation because each of them determines (a) how much of their PDAF fund would go to and (b) a specific project or beneficiary that they themselves also determine.
(c) Checks and balances
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.
This kind of lump-sum/post-enactment legislative identification budgeting system fosters the creation of a ―budget within a budget which subverts the prescribed procedure of presentment and consequently impairs the President‘s power of item veto.
It forces the President to decide between (a) accepting the entire 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.
In fact, 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. This is because the appropriation law leaves the actual amounts and purposes of the appropriation for further determination and, therefore, does not readily indicate a discernible item which may be subject to the President‘s power of item veto.
(d) The Congressional Pork Barrel partially prevents accountability as Congress is incapable of checking itself or its members.
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.
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.
The concept of post-enactment authorization violates Section 14, Article VI of the 1987 Constitution, which prohibits members of Congress to intervene in any matter before any office of the Government, because it renders them susceptible to taking undue advantage of their own office.
The Court, however, cannot completely agree that the same post-enactment authority and/or the individual legislator‘s control of his PDAF per se would allow him to perpetuate himself in office.
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.
(e) The constitutional provision regarding political dynasties is not self-executing.
Section 26, Article II of the 1987 Constitution, which provides that the state shall prohibit political dynasties as may be defined by law, is not a self-executing provision.
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.
(f) The Congressional Pork Barrel violates constitutional principles on local autonomy
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 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.
The allocation/division limits are clearly not based on genuine parameters of equality, wherein economic or geographic indicators have been taken into consideration.
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.
SUBSTANTIVE ISSUES ON PRESIDENTIAL PORK BARREL
(a) Section 8 of PD No. 910 and Section 12 of PD No. 1869 are valid appropriation laws.
For an appropriation law to be valid under Section 29 (1), Article VI of the 1987 Constitution, which provides that “No money shall be paid out of the Treasury except in pursuance of an appropriation made by law”, it is enough that (a) the provision of law sets apart a determinate or determinable amount of money and(b) allocates the same for a particular public purpose.
Section 8 of PD 910 is a valid appropriation law because it set apart a determinable amount: a Special Fund comprised of ― all fees, revenues, and receipts of the [Energy Development] Board from any and all sources.
It also specified a public purpose: energy resource development and exploitation programs and projects of the government and for such other purposes as may be hereafter directed by the President.
Section 12 of PD No. 1869 is also a valid appropriation law because it set apart a determinable amount: [a]fter 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 thanP150,000,000.00.
It also specified a public purpose: 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.
(b) Section 8 of PD No. 910 and Section 12 of PD No. 1869 constitutes undue delegation of legislation powers.
The phrase “and for such other purposes as may be hereafter directed by the President” under Section 8 of PD 910 constitutes an undue delegation of legislative power insofar as it does not lay down a sufficient standard to adequately determine the limits of the President‘s authority with respect to the purpose for which the Malampaya Funds may be used.
This 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.
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.
Section 12 of PD No. 1869 constitutes an undue delegation of legislative powers because it lies independently unfettered by any sufficient standard of the delegating law.
The law does not supply a definition of “priority infrastructure development projects” and hence, leaves the President without any guideline to construe the same.
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.
EN BANC
G.R. No. 209287 July 1, 2014
MARIA CAROLINA P. ARAULLO, CHAIRPERSON, BAGONG ALYANSANG MAKABAYAN; JUDY M. TAGUIWALO, PROFESSOR, UNIVERSITY OF THE PHILIPPINES DILIMAN, CO-CHAIRPERSON, PAGBABAGO; HENRI KAHN, CONCERNED CITIZENS MOVEMENT; REP. LUZ ILAGAN, GABRIELA WOMEN'S PARTY REPRESENTATIVE; REP. CARLOS ISAGANI ZARATE, BAY AN MUNA PARTY-LIST REPRESENTATIVE; RENATO M. REYES, JR., SECRETARY GENERAL OF BAYAN; MANUEL K. DAYRIT, CHAIRMAN, ANG KAPATIRAN PARTY; VENCER MARI E. CRISOSTOMO, CHAIRPERSON, ANAKBAYAN; VICTOR VILLANUEVA, CONVENOR, YOUTH ACT NOW, Petitioners, vs.BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES; PAQUITO N. OCHOA, JR., EXECUTIVE SECRETARY; AND FLORENCIO B. ABAD, SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 209135
AUGUSTO L. SY JUCO JR., Ph.D., Petitioner, vs.FLORENCIO B. ABAD, IN HIS CAPACITY AS THE SECRETARY OF DEPARTMENT OF BUDGET AND MANAGEMENT; AND HON. FRANKLIN MAGTUNAO DRILON, IN HIS CAP A CITY AS THE SENATE PRESIDENT OF THE PHILIPPINES, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 209136
MANUELITO R. LUNA, Petitioner, vs.SECRETARY FLORENCIO ABAD, IN HIS OFFICIAL CAPACITY AS HEAD OF THE DEPARTMENT OF BUDGET AND MANAGEMENT; AND EXECUTIVE SECRETARY
PAQUITO OCHOA, IN HIS OFFICIAL CAPACITY AS ALTER EGO OF THE PRESIDENT, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 209155
ATTY. JOSE MALV AR VILLEGAS, JR., Petitioner, vs.THE HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.; AND THE SECRETARY OF BUDGET AND MANAGEMENT FLORENCIO B. ABAD, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 209164
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), REPRESENTED BY DEAN FROILAN M. BACUNGAN, BENJAMIN E. DIOKNO AND LEONOR M. BRIONES, Petitioners, vs.DEPARTMENT OF BUDGET AND MANAGEMENT AND/OR HON. FLORENCIO B. ABAD, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 209260
INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioner, vs.SECRETARY FLORENCIO B. ABAD OF THE DEPARTMENT OF BUDGET AND MANAGEMENT (DBM),Respondent.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 209442
GRECO ANTONIOUS BEDA B. BELGICA; BISHOP REUBEN MABANTE AND REV. JOSE L. GONZALEZ,Petitioners, vs.PRESIDENT BENIGNO SIMEON C. AQUINO III, THE SENATE OF THE PHILIPPINES, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON; THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER FELICIANO BELMONTE, JR.; THE EXECUTIVE OFFICE, REPRESENTED BY EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.; THE DEPARTMENT OF BUDGET AND MANAGEMENT, REPRESENTED BY SECRETARY FLORENCIO ABAD; THE DEPARTMENT OF FINANCE, REPRESENTED BY SECRETARY CESAR V. PURISIMA; AND THE BUREAU OF TREASURY, REPRESENTED BY ROSALIA V. DE LEON,Respondents.
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G.R. No. 209517
CONFEDERATION FOR UNITY, RECOGNITION AND ADV AN CEMENT OF GOVERNMENT EMPLOYEES (COURAGE), REPRESENTED BY ITS 1ST VICE PRESIDENT, SANTIAGO DASMARINAS, JR.; ROSALINDA NARTATES, FOR HERSELF AND AS NATIONAL PRESIDENT OF THE CONSOLIDATED UNION OF EMPLOYEES NATIONAL HOUSING AUTHORITY (CUENHA); MANUEL BACLAGON, FOR HIMSELF AND AS PRESIDENT OF THE SOCIAL WELFARE EMPLOYEES ASSOCIATION OF THE PHILIPPINES, DEPARTMENT OF SOCIAL WELFARE AND DEVELOPMENT CENTRAL OFFICE (SWEAP-DSWD CO); ANTONIA PASCUAL, FOR HERSELF AND AS NATIONAL PRESIDENT OF THE DEPARTMENT OF AGRARIAN REFORM EMPLOYEES ASSOCIATION (DAREA); ALBERT MAGALANG, FOR HIMSELF AND AS PRESIDENT OF THE ENVIRONMENT AND MANAGEMENT BUREAU EMPLOYEES UNION (EMBEU); AND MARCIAL ARABA, FOR HIMSELF AND AS PRESIDENT OF THE KAPISANAN PARA SA KAGALINGAN NG MGA KAW ANI NG MMDA (KKKMMDA),Petitioners, vs.BENIGNO SIMEON C. AQUINO Ill, PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES; PAQUITO OCHOA, JR., EXECUTIVE SECRETARY; AND HON. FLORENCIO B. ABAD, SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.
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G.R. No. 209569
VOLUNTEERS AGAINST CRIME AND CORRUPTION (VACC), REPRESENTED BY DANTE L. JIMENEZ,Petitioner, vs.PAQUITO N. OCHOA, EXECUTIVE SECRETARY, AND FLORENCIO B. ABAD, SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.
D E C I S I O N
BERSAMIN, J.:
For resolution are the consolidated petitions assailing the constitutionality of the Disbursement Acceleration Program(DAP), National Budget Circular (NBC) No. 541, and related issuances of the Department of Budget and Management (DBM) implementing the DAP.
At the core of the controversy is Section 29(1) of Article VI of the 1987 Constitution, a provision of the fundamental law that firmly ordains that "[n]o money shall be paid out of the Treasury except in pursuance of an appropriation made by law." The tenor and context of the challenges posed by the petitioners against the DAP indicate that the DAP contravened this provision by allowing the Executive to allocate public money pooled from programmed and unprogrammed funds of its various agencies in the guise of the President exercising his constitutional authority under Section 25(5) of the 1987 Constitution to transfer funds out of savings to augment the appropriations of offices within the Executive Branch of the Government. But the challenges are further complicated by the interjection of allegations of transfer of funds to agencies or offices outside of the Executive.
Antecedents
What has precipitated the controversy?
On September 25, 2013, Sen. Jinggoy Ejercito Estrada delivered a privilege speech in the Senate of the Philippines to reveal that some Senators, including himself, had been allotted an additional P50 Million each as "incentive" for voting in favor of the impeachment of Chief Justice Renato C. Corona.
Responding to Sen. Estrada’s revelation, Secretary Florencio Abad of the DBM issued a public statement entitled Abad: Releases to Senators Part of Spending Acceleration Program,1 explaining that the funds released to the Senators had been part of the DAP, a program designed by the DBM to ramp up spending to accelerate economic expansion. He clarified that the funds had been released to the Senators based on their letters of request for funding; and that it was not the first time that releases from the DAP had been made because the DAP had already been instituted in 2011 to ramp up spending after sluggish disbursements had caused the growth of the gross domestic product (GDP) to slow down. He explained that the funds under the DAP were usually taken from (1) unreleased appropriations under Personnel Services;2 (2) unprogrammed funds; (3) carry-over appropriations unreleased from the previous year; and (4) budgets for slow-moving items or projects that had been realigned to support faster-disbursing projects.
The DBM soon came out to claim in its website3 that the DAP releases had been sourced from savings generated by the Government, and from unprogrammed funds; and that the savings had been derived from (1) the pooling of unreleased appropriations, like unreleased Personnel Services4 appropriations that would lapse at the end of the year, unreleased appropriations of slow-moving projects and discontinued projects per zero based budgeting findings;5 and (2) the withdrawal of unobligated allotments also for slow-moving programs and projects that had been earlier released to the agencies of the National Government.
The DBM listed the following as the legal bases for the DAP’s use of savings,6 namely: (1) Section 25(5), Article VI of the 1987 Constitution, which granted to the President the authority to augment an item for his office in the general appropriations law; (2) Section 49 (Authority to Use Savings for Certain Purposes) and Section 38 (Suspension of Expenditure Appropriations), Chapter 5, Book VI of Executive Order (EO) No. 292 (Administrative Code of 1987); and (3) the General Appropriations Acts (GAAs) of 2011, 2012 and 2013, particularly their provisions on the (a) use of savings; (b) meanings of savings and augmentation; and (c) priority in the use of savings.
As for the use of unprogrammed funds under the DAP, the DBM cited as legal bases the special provisions on unprogrammed fund contained in the GAAs of 2011, 2012 and 2013.
The revelation of Sen. Estrada and the reactions of Sec. Abad and the DBM brought the DAP to the consciousness of the Nation for the first time, and made this present controversy inevitable. That the issues against the DAP came at a time when the Nation was still seething in anger over Congressional pork barrel – "an appropriation of government spending meant for localized projects and secured solely or primarily to bring money to a representative’s district"7 – excited the Nation as heatedly as the pork barrel controversy.
Nine petitions assailing the constitutionality of the DAP and the issuances relating to the DAP were filed within days of each other, as follows: G.R. No. 209135 (Syjuco), on October 7, 2013; G.R. No. 209136 (Luna), on October 7, 2013; G.R. No. 209155 (Villegas),8 on October 16,
2013; G.R. No. 209164 (PHILCONSA), on October 8, 2013; G.R. No. 209260 (IBP), on October 16, 2013; G.R. No. 209287 (Araullo), on October 17, 2013; G.R. No. 209442 (Belgica), on October 29, 2013; G.R. No. 209517 (COURAGE), on November6, 2013; and G.R. No. 209569 (VACC), on November 8, 2013.
In G.R. No. 209287 (Araullo), the petitioners brought to the Court’s attention NBC No. 541 (Adoption of Operational Efficiency Measure – Withdrawal of Agencies’ Unobligated Allotments as of June 30, 2012), alleging that NBC No. 541, which was issued to implement the DAP, directed the withdrawal of unobligated allotments as of June 30, 2012 of government agencies and offices with low levels of obligations, both for continuing and current allotments.
In due time, the respondents filed their Consolidated Comment through the Office of the Solicitor General (OSG).
The Court directed the holding of oral arguments on the significant issues raised and joined.
Issues
Under the Advisory issued on November 14, 2013, the presentations of the parties during the oral arguments were limited to the following, to wit:
Procedural Issue:
A. Whether or not certiorari, prohibition, and mandamus are proper remedies to assail the constitutionality and validity of the Disbursement Acceleration Program (DAP), National Budget Circular (NBC) No. 541, and all other executive issuances allegedly implementing the DAP. Subsumed in this issue are whether there is a controversy ripe for judicial determination, and the standing of petitioners.
Substantive Issues:
B. Whether or not the DAP violates Sec. 29, Art. VI of the 1987 Constitution, which provides: "No money shall be paid out of the Treasury except in pursuance of an appropriation made by law."
C. Whether or not the DAP, NBC No. 541, and all other executive issuances allegedly implementing the DAP violate Sec. 25(5), Art. VI of the 1987 Constitution insofar as:
(a)They treat the unreleased appropriations and unobligated allotments withdrawn from government agencies as "savings" as the term is used in Sec. 25(5), in relation to the provisions of the GAAs of 2011, 2012 and 2013;
(b)They authorize the disbursement of funds for projects or programs not provided in the GAAs for the Executive Department; and
(c)They "augment" discretionary lump sum appropriations in the GAAs.
D. Whether or not the DAP violates: (1) the Equal Protection Clause, (2) the system of checks and balances, and (3) the principle of public accountability enshrined in the 1987 Constitution considering that it authorizes the release of funds upon the request of legislators.
E. Whether or not factual and legal justification exists to issue a temporary restraining order to restrain the implementation of the DAP, NBC No. 541, and all other executive issuances allegedly implementing the DAP.
In its Consolidated Comment, the OSG raised the matter of unprogrammed funds in order to support its argument regarding the President’s power to spend. During the oral arguments, the propriety of releasing unprogrammed funds to support projects under the DAP was considerably discussed. The petitioners in G.R. No. 209287 (Araullo) and G.R. No. 209442 (Belgica) dwelled on unprogrammed funds in their respective memoranda. Hence, an additional issue for the oral arguments is stated as follows:
F. Whether or not the release of unprogrammed funds under the DAP was in accord with the GAAs.
During the oral arguments held on November 19, 2013, the Court directed Sec. Abad to submit a list of savings brought under the DAP that had been sourced from (a) completed programs; (b) discontinued or abandoned programs; (c) unpaid appropriations for compensation; (d) a certified copy of the President’s directive dated June 27, 2012 referred to in NBC No. 541; and (e) all circulars or orders issued in relation to the DAP.9
In compliance, the OSG submitted several documents, as follows:
(1) A certified copy of the Memorandum for the President dated June 25, 2012 (Omnibus Authority to Consolidate Savings/Unutilized Balances and their Realignment);10
(2) Circulars and orders, which the respondents identified as related to the DAP, namely:
a. NBC No. 528 dated January 3, 2011 (Guidelines on the Release of Funds for FY 2011);
b. NBC No. 535 dated December 29, 2011 (Guidelines on the Release of Funds for FY 2012);
c. NBC No. 541 dated July 18, 2012 (Adoption of Operational Efficiency Measure – Withdrawal of Agencies’ Unobligated Allotments as of June 30, 2012);
d. NBC No. 545 dated January 2, 2013 (Guidelines on the Release of Funds for FY 2013);
e. DBM Circular Letter No. 2004-2 dated January 26, 2004 (Budgetary Treatment of Commitments/Obligations of the National Government);
f. COA-DBM Joint Circular No. 2013-1 dated March 15, 2013 (Revised Guidelines on the Submission of Quarterly Accountability Reports on Appropriations, Allotments, Obligations and Disbursements);
g. NBC No. 440 dated January 30, 1995 (Adoption of a Simplified Fund Release System in the Government).
(3) A breakdown of the sources of savings, including savings from discontinued projects and unpaid appropriations for compensation from 2011 to 2013
On January 28, 2014, the OSG, to comply with the Resolution issued on January 21, 2014 directing the respondents to submit the documents not yet submitted in compliance with the directives of the Court or its Members, submitted several evidence packets to aid the Court in understanding the factual bases of the DAP, to wit:
(1) First Evidence Packet11 – containing seven memoranda issued by the DBM through Sec. Abad, inclusive of annexes, listing in detail the 116 DAP identified projects approved and duly signed by the President, as follows:
a. Memorandum for the President dated October 12, 2011 (FY 2011 Proposed Disbursement Acceleration Program (Projects and Sources of Funds);
b. Memorandum for the President dated December 12, 2011 (Omnibus Authority to Consolidate Savings/Unutilized Balances and its Realignment);
c. Memorandum for the President dated June 25, 2012 (Omnibus Authority to Consolidate Savings/Unutilized Balances and their Realignment);
d. Memorandum for the President dated September 4, 2012 (Release of funds for other priority projects and expenditures of the Government);
e. Memorandum for the President dated December 19, 2012 (Proposed Priority Projects and Expenditures of the Government);
f. Memorandum for the President dated May 20, 2013 (Omnibus Authority to Consolidate Savings/Unutilized Balances and their Realignment to Fund the Quarterly Disbursement Acceleration Program); and
g. Memorandum for the President dated September 25, 2013 (Funding for the Task Force Pablo Rehabilitation Plan).
(2) Second Evidence Packet12 – consisting of 15 applications of the DAP, with their corresponding Special Allotment Release Orders (SAROs) and appropriation covers;
(3) Third Evidence Packet13 – containing a list and descriptions of 12 projects under the DAP;
(4) Fourth Evidence Packet14 – identifying the DAP-related portions of the Annual Financial Report (AFR) of the Commission on Audit for 2011 and 2012;
(5) Fifth Evidence Packet15 – containing a letter of Department of Transportation and Communications(DOTC) Sec. Joseph Abaya addressed to Sec. Abad recommending the withdrawal of funds from his agency, inclusive of annexes; and
(6) Sixth Evidence Packet16 – a print-out of the Solicitor General’s visual presentation for the January 28, 2014 oral arguments.
On February 5, 2014,17 the OSG forwarded the Seventh Evidence Packet,18 which listed the sources of funds brought under the DAP, the uses of such funds per project or activity pursuant to DAP, and the legal bases thereof.
On February 14, 2014, the OSG submitted another set of documents in further compliance with the Resolution dated January 28, 2014, viz:
(1) Certified copies of the certifications issued by the Bureau of Treasury to the effect that the revenue collections exceeded the original revenue targets for the years 2011, 2012 and 2013, including collections arising from sources not considered in the original revenue targets, which certifications were required for the release of the unprogrammed funds as provided in Special Provision No. 1 of Article XLV, Article XVI, and Article XLV of the 2011, 2012 and 2013 GAAs; and (2) A report on releases of savings of the Executive Department for the use of the Constitutional Commissions and other branches of the Government, as well as the fund releases to the Senate and the Commission on Elections (COMELEC).
RULING
I.
Procedural Issue:
a) The petitions under Rule 65 are proper remedies
All the petitions are filed under Rule 65 of the Rules of Court, and include applications for the issuance of writs of preliminary prohibitory injunction or temporary restraining orders. More specifically, the nature of the petitions is individually set forth hereunder, to wit:
G.R. No. 209135 (Syjuco) Certiorari, Prohibition and Mandamus
G.R. No. 209136 (Luna) Certiorariand Prohibition
G.R. No. 209155 (Villegas) Certiorariand Prohibition
G.R. No. 209164 (PHILCONSA) Certiorariand Prohibition
G.R. No. 209260 (IBP) Prohibition
G.R. No. 209287 (Araullo) Certiorariand Prohibition
G.R. No. 209442 (Belgica) Certiorari
G.R. No. 209517 (COURAGE) Certiorari and Prohibition
G.R. No. 209569 (VACC) Certiorari and Prohibition
The respondents submit that there is no actual controversy that is ripe for adjudication in the absence of adverse claims between the parties;19 that the petitioners lacked legal standing to sue because no allegations were made to the effect that they had suffered any injury as a result
of the adoption of the DAP and issuance of NBC No. 541; that their being taxpayers did not immediately confer upon the petitioners the legal standing to sue considering that the adoption and implementation of the DAP and the issuance of NBC No. 541 were not in the exercise of the taxing or spending power of Congress;20 and that even if the petitioners had suffered injury, there were plain, speedy and adequate remedies in the ordinary course of law available to them, like assailing the regularity of the DAP and related issuances before the Commission on Audit (COA) or in the trial courts.21
The respondents aver that the special civil actions of certiorari and prohibition are not proper actions for directly assailing the constitutionality and validity of the DAP, NBC No. 541, and the other executive issuances implementing the DAP.22
In their memorandum, the respondents further contend that there is no authorized proceeding under the Constitution and the Rules of Court for questioning the validity of any law unless there is an actual case or controversy the resolution of which requires the determination of the constitutional question; that the jurisdiction of the Court is largely appellate; that for a court of law to pass upon the constitutionality of a law or any act of the Government when there is no case or controversy is for that court to set itself up as a reviewer of the acts of Congress and of the President in violation of the principle of separation of powers; and that, in the absence of a pending case or controversy involving the DAP and NBC No. 541, any decision herein could amount to a mere advisory opinion that no court can validly render.23
The respondents argue that it is the application of the DAP to actual situations that the petitioners can question either in the trial courts or in the COA; that if the petitioners are dissatisfied with the ruling either of the trial courts or of the COA, they can appeal the decision of the trial courts by petition for review on certiorari, or assail the decision or final order of the COA by special civil action for certiorari under Rule 64 of the Rules of Court.24
The respondents’ arguments and submissions on the procedural issue are bereft of merit.
Section 1, Article VIII of the 1987 Constitution expressly provides:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
Thus, the Constitution vests judicial power in the Court and in such lower courts as may be established by law. In creating a lower court, Congress concomitantly determines the jurisdiction of that court, and that court, upon its creation, becomes by operation of the Constitution one of the repositories of judicial power.25 However, only the Court is a constitutionally created court, the rest being created by Congress in its exercise of the legislative power.
The Constitution states that judicial power includes the duty of the courts of justice not only "to settle actual controversies involving rights which are legally demandable and enforceable" but also "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government." It has
thereby expanded the concept of judicial power, which up to then was confined to its traditional ambit of settling actual controversies involving rights that were legally demandable and enforceable.
The background and rationale of the expansion of judicial power under the 1987 Constitution were laid out during the deliberations of the 1986 Constitutional Commission by Commissioner Roberto R. Concepcion (a former Chief Justice of the Philippines) in his sponsorship of the proposed provisions on the Judiciary, where he said:–
The Supreme Court, like all other courts, has one main function: to settle actual controversies involving conflicts of rights which are demandable and enforceable. There are rights which are guaranteed by law but cannot be enforced by a judicial party. In a decided case, a husband complained that his wife was unwilling to perform her duties as a wife. The Court said: "We can tell your wife what her duties as such are and that she is bound to comply with them, but we cannot force her physically to discharge her main marital duty to her husband. There are some rights guaranteed by law, but they are so personal that to enforce them by actual compulsion would be highly derogatory to human dignity." This is why the first part of the second paragraph of Section 1 provides that: Judicial power includes the duty of courts to settle actual controversies involving rights which are legally demandable or enforceable…
The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a presidential system of government, the Supreme Court has, also, another important function. The powers of government are generally considered divided into three branches: the Legislative, the Executive and the Judiciary. Each one is supreme within its own sphere and independent of the others. Because of that supremacy power to determine whether a given law is valid or not is vested in courts of justice.
Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgmenton matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to settle matters of this nature, by claiming that such matters constitute a political question. (Bold emphasis supplied)26
Upon interpellation by Commissioner Nolledo, Commissioner Concepcion clarified the scope of judicial power in the following manner:–
MR. NOLLEDO. x x x
The second paragraph of Section 1 states: "Judicial power includes the duty of courts of justice to settle actual controversies…" The term "actual controversies" according to the Commissioner should refer to questions which are political in nature and, therefore, the courts should not refuse to decide those political questions. But do I understand it right that this is restrictive or only an example? I know there are cases which are not actual yet the court can assume jurisdiction. An example is the petition for declaratory relief.
May I ask the Commissioner’s opinion about that?
MR. CONCEPCION. The Supreme Court has no jurisdiction to grant declaratory judgments.
MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power is not vested in the Supreme Court alone but also in other lower courts as may be created by law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?
MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify political questions with jurisdictional questions. But there is a difference.
MR. NOLLEDO. Because of the expression "judicial power"?
MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but where there is a question as to whether the government had authority or had abused its authority to the extent of lacking jurisdiction or excess of jurisdiction, that is not a political question. Therefore, the court has the duty to decide.27
Our previous Constitutions equally recognized the extent of the power of judicial review and the great responsibility of the Judiciary in maintaining the allocation of powers among the three great branches of Government. Speaking for the Court in Angara v. Electoral Commission,28 Justice Jose P. Laurel intoned:
x x x In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several department and among the integral or constituent units thereof.
x x x x
The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other department; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. x x x29
What are the remedies by which the grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government may be determined under the Constitution?
The present Rules of Court uses two special civil actions for determining and correcting grave abuse of discretion amounting to lack or excess of jurisdiction. These are the special civil actions for certiorari and prohibition, and both are governed by Rule 65. A similar remedy of certiorari exists under Rule 64, but the remedy is expressly applicable only to the judgments and final orders or resolutions of the Commission on Elections and the Commission on Audit.
The ordinary nature and function of the writ of certiorari in our present system are aptly explained in Delos Santos v. Metropolitan Bank and Trust Company:30
In the common law, from which the remedy of certiorari evolved, the writ of certiorari was issued out of Chancery, or the King’s Bench, commanding agents or officers of the inferior courts to return the record of a cause pending before them, so as to give the party more sure and speedy justice, for the writ would enable the superior court to determine from an inspection of the record whether the inferior court’s judgment was rendered without authority. The errors were of such a nature that, if allowed to stand, they would result in a substantial injury to the petitioner to whom no other remedy was available. If the inferior court acted without authority, the record was then revised and corrected in matters of law. The writ of certiorari was limited to cases in which the inferior court was said to be exceeding its jurisdiction or was not proceeding according to essential requirements of law and would lie only to review judicial or quasi-judicial acts.
The concept of the remedy of certiorari in our judicial system remains much the same as it has been in the common law. In this jurisdiction, however, the exercise of the power to issue the writ of certiorari is largely regulated by laying down the instances or situations in the Rules of Court in which a superior court may issue the writ of certiorari to an inferior court or officer. Section 1, Rule 65 of the Rules of Court compellingly provides the requirements for that purpose, viz:
x x x x
The sole office of the writ of certiorari is the correction of errors of jurisdiction, which includes the commission of grave abuse of discretion amounting to lack of jurisdiction. In this regard, mere abuse of discretion is not enough to warrant the issuance of the writ. The abuse of discretion must be grave, which means either that the judicial or quasi-judicial power was exercised in an arbitrary or despotic manner by reason of passion or personal hostility, or that the respondent judge, tribunal or board evaded a positive duty, or virtually refused to perform the duty enjoined or to act in contemplation of law, such as when such judge, tribunal or board exercising judicial or quasi-judicial powers acted in a capricious or whimsical manner as to be equivalent to lack of jurisdiction.31
Although similar to prohibition in that it will lie for want or excess of jurisdiction, certiorari is to be distinguished from prohibition by the fact that it is a corrective remedy used for the re-examination of some action of an inferior tribunal, and is directed to the cause or proceeding in the lower court and not to the court itself, while prohibition is a preventative remedy issuing to restrain future action, and is directed to the court itself.32 The Court expounded on the nature and function of the writ of prohibition in Holy Spirit Homeowners Association, Inc. v. Defensor:33
A petition for prohibition is also not the proper remedy to assail an IRR issued in the exercise of a quasi-legislative function. Prohibition is an extraordinary writ directed against any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions, ordering said entity or person to desist from further proceedings when said proceedings are without or in excess of said entity’s or person’s jurisdiction, or are accompanied
with grave abuse of discretion, and there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law. Prohibition lies against judicial or ministerial functions, but not against legislative or quasi-legislative functions. Generally, the purpose of a writ of prohibition is to keep a lower court within the limits of its jurisdiction in order to maintain the administration of justice in orderly channels. Prohibition is the proper remedy to afford relief against usurpation of jurisdiction or power by an inferior court, or when, in the exercise of jurisdiction in handling matters clearly within its cognizance the inferior court transgresses the bounds prescribed to it by the law, or where there is no adequate remedy available in the ordinary course of law by which such relief can be obtained. Where the principal relief sought is to invalidate an IRR, petitioners’ remedy is an ordinary action for its nullification, an action which properly falls under the jurisdiction of the Regional Trial Court. In any case, petitioners’ allegation that "respondents are performing or threatening to perform functions without or in excess of their jurisdiction" may appropriately be enjoined by the trial court through a writ of injunction or a temporary restraining order.
With respect to the Court, however, the remedies of certiorari and prohibition are necessarily broader in scope and reach, and the writ of certiorari or prohibition may be issued to correct errors of jurisdiction committed not only by a tribunal, corporation, board or officer exercising judicial, quasi-judicial or ministerial functions but also to set right, undo and restrain any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the Government, even if the latter does not exercise judicial, quasi-judicial or ministerial functions. This application is expressly authorized by the text of the second paragraph of Section 1, supra.
Thus, petitions for certiorari and prohibition are appropriate remedies to raise constitutional issues and to review and/or prohibit or nullify the acts of legislative and executive officials.34
Necessarily, in discharging its duty under Section 1, supra, to set right and undo any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the Government, the Court is not at all precluded from making the inquiry provided the challenge was properly brought by interested or affected parties. The Court has been thereby entrusted expressly or by necessary implication with both the duty and the obligation of determining, in appropriate cases, the validity of any assailed legislative or executive action. This entrustment is consistent with the republican system of checks and balances.35
Following our recent dispositions concerning the congressional pork barrel, the Court has become more alert to discharge its constitutional duty. We will not now refrain from exercising our expanded judicial power in order to review and determine, with authority, the limitations on the Chief Executive’s spending power.
b) Requisites for the exercise of thepower of judicial review werecomplied with
The requisites for the exercise of the power of judicial review are the following, namely: (1) there must bean actual case or justiciable controversy before the Court; (2) the question before the Court must be ripe for adjudication; (3) the person challenging the act must be a proper party; and (4) the issue of constitutionality must be raised at the earliest opportunity and must be the very litis mota of the case.36
The first requisite demands that there be an actual case calling for the exercise of judicial power by the Court.37 An actual case or controversy, in the words of Belgica v. Executive Secretary Ochoa:38
x x x is one which involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute. In other words, "[t]here must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence." Related to the requirement of an actual case or controversy is the requirement of "ripeness," meaning that the questions raised for constitutional scrutiny are already ripe for adjudication. "A question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. It is a prerequisite that something had then been accomplished or performed by either branch before a court may come into the picture, and the petitioner must allege the existence of an immediate or threatened injury to itself as a result of the challenged action." "Withal, courts will decline to pass upon constitutional issues through advisory opinions, bereft as they are of authority to resolve hypothetical or moot questions."
An actual and justiciable controversy exists in these consolidated cases. The incompatibility of the perspectives of the parties on the constitutionality of the DAP and its relevant issuances satisfy the requirement for a conflict between legal rights. The issues being raised herein meet the requisite ripeness considering that the challenged executive acts were already being implemented by the DBM, and there are averments by the petitioners that such implementation was repugnant to the letter and spirit of the Constitution. Moreover, the implementation of the DAP entailed the allocation and expenditure of huge sums of public funds. The fact that public funds have been allocated, disbursed or utilized by reason or on account of such challenged executive acts gave rise, therefore, to an actual controversy that is ripe for adjudication by the Court.
It is true that Sec. Abad manifested during the January 28, 2014 oral arguments that the DAP as a program had been meanwhile discontinued because it had fully served its purpose, saying: "In conclusion, Your Honors, may I inform the Court that because the DAP has already fully served its purpose, the Administration’s economic managers have recommended its termination to the President. x x x."39
The Solicitor General then quickly confirmed the termination of the DAP as a program, and urged that its termination had already mooted the challenges to the DAP’s constitutionality, viz:
DAP as a program, no longer exists, thereby mooting these present cases brought to challenge its constitutionality. Any constitutional challenge should no longer be at the level of the program, which is now extinct, but at the level of its prior applications or the specific disbursements under the now defunct policy. We challenge the petitioners to pick and choose which among the 116 DAP projects they wish to nullify, the full details we will have provided by February 5. We urge this Court to be cautious in limiting the constitutional authority of the President and the Legislature to respond to the dynamic needs of the country and the evolving demands of governance, lest we end up straight jacketing our elected representatives in ways not consistent with our constitutional structure and democratic principles.40
A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value.41
The Court cannot agree that the termination of the DAP as a program was a supervening event that effectively mooted these consolidated cases. Verily, the Court had in the past exercised its power of judicial review despite the cases being rendered moot and academic by supervening events, like: (1) when there was a grave violation of the Constitution; (2) when the case involved a situation of exceptional character and was of paramount public interest; (3) when the constitutional issue raised required the formulation of controlling principles to guide the Bench, the Bar and the public; and (4) when the case was capable of repetition yet evading review.42
Assuming that the petitioners’ several submissions against the DAP were ultimately sustained by the Court here, these cases would definitely come under all the exceptions. Hence, the Court should not abstain from exercising its power of judicial review.
Did the petitioners have the legal standing to sue?
Legal standing, as a requisite for the exercise of judicial review, refers to "a right of appearance in a court of justice on a given question."43 The concept of legal standing, or locus standi, was particularly discussed in De Castro v. Judicial and Bar Council,44 where the Court said:
In public or constitutional litigations, the Court is often burdened with the determination of the locus standi of the petitioners due to the ever-present need to regulate the invocation of the intervention of the Court to correct any official action or policy in order to avoid obstructing the efficient functioning of public officials and offices involved in public service. It is required, therefore, that the petitioner must have a personal stake in the outcome of the controversy, for, as indicated in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:
The question on legal standing is whether such parties have "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Accordingly, it has been held that the interest of a person assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of.
It is true that as early as in 1937, in People v. Vera, the Court adopted the direct injury test for determining whether a petitioner in a public action had locus standi. There, the Court held that the person who would assail the validity of a statute must have "a personal and substantial interest in the case such that he has sustained, or will sustain direct injury as a result." Vera was followed in Custodio v. President of the Senate, Manila Race Horse Trainers’ Association v. De la Fuente, Anti-Chinese League of the Philippines v. Felix, and Pascual v. Secretary of Public Works.
Yet, the Court has also held that the requirement of locus standi, being a mere procedural technicality, can be waived by the Court in the exercise of its discretion. For instance, in 1949, in Araneta v. Dinglasan, the Court liberalized the approach when the cases had "transcendental importance." Some notable controversies whose petitioners did not pass the direct injury test were allowed to be treated in the same way as in Araneta v. Dinglasan.
In the 1975 decision in Aquino v. Commission on Elections, this Court decided to resolve the issues raised by the petition due to their "far reaching implications," even if the petitioner had no personality to file the suit. The liberal approach of Aquino v. Commission on Elections has been adopted in several notable cases, permitting ordinary citizens, legislators, and civic organizations to bring their suits involving the constitutionality or validity of laws, regulations, and rulings.
However, the assertion of a public right as a predicate for challenging a supposedly illegal or unconstitutional executive or legislative action rests on the theory that the petitioner represents the public in general. Although such petitioner may not be as adversely affected by the action complained against as are others, it is enough that he sufficiently demonstrates in his petition that he is entitled to protection or relief from the Court in the vindication of a public right.
Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to gain locus standi. That is not surprising, for even if the issue may appear to concern only the public in general, such capacities nonetheless equip the petitioner with adequate interest to sue. In David v. Macapagal-Arroyo, the Court aptly explains why:
Case law in most jurisdiction snow allows both "citizen" and "taxpayer" standing in public actions. The distinction was first laid down in Beauchamp v. Silk, where it was held that the plaintiff in a taxpayer’s suit is in a different category from the plaintiff in a citizen’s suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere instrument of the public concern. As held by the New York Supreme Court in People ex rel Case v. Collins: "In matter of mere public right, however…the people are the real parties…It is at least the right, if not the duty, of every citizen to interfere and see that a public offence be properly pursued and punished, and that a public grievance be remedied." With respect to taxpayer’s suits, Terr v. Jordan held that "the right of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be denied."45
The Court has cogently observed in Agan, Jr. v. Philippine International Air Terminals Co., Inc.46 that "[s]tanding is a peculiar concept in constitutional law because in some cases, suits are not brought by parties who have been personally injured by the operation of a law or any other government act but by concerned citizens, taxpayers or voters who actually sue in the public interest."
Except for PHILCONSA, a petitioner in G.R. No. 209164, the petitioners have invoked their capacities as taxpayers who, by averring that the issuance and implementation of the DAP and its relevant issuances involved the illegal disbursements of public funds, have an interest in preventing the further dissipation of public funds. The petitioners in G.R. No. 209287 (Araullo) and G.R. No. 209442 (Belgica) also assert their right as citizens to sue for the enforcement and observance of the constitutional limitations on the political branches of the Government.47
On its part, PHILCONSA simply reminds that the Court has long recognized its legal standing to bring cases upon constitutional issues.48 Luna, the petitioner in G.R. No. 209136, cites his additional capacity as a lawyer. The IBP, the petitioner in G.R. No. 209260, stands by "its avowed duty to work for the rule of law and of paramount importance of the question in this action, not to mention its civic duty as the official association of all lawyers in this country."49
Under their respective circumstances, each of the petitioners has established sufficient interest in the outcome of the controversy as to confer locus standi on each of them.
In addition, considering that the issues center on the extent of the power of the Chief Executive to disburse and allocate public funds, whether appropriated by Congress or not, these cases pose issues that are of transcendental importance to the entire Nation, the petitioners included. As such, the determination of such important issues call for the Court’s exercise of its broad and wise discretion "to waive the requirement and so remove the impediment to its addressing and resolving the serious constitutional questions raised."50
II.Substantive Issues
1.Overview of the Budget System
An understanding of the Budget System of the Philippines will aid the Court in properly appreciating and justly resolving the substantive issues.
a) Origin of the Budget System
The term "budget" originated from the Middle English word bouget that had derived from the Latin word bulga (which means bag or purse).51
In the Philippine setting, Commonwealth Act (CA) No. 246 (Budget Act) defined "budget" as the financial program of the National Government for a designated fiscal year, consisting of the statements of estimated receipts and expenditures for the fiscal year for which it was intended to be effective based on the results of operations during the preceding fiscal years. The term was given a different meaning under Republic Act No. 992 (Revised Budget Act) by describing the budget as the delineation of the services and products, or benefits that would accrue to the public together with the estimated unit cost of each type of service, product or benefit.52 For a forthright definition, budget should simply be identified as the financial plan of the Government,53 or "the master plan of government."54
The concept of budgeting has not been the product of recent economies. In reality, financing public goals and activities was an idea that existed from the creation of the State.55 To protect the people, the territory and sovereignty of the State, its government must perform vital functions that required public expenditures. At the beginning, enormous public expenditures were spent for war activities, preservation of peace and order, security, administration of justice, religion, and supply of limited goods and services.56 In order to finance those expenditures, the State raised revenues through taxes and impositions.57 Thus, budgeting became necessary to allocate public revenues for specific government functions.58 The State’s budgeting mechanism eventually developed through the years with the growing functions of its government and changes in its market economy.
The Philippine Budget System has been greatly influenced by western public financial institutions. This is because of the country’s past as a colony successively of Spain and the United States for a long period of time. Many aspects of the country’s public fiscal administration, including its Budget System, have been naturally patterned after the practices and experiences of the western public financial institutions. At any rate, the Philippine Budget System is presently guided by two principal objectives that are vital to the development of a progressive democratic government, namely: (1) to carry on all government activities under a comprehensive fiscal plan developed, authorized and executed in accordance with the
Constitution, prevailing statutes and the principles of sound public management; and (2) to provide for the periodic review and disclosure of the budgetary status of the Government in such detail so that persons entrusted by law with the responsibility as well as the enlightened citizenry can determine the adequacy of the budget actions taken, authorized or proposed, as well as the true financial position of the Government.59
b) Evolution of the Philippine Budget System
The budget process in the Philippines evolved from the early years of the American Regime up to the passage of the Jones Law in 1916. A Budget Office was created within the Department of Finance by the Jones Law to discharge the budgeting function, and was given the responsibility to assist in the preparation of an executive budget for submission to the Philippine Legislature.60
As early as under the 1935 Constitution, a budget policy and a budget procedure were established, and subsequently strengthened through the enactment of laws and executive acts.61 EO No. 25, issued by President Manuel L. Quezon on April 25, 1936, created the Budget Commission to serve as the agency that carried out the President’s responsibility of preparing the budget.62 CA No. 246, the first budget law, went into effect on January 1, 1938 and established the Philippine budget process. The law also provided a line-item budget as the framework of the Government’s budgeting system,63 with emphasis on the observance of a "balanced budget" to tie up proposed expenditures with existing revenues.
CA No. 246 governed the budget process until the passage on June 4, 1954 of Republic Act (RA) No. 992,whereby Congress introduced performance-budgeting to give importance to functions, projects and activities in terms of expected results.64 RA No. 992 also enhanced the role of the Budget Commission as the fiscal arm of the Government.65
The 1973 Constitution and various presidential decrees directed a series of budgetary reforms that culminated in the enactment of PD No. 1177 that President Marcos issued on July30, 1977, and of PD No. 1405, issued on June 11, 1978. The latter decree converted the Budget Commission into the Ministry of Budget, and gave its head the rank of a Cabinet member.
The Ministry of Budget was later renamed the Office of Budget and Management (OBM) under EO No. 711. The OBM became the DBM pursuant to EO No. 292 effective on November 24, 1989.
c) The Philippine Budget Cycle66
Four phases comprise the Philippine budget process, specifically: (1) Budget Preparation; (2) Budget Legislation; (3) Budget Execution; and (4) Accountability. Each phase is distinctly separate from the others but they overlap in the implementation of the budget during the budget year.
c.1.Budget Preparation67
The budget preparation phase is commenced through the issuance of a Budget Call by the DBM. The Budget Call contains budget parameters earlier set by the Development Budget Coordination Committee (DBCC) as well as policy guidelines and procedures to aid government agencies in the preparation and submission of their budget proposals. The Budget Call is of two kinds, namely: (1) a National Budget Call, which is addressed to all agencies, including state
universities and colleges; and (2) a Corporate Budget Call, which is addressed to all government-owned and -controlled corporations (GOCCs) and government financial institutions (GFIs).
Following the issuance of the Budget Call, the various departments and agencies submit their respective Agency Budget Proposals to the DBM. To boost citizen participation, the current administration has tasked the various departments and agencies to partner with civil society organizations and other citizen-stakeholders in the preparation of the Agency Budget Proposals, which proposals are then presented before a technical panel of the DBM in scheduled budget hearings wherein the various departments and agencies are given the opportunity to defend their budget proposals. DBM bureaus thereafter review the Agency Budget Proposals and come up with recommendations for the Executive Review Board, comprised by the DBM Secretary and the DBM’s senior officials. The discussions of the Executive Review Board cover the prioritization of programs and their corresponding support vis-à-vis the priority agenda of the National Government, and their implementation.
The DBM next consolidates the recommended agency budgets into the National Expenditure Program (NEP)and a Budget of Expenditures and Sources of Financing (BESF). The NEP provides the details of spending for each department and agency by program, activity or project (PAP), and is submitted in the form of a proposed GAA. The Details of Selected Programs and Projects is the more detailed disaggregation of key PAPs in the NEP, especially those in line with the National Government’s development plan. The Staffing Summary provides the staffing complement of each department and agency, including the number of positions and amounts allocated.
The NEP and BESF are thereafter presented by the DBM and the DBCC to the President and the Cabinet for further refinements or reprioritization. Once the NEP and the BESF are approved by the President and the Cabinet, the DBM prepares the budget documents for submission to Congress. The budget documents consist of: (1) the President’s Budget Message, through which the President explains the policy framework and budget priorities; (2) the BESF, mandated by Section 22, Article VII of the Constitution,68 which contains the macroeconomic assumptions, public sector context, breakdown of the expenditures and funding sources for the fiscal year and the two previous years; and (3) the NEP.
Public or government expenditures are generally classified into two categories, specifically: (1) capital expenditures or outlays; and (2) current operating expenditures. Capital expenditures are the expenses whose usefulness lasts for more than one year, and which add to the assets of the Government, including investments in the capital of government-owned or controlled corporations and their subsidiaries.69 Current operating expenditures are the purchases of goods and services in current consumption the benefit of which does not extend beyond the fiscal year.70 The two components of current expenditures are those for personal services (PS), and those for maintenance and other operating expenses(MOOE).
Public expenditures are also broadly grouped according to their functions into: (1) economic development expenditures (i.e., expenditures on agriculture and natural resources, transportation and communications, commerce and industry, and other economic development efforts);71 (2) social services or social development expenditures (i.e., government outlay on education, public health and medicare, labor and welfare and others);72 (3) general government or general public services expenditures (i.e., expenditures for the general government, legislative services, the administration of justice, and for pensions and gratuities);73 (4) national
defense expenditures (i.e., sub-divided into national security expenditures and expenditures for the maintenance of peace and order);74 and (5) public debt.75
Public expenditures may further be classified according to the nature of funds, i.e., general fund, special fund or bond fund.76
On the other hand, public revenues complement public expenditures and cover all income or receipts of the government treasury used to support government expenditures.77
Classical economist Adam Smith categorized public revenues based on two principal sources, stating: "The revenue which must defray…the necessary expenses of government may be drawn either, first from some fund which peculiarly belongs to the sovereign or commonwealth, and which is independent of the revenue of the people, or, secondly, from the revenue of the people."78 Adam Smith’s classification relied on the two aspects of the nature of the State: first, the State as a juristic person with an artificial personality, and, second, the State as a sovereign or entity possessing supreme power. Under the first aspect, the State could hold property and engage in trade, thereby deriving what is called its quasi private income or revenues, and which "peculiarly belonged to the sovereign." Under the second aspect, the State could collect by imposing charges on the revenues of its subjects in the form of taxes.79
In the Philippines, public revenues are generally derived from the following sources, to wit: (1) tax revenues(i.e., compulsory contributions to finance government activities); 80 (2) capital revenues(i.e., proceeds from sales of fixed capital assets or scrap thereof and public domain, and gains on such sales like sale of public lands, buildings and other structures, equipment, and other properties recorded as fixed assets); 81 (3) grants(i.e., voluntary contributions and aids given to the Government for its operation on specific purposes in the form of money and/or materials, and do not require any monetary commitment on the part of the recipient);82 (4) extraordinary income(i.e., repayment of loans and advances made by government corporations and local governments and the receipts and shares in income of the Banko Sentral ng Pilipinas, and other receipts);83 and (5) public borrowings(i.e., proceeds of repayable obligations generally with interest from domestic and foreign creditors of the Government in general, including the National Government and its political subdivisions).84
More specifically, public revenues are classified as follows:85
General Income1. Subsidy Income from National
Government2. Subsidy from Central Office3. Subsidy from Regional
Office/Staff Bureaus4. Income from Government
Services5. Income from Government
Business Operations6. Sales Revenue7. Rent Income8. Insurance Income
Specific Income1. Income Taxes2. Property Taxes3. Taxes on Goods and Services4. Taxes on International Trade and
Transactions5. Other Taxes 6.Fines and Penalties-Tax Revenue7. Other Specific Income
9. Dividend Income10. Interest Income11. Sale of Confiscated Goods and
Properties12. Foreign Exchange (FOREX)
Gains13. Miscellaneous Operating and
Service Income14. Fines and Penalties-Government
Services and Business Operations15. Income from Grants and
Donations
c.2. Budget Legislation86
The Budget Legislation Phase covers the period commencing from the time Congress receives the President’s Budget, which is inclusive of the NEPand the BESF, up to the President’s approval of the GAA. This phase is also known as the Budget Authorization Phase, and involves the significant participation of the Legislative through its deliberations.
Initially, the President’s Budget is assigned to the House of Representatives’ Appropriations Committee on First Reading. The Appropriations Committee and its various Sub-Committees schedule and conduct budget hearings to examine the PAPs of the departments and agencies. Thereafter, the House of Representatives drafts the General Appropriations Bill (GAB).87
The GABis sponsored, presented and defended by the House of Representatives’ Appropriations Committee and Sub-Committees in plenary session. As with other laws, the GAB is approved on Third Reading before the House of Representatives’ version is transmitted to the Senate.88
After transmission, the Senate conducts its own committee hearings on the GAB. To expedite proceedings, the Senate may conduct its committee hearings simultaneously with the House of Representatives’ deliberations. The Senate’s Finance Committee and its Sub-Committees may submit the proposed amendments to the GAB to the plenary of the Senate only after the House of Representatives has formally transmitted its version to the Senate. The Senate version of the GAB is likewise approved on Third Reading.89
The House of Representatives and the Senate then constitute a panel each to sit in the Bicameral Conference Committee for the purpose of discussing and harmonizing the conflicting provisions of their versions of the GAB. The "harmonized" version of the GAB is next presented to the President for approval.90 The President reviews the GAB, and prepares the Veto Message where budget items are subjected to direct veto,91 or are identified for conditional implementation.
If, by the end of any fiscal year, the Congress shall have failed to pass the GAB for the ensuing fiscal year, the GAA for the preceding fiscal year shall be deemed re-enacted and shall remain in force and effect until the GAB is passed by the Congress.92
c.3. Budget Execution93
With the GAA now in full force and effect, the next step is the implementation of the budget. The Budget Execution Phase is primarily the function of the DBM, which is tasked to perform the following procedures, namely: (1) to issue the programs and guidelines for the release of funds; (2) to prepare an Allotment and Cash Release Program; (3) to release allotments; and (4) to issue disbursement authorities.
The implementation of the GAA is directed by the guidelines issued by the DBM. Prior to this, the various departments and agencies are required to submit Budget Execution Documents(BED) to outline their plans and performance targets by laying down the physical and financial plan, the monthly cash program, the estimate of monthly income, and the list of obligations that are not yet due and demandable.
Thereafter, the DBM prepares an Allotment Release Program (ARP)and a Cash Release Program (CRP).The ARP sets a limit for allotments issued in general and to a specific agency. The CRP fixes the monthly, quarterly and annual disbursement levels.
Allotments, which authorize an agency to enter into obligations, are issued by the DBM. Allotments are lesser in scope than appropriations, in that the latter embrace the general legislative authority to spend. Allotments may be released in two forms – through a comprehensive Agency Budget Matrix (ABM),94 or, individually, by SARO.95
Armed with either the ABM or the SARO, agencies become authorized to incur obligations96 on behalf of the Government in order to implement their PAPs. Obligations may be incurred in various ways, like hiring of personnel, entering into contracts for the supply of goods and services, and using utilities.
In order to settle the obligations incurred by the agencies, the DBM issues a disbursement authority so that cash may be allocated in payment of the obligations. A cash or disbursement authority that is periodically issued is referred to as a Notice of Cash Allocation (NCA),97 which issuance is based upon an agency’s submission of its Monthly Cash Program and other required documents. The NCA specifies the maximum amount of cash that can be withdrawn from a government servicing bank for the period indicated. Apart from the NCA, the DBM may issue a Non-Cash Availment Authority(NCAA) to authorize non-cash disbursements, or a Cash Disbursement Ceiling(CDC) for departments with overseas operations to allow the use of income collected by their foreign posts for their operating requirements.
Actual disbursement or spending of government funds terminates the Budget Execution Phase and is usually accomplished through the Modified Disbursement Scheme under which disbursements chargeable against the National Treasury are coursed through the government servicing banks.
c.4. Accountability98
Accountability is a significant phase of the budget cycle because it ensures that the government funds have been effectively and efficiently utilized to achieve the State’s socio-economic goals. It also allows the DBM to assess the performance of agencies during the fiscal year for the purpose of implementing reforms and establishing new policies.
An agency’s accountability may be examined and evaluated through (1) performance targets and outcomes; (2) budget accountability reports; (3) review of agency performance; and (4) audit conducted by the Commission on Audit(COA).
2.
Nature of the DAP as a fiscal plan
a. DAP was a program designed topromote economic growth
Policy is always a part of every budget and fiscal decision of any Administration.99 The national budget the Executive prepares and presents to Congress represents the Administration’s "blueprint for public policy" and reflects the Government’s goals and strategies.100 As such, the national budget becomes a tangible representation of the programs of the Government in monetary terms, specifying therein the PAPs and services for which specific amounts of public funds are proposed and allocated.101 Embodied in every national budget is government spending.102
When he assumed office in the middle of 2010, President Aquino made efficiency and transparency in government spending a significant focus of his Administration. Yet, although such focus resulted in an improved fiscal deficit of 0.5% in the gross domestic product (GDP) from January to July of 2011, it also unfortunately decelerated government project implementation and payment schedules.103 The World Bank observed that the Philippines’ economic growth could be reduced, and potential growth could be weakened should the Government continue with its underspending and fail to address the large deficiencies in infrastructure.104 The economic situation prevailing in the middle of 2011 thus paved the way for the development and implementation of the DAP as a stimulus package intended to fast-track public spending and to push economic growth by investing on high-impact budgetary PAPs to be funded from the "savings" generated during the year as well as from unprogrammed funds.105 In that respect, the DAP was the product of "plain executive policy-making" to stimulate the economy by way of accelerated spending.106The Administration would thereby accelerate government spending by: (1) streamlining the implementation process through the clustering of infrastructure projects of the Department of Public Works and Highways (DPWH) and the Department of Education (DepEd),and (2) front loading PPP-related projects107 due for implementation in the following year.108
Did the stimulus package work?
The March 2012 report of the World Bank,109 released after the initial implementation of the DAP, revealed that the DAP was partially successful. The disbursements under the DAP contributed 1.3 percentage points to GDP growth by the fourth quarter of 2011.110 The continued implementation of the DAP strengthened growth by 11.8% year on year while infrastructure spending rebounded from a 29% contraction to a 34% growth as of September 2013.111
The DAP thus proved to be a demonstration that expenditure was a policy instrument that the Government could use to direct the economies towards growth and development.112 The Government, by spending on public infrastructure, would signify its commitment of ensuring profitability for prospective investors.113 The PAPs funded under the DAP were chosen for this reason based on their: (1) multiplier impact on the economy and infrastructure development; (2) beneficial effect on the poor; and (3) translation into disbursements.114
b. History of the implementation ofthe DAP, and sources of fundsunder the DAP
How the Administration’s economic managers conceptualized and developed the DAP, and finally presented it to the President remains unknown because the relevant documents appear to be scarce.
The earliest available document relating to the genesis of the DAP was the memorandum of October 12,2011 from Sec. Abad seeking the approval of the President to implement the proposed DAP. The memorandum, which contained a list of the funding sources for P72.11 billion and of the proposed priority projects to be funded,115 reads:
MEMORANDUM FOR THE PRESIDENT
x x x x
SUBJECT: FY 2011 PROPOSED DISBURSEMENT ACCELERATION PROGRAM (PROJECTS AND SOURCES OF FUNDS)
DATE: OCTOBER 12, 2011
Mr. President, this is to formally confirm your approval of the Disbursement Acceleration Program totaling P72.11 billion. We are already working with all the agencies concerned for the immediate execution of the projects therein.
A. Fund Sources for the Acceleration Program
Fund SourcesAmount
(In millionPhp)
Description ActionRequested
FY 2011UnreleasedPersonalServices (PS)Appropriations
30,000 Unreleased PersonnelServices (PS)appropriations whichwill lapse at the end ofFY 2011 but may bepooled as savings andrealigned for priorityprograms that requireimmediate funding
Declare assavings andapprove/authorize its usefor the 2011DisbursementAccelerationProgram
FY 2011UnreleasedAppropriations
482 Unreleasedappropriations (slowmoving projects andprograms fordiscontinuance)
FY 2010UnprogrammedFund
12,336 Supported by the GFIDividends
Approve andauthorize its usefor the 2011DisbursementAccelerationProgram
FY 2010CarryoverAppropriation
21,544 Unreleasedappropriations (slowmoving projects andprograms fordiscontinuance) andsavings from Zero-based BudgetingInitiative
With priorapproval fromthe President inNovember 2010to declare assavings and withauthority to usefor priorityprojects
FY 2011 Budgetitems forrealignment
7,748 FY 2011 AgencyBudget items that canbe realigned within theagency to fund new fastdisbursing projectsDPWH-3.981 BillionDA – 2.497 BillionDOT – 1.000 BillionDepEd – 270 Million
For information
TOTAL 72.110
B. Projects in the Disbursement Acceleration Program
(Descriptions of projects attached as Annex A)
GOCCs and GFIs
Agency/Project(SARO and NCA Release)
Allotment(in Million Php)
1. LRTA: Rehabilitation of LRT 1 and 2 1,868
2. NHA: 11,050
a. Resettlement of North Triangle residents toCamarin A7b. Housing for BFP/BJMPc. On-site development for families livingalong dangerousd. Relocation sites for informal settlersalong Iloilo River and its tributaries
450
50010,000
100
3. PHIL. HEART CENTER: Upgrading ofageing physical plant and medical equipment
357
4. CREDIT INFO CORP: Establishment ofcentralized credit information system
75
5. PIDS: purchase of land to relocate the PIDSoffice and building construction
100
6. HGC: Equity infusion for credit insuranceand mortgage guaranty operations of HGC
400
7. PHIC: Obligations incurred (premiumsubsidy for indigent families) in January-June2010, booked for payment in Jul[y] – Dec2010. The delay in payment is due to thedelay in the certification of the LGUcounterpart. Without it, the NG is obliged topay the full amount.
1,496
8. Philpost: Purchase of foreclosed property.Payment of Mandatory Obligations, (GSIS,PhilHealth, ECC), Franking Privilege
644
9. BSP: First equity infusion out of Php 40Bcapitalization under the BSP Law
10,000
10. PCMC: Capital and Equipment Renovation 280
11. LCOP:a. Pediatric Pulmonary Programb. Bio-regenerative Technology Program(Stem-Cell Research – subject to legalreview and presentation)
105
35
70
12. TIDCORP: NG Equity infusion 570
TOTAL 26,945
NGAs/LGUs
Agency/Project Allotment(SARO)
(In MillionPhp)
CashRequirement
(NCA)
13. DOF-BIR: NPSTARcentralization of dataprocessing and others (To besynchronized with GFMISactivities)
758
758
14. COA: IT infrastructureprogram and hiring ofadditional litigational experts
144
144
15. DND-PAF: On Base HousingFacilities and CommunicationEquipment
30
30
16. DA:a. Irrigation, FMRs andIntegrated Community Based Multi-SpeciesHatchery and AquasilviFarmingb. Mindanao RuralDevelopment Project
2,959
1,629
919
2,223
1,629
183
c. NIA Agno River IntegratedIrrigation Project 411 411
17. DAR:a. Agrarian ReformCommunities Project 2b. Landowners Compensation
1,293
1,293
1,293
1325,432
18. DBM: Conduct of NationalSurvey ofFarmers/Fisherfolks/Ips
625
625
19. DOJ: Operating requirementsof 50 investigation agents and15 state attorneys
11
11
20. DOT: Preservation of the CineCorregidor Complex 25 25
21. OPAPP: Activities for PeaceProcess (PAMANA- Projectdetails: budget breakdown,implementation plan, andconditions on fund release
attached as Annex B) 1,819 1,819
22. DOSTa. Establishment of NationalMeterological and ClimateCenterb. Enhancement of DopplerRadar Network for NationalWeather Watch, AccurateForecasting and Flood EarlyWarning
425
275
190
425
275
190
23. DOF-BOC: To settle theprincipal obligations withPDIC consistent with theagreement with the CISS andSGS
2,800
2,800
24. OEO-FDCP: Establishment ofthe National Film Archive andlocal cinematheques, and otherlocal activities
20
20
25. DPWH: Various infrastructureprojects 5,500 5,500
26. DepEd/ERDT/DOST: ThinClient Cloud ComputingProject
270
270
27. DOH: Hiring of nurses andmidwives 294 294
28. TESDA: Training Program inpartnership with BPO industryand other sectors
1,100
1,100
29. DILG: Performance ChallengeFund (People EmpoweredCommunity DrivenDevelopment with DSWD andNAPC)
250
50
30. ARMM: Comprehensive Peaceand Development Intervention 8,592 8,592
31. DOTC-MRT: Purchase ofadditional MRT cars 4,500 -
32. LGU Support Fund 6,500 6,500
33. Various Other Local Projects 6,500 6,500
34. Development Assistance to theProvince of Quezon 750 750
TOTAL 45,165 44,000
C. Summary
Fund SourcesIdentified for
Approval(In Million
Php)
Allotmentsfor Release
CashRequirements for
Release in FY2011
Total 72,110 72,110 70,895
GOCCs 26,895 26,895
NGAs/LGUs 45,165 44,000
For His Excellency’s Consideration
(Sgd.) FLORENCIO B. ABAD
[/] APPROVED
[ ] DISAPPROVED
(Sgd.) H.E. BENIGNO S. AQUINO, III
OCT 12, 2011
The memorandum of October 12, 2011 was followed by another memorandum for the President dated December 12, 2011116 requesting omnibus authority to consolidate the savings and unutilized balances for fiscal year 2011. Pertinent portions of the memorandum of December 12, 2011 read:
MEMORANDUM FOR THE PRESIDENT
x x x x
SUBJECT: Omnibus Authority to Consolidate Savings/Unutilized Balances and its Realignment
DATE: December 12, 2011
This is to respectfully request for the grant of Omnibus Authority to consolidate savings/unutilized balances in FY 2011 corresponding to completed or discontinued projects which may be pooled to fund additional projects or expenditures.
In addition, Mr. President, this measure will allow us to undertake projects even if their implementation carries over to 2012 without necessarily impacting on our budget deficit cap next year.
BACKGROUND
1.0 The DBM, during the course of performance reviews conducted on the agencies’ operations, particularly on the implementation of their projects/activities, including expenses incurred in undertaking the same, have identified savings out of the 2011 General Appropriations Act. Said savings correspond to completed or discontinued projects under certain departments/agencies which may be pooled, for the following:
1.1 to provide for new activities which have not been anticipated during preparation of the budget;
1.2 to augment additional requirements of on-going priority projects; and
1.3 to provide for deficiencies under the Special Purpose Funds, e.g., PDAF, Calamity Fund, Contingent Fund
1.4 to cover for the modifications of the original allotment class allocation as a result of on-going priority projects and implementation of new activities
2.0 x x x x
2.1 x x x
2.2 x x x
ON THE UTILIZATION OF POOLED SAVINGS
3.0 It may be recalled that the President approved our request for omnibus authority to pool savings/unutilized balances in FY 2010 last November 25, 2010.
4.0 It is understood that in the utilization of the pooled savings, the DBM shall secure the corresponding approval/confirmation of the President. Furthermore, it is assured that the proposed realignments shall be within the authorized Expenditure level.
5.0 Relative thereto, we have identified some expenditure items that may be sourced from the said pooled appropriations in FY 2010 that will expire on December 31, 2011 and appropriations in FY 2011 that may be declared as savings to fund additional expenditures.
5.1 The 2010 Continuing Appropriations (pooled savings) is proposed to be spent for the projects that we have identified to be immediate actual
disbursements considering that this same fund source will expire on December 31, 2011.
5.2 With respect to the proposed expenditure items to be funded from the FY 2011 Unreleased Appropriations, most of these are the same projects for which the DBM is directed by the Office of the President, thru the Executive Secretary, to source funds.
6.0 Among others, the following are such proposed additional projects that have been chosen given their multiplier impact on economy and infrastructure development, their beneficial effect on the poor, and their translation into disbursements. Please note that we have classified the list of proposed projects as follows:
7.0 x x x
FOR THE PRESIDENT’S APPROVAL
8.0 Foregoing considered, may we respectfully request for the President’s approval for the following:
8.1 Grant of omnibus authority to consolidate FY 2011 savings/unutilized balances and its realignment; and
8.2 The proposed additional projects identified for funding.
For His Excellency’s consideration and approval.
(Sgd.)
[/] APPROVED
[ ] DISAPPROVED
(Sgd.) H.E. BENIGNO S. AQUINO, III
DEC 21, 2011
Substantially identical requests for authority to pool savings and to fund proposed projects were contained in various other memoranda from Sec. Abad dated June 25, 2012,117 September 4, 2012,118 December 19, 2012,119 May 20, 2013,120 and September 25, 2013.121 The President apparently approved all the requests, withholding approval only of the proposed projects contained in the June 25, 2012 memorandum, as borne out by his marginal note therein to the effect that the proposed projects should still be "subject to further discussions."122
In order to implement the June25, 2012 memorandum, Sec. Abad issued NBC No. 541 (Adoption of Operational Efficiency Measure – Withdrawal of Agencies’ Unobligated Allotments as of June 30, 2012),123 reproduced herein as follows:
NATIONAL BUDGET CIRCULAR No. 541
July 18, 2012
TO: All Heads of Departments/Agencies/State Universities and Colleges and other Offices of the National Government, Budget and Planning Officers; Heads of Accounting Units and All Others Concerned
SUBJECT : Adoption of Operational Efficiency Measure – Withdrawal of Agencies’ Unobligated Allotments as of June 30, 2012
1.0 Rationale
The DBM, as mandated by Executive Order (EO) No. 292 (Administrative Code of 1987), periodically reviews and evaluates the departments/agencies’ efficiency and effectiveness in utilizing budgeted funds for the delivery of services and production of goods, consistent with the government priorities.
In the event that a measure is necessary to further improve the operational efficiency of the government, the President is authorized to suspend or stop further use of funds allotted for any agency or expenditure authorized in the General Appropriations Act. Withdrawal and pooling of unutilized allotment releases can be effected by DBM based on authority of the President, as mandated under Sections 38 and 39, Chapter 5, Book VI of EO 292.
For the first five months of 2012, the National Government has not met its spending targets. In order to accelerate spending and sustain the fiscal targets during the year, expenditure measures have to be implemented to optimize the utilization of available resources.
Departments/agencies have registered low spending levels, in terms of obligations and disbursements per initial review of their 2012 performance. To enhance agencies’ performance, the DBM conducts continuous consultation meetings and/or send call-up letters, requesting them to identify slow-moving programs/projects and the factors/issues affecting their performance (both pertaining to internal systems and those which are outside the agencies’ spheres of control). Also, they are asked to formulate strategies and improvement plans for the rest of 2012.
Notwithstanding these initiatives, some departments/agencies have continued to post low obligation levels as of end of first semester, thus resulting to substantial unobligated allotments.
In line with this, the President, per directive dated June 27, 2012 authorized the withdrawal of unobligated allotments of agencies with low levels of obligations as of June 30, 2012, both for continuing and current allotments. This measure will allow the maximum utilization of available allotments to fund and undertake other priority expenditures of the national government.
2.0 Purpose
2.1 To provide the conditions and parameters on the withdrawal of unobligated allotments of agencies as of June 30, 2012 to fund priority and/or fast-moving programs/projects of the national government;
2.2 To prescribe the reports and documents to be used as bases on the withdrawal of said unobligated allotments; and
2.3 To provide guidelines in the utilization or reallocation of the withdrawn allotments.
3.0 Coverage
3.1 These guidelines shall cover the withdrawal of unobligated allotments as of June 30, 2012 of all national government agencies (NGAs) charged against FY 2011 Continuing Appropriation (R.A. No.10147) and FY 2012 Current Appropriation (R.A. No. 10155), pertaining to:
3.1.1 Capital Outlays (CO);
3.1.2 Maintenance and Other Operating Expenses (MOOE) related to the implementation of programs and projects, as well as capitalized MOOE; and
3.1.3 Personal Services corresponding to unutilized pension benefits declared as savings by the agencies concerned based on their updated/validated list of pensioners.
3.2 The withdrawal of unobligated allotments may cover the identified programs, projects and activities of the departments/agencies reflected in the DBM list shown as Annex A or specific programs and projects as may be identified by the agencies.
4.0 Exemption
These guidelines shall not apply to the following:
4.1 NGAs
4.1.1 Constitutional Offices/Fiscal Autonomy Group, granted fiscal autonomy under the Philippine Constitution; and
4.1.2 State Universities and Colleges, adopting the Normative Funding allocation scheme i.e., distribution of a predetermined budget ceiling.
4.2 Fund Sources
4.2.1 Personal Services other than pension benefits;
4.2.2 MOOE items earmarked for specific purposes or subject to realignment conditions per General Provisions of the GAA:
• Confidential and Intelligence Fund;
• Savings from Traveling, Communication, Transportation and Delivery, Repair and Maintenance, Supplies and Materials and Utility which shall be used for the grant of Collective Negotiation Agreement incentive benefit;
• Savings from mandatory expenditures which can be realigned only in the last quarter after taking into consideration the agency’s full year requirements, i.e., Petroleum, Oil and Lubricants, Water, Illumination, Power Services, Telephone, other Communication Services and Rent.
4.2.3 Foreign-Assisted Projects (loan proceeds and peso counterpart);
4.2.4 Special Purpose Funds such as: E-Government Fund, International Commitments Fund, PAMANA, Priority Development Assistance Fund, Calamity Fund, Budgetary Support to GOCCs and Allocation to LGUs, among others;
4.2.5 Quick Response Funds; and
4.2.6 Automatic Appropriations i.e., Retirement Life Insurance Premium and Special Accounts in the General Fund.
5.0 Guidelines
5.1 National government agencies shall continue to undertake procurement activities notwithstanding the implementation of the policy of withdrawal of unobligated allotments until the end of the third quarter, FY 2012. Even without the allotments, the agency shall proceed in undertaking the procurement processes (i.e., procurement planning up to the conduct of bidding but short of awarding of contract) pursuant to GPPB Circular Nos. 02-2008 and 01-2009 and DBM Circular Letter No. 2010-9.
5.2 For the purpose of determining the amount of unobligated allotments that shall be withdrawn, all departments/agencies/operating units (OUs) shall submit to DBM not later than July 30, 2012, the following budget accountability reports as of June 30, 2012;
• Statement of Allotments, Obligations and Balances (SAOB);
• Financial Report of Operations (FRO); and
• Physical Report of Operations.
5.3 In the absence of the June 30, 2012 reports cited under item 5.2 of this Circular, the agency’s latest report available shall be used by DBM as basis for withdrawal of allotment. The DBM shall compute/approximate the agency’s obligation level as of June 30 to derive its unobligated allotments as of same period. Example: If the March 31 SAOB or FRO reflects actual obligations of P
800M then the June 30 obligation level shall approximate to P1,600 M (i.e., P800 M x 2 quarters).
5.4 All released allotments in FY 2011 charged against R.A. No. 10147 which remained unobligated as of June 30, 2012 shall be immediately considered for withdrawal. This policy is based on the following considerations:
5.4.1 The departments/agencies’ approved priority programs and projects are assumed to be implementation-ready and doable during the given fiscal year; and
5.4.2 The practice of having substantial carryover appropriations may imply that the agency has a slower-than-programmed implementation capacity or agency tends to implement projects within a two-year timeframe.
5.5. Consistent with the President’s directive, the DBM shall, based on evaluation of the reports cited above and results of consultations with the departments/agencies, withdraw the unobligated allotments as of June 30, 2012 through issuance of negative Special Allotment Release Orders (SAROs).
5.6 DBM shall prepare and submit to the President, a report on the magnitude of withdrawn allotments. The report shall highlight the agencies which failed to submit the June 30 reports required under this Circular.
5.7 The withdrawn allotments may be:
5.7.1 Reissued for the original programs and projects of the agencies/OUs concerned, from which the allotments were withdrawn;
5.7.2 Realigned to cover additional funding for other existing programs and projects of the agency/OU; or
5.7.3 Used to augment existing programs and projects of any agency and to fund priority programs and projects not considered in the 2012 budget but expected to be started or implemented during the current year.
5.8 For items 5.7.1 and 5.7.2 above, agencies/OUs concerned may submit to DBM a Special Budget Request (SBR), supported with the following:
5.8.1 Physical and Financial Plan (PFP);
5.8.2 Monthly Cash Program (MCP); and
5.8.3 Proof that the project/activity has started the procurement processes i.e., Proof of Posting and/or Advertisement of the Invitation to Bid.
5.9 The deadline for submission of request/s pertaining to these categories shall be until the end of the third quarter i.e., September 30, 2012. After said cut-off date, the withdrawn allotments shall be pooled and form part of the overall savings of the national government.
5.10 Utilization of the consolidated withdrawn allotments for other priority programs and projects as cited under item 5.7.3 of this Circular, shall be subject to approval of the President. Based on the approval of the President, DBM shall issue the SARO to cover the approved priority expenditures subject to submission by the agency/OU concerned of the SBR and supported with PFP and MCP.
5.11 It is understood that all releases to be made out of the withdrawn allotments (both 2011 and 2012 unobligated allotments) shall be within the approved Expenditure Program level of the national government for the current year. The SAROs to be issued shall properly disclose the appropriation source of the release to determine the extent of allotment validity, as follows:
• For charges under R.A. 10147 – allotments shall be valid up to December 31, 2012; and
• For charges under R.A. 10155 – allotments shall be valid up to December 31, 2013.
5.12 Timely compliance with the submission of existing BARs and other reportorial requirements is reiterated for monitoring purposes.
6.0 Effectivity
This circular shall take effect immediately.
(Sgd.) FLORENCIO B. ABADSecretary
As can be seen, NBC No. 541 specified that the unobligated allotments of all agencies and departments as of June 30, 2012 that were charged against the continuing appropriations for fiscal year 2011 and the 2012 GAA (R.A. No. 10155) were subject to withdrawal through the issuance of negative SAROs, but such allotments could be either: (1) reissued for the original PAPs of the concerned agencies from which they were withdrawn; or (2) realigned to cover additional funding for other existing PAPs of the concerned agencies; or (3) used to augment existing PAPs of any agency and to fund priority PAPs not considered in the 2012 budget but expected to be started or implemented in 2012. Financing the other priority PAPs was made subject to the approval of the President. Note here that NBC No. 541 used terminologies like "realignment" and "augmentation" in the application of the withdrawn unobligated allotments.
Taken together, all the issuances showed how the DAP was to be implemented and funded, that is — (1) by declaring "savings" coming from the various departments and agencies derived from pooling unobligated allotments and withdrawing unreleased appropriations; (2) releasing unprogrammed funds; and (3) applying the "savings" and unprogrammed funds to augment existing PAPs or to support other priority PAPs.
c. DAP was not an appropriationmeasure; hence, no appropriationlaw was required to adopt or toimplement it
Petitioners Syjuco, Luna, Villegas and PHILCONSA state that Congress did not enact a law to establish the DAP, or to authorize the disbursement and release of public funds to implement the DAP. Villegas, PHILCONSA, IBP, Araullo, and COURAGE observe that the appropriations funded under the DAP were not included in the 2011, 2012 and 2013 GAAs. To petitioners IBP, Araullo, and COURAGE, the DAP, being actually an appropriation that set aside public funds for public use, should require an enabling law for its validity. VACC maintains that the DAP, because it involved huge allocations that were separate and distinct from the GAAs, circumvented and duplicated the GAAs without congressional authorization and control.
The petitioners contend in unison that based on how it was developed and implemented the DAP violated the mandate of Section 29(1), Article VI of the 1987 Constitution that "[n]o money shall be paid out of the Treasury except in pursuance of an appropriation made by law."
The OSG posits, however, that no law was necessary for the adoption and implementation of the DAP because of its being neither a fund nor an appropriation, but a program or an administrative system of prioritizing spending; and that the adoption of the DAP was by virtue of the authority of the President as the Chief Executive to ensure that laws were faithfully executed.
We agree with the OSG’s position.
The DAP was a government policy or strategy designed to stimulate the economy through accelerated spending. In the context of the DAP’s adoption and implementation being a function pertaining to the Executive as the main actor during the Budget Execution Stage under its constitutional mandate to faithfully execute the laws, including the GAAs, Congress did not need to legislate to adopt or to implement the DAP. Congress could appropriate but would have nothing more to do during the Budget Execution Stage. Indeed, appropriation was the act by which Congress "designates a particular fund, or sets apart a specified portion of the public revenue or of the money in the public treasury, to be applied to some general object of governmental expenditure, or to some individual purchase or expense."124 As pointed out in Gonzales v. Raquiza:125 ‘"In a strict sense, appropriation has been defined ‘as nothing more than the legislative authorization prescribed by the Constitution that money may be paid out of the Treasury,’ while appropriation made by law refers to ‘the act of the legislature setting apart or assigning to a particular use a certain sum to be used in the payment of debt or dues from the State to its creditors.’"126
On the other hand, the President, in keeping with his duty to faithfully execute the laws, had sufficient discretion during the execution of the budget to adapt the budget to changes in the country’s economic situation.127 He could adopt a plan like the DAP for the purpose. He could pool the savings and identify the PAPs to be funded under the DAP. The pooling of savings pursuant to the DAP, and the identification of the PAPs to be funded under the DAP did not involve appropriation in the strict sense because the money had been already set apart from the public treasury by Congress through the GAAs. In such actions, the Executive did not usurp the power vested in Congress under Section 29(1), Article VI of the Constitution.
3.Unreleased appropriations and withdrawn
unobligated allotments under the DAPwere not savings, and the use of such
appropriations contravened Section 25(5),Article VI of the 1987 Constitution.
Notwithstanding our appreciation of the DAP as a plan or strategy validly adopted by the Executive to ramp up spending to accelerate economic growth, the challenges posed by the petitioners constrain us to dissect the mechanics of the actual execution of the DAP. The management and utilization of the public wealth inevitably demands a most careful scrutiny of whether the Executive’s implementation of the DAP was consistent with the Constitution, the relevant GAAs and other existing laws.
a. Although executive discretionand flexibility are necessary inthe execution of the budget, anytransfer of appropriated fundsshould conform to Section 25(5),Article VI of the Constitution
We begin this dissection by reiterating that Congress cannot anticipate all issues and needs that may come into play once the budget reaches its execution stage. Executive discretion is necessary at that stage to achieve a sound fiscal administration and assure effective budget implementation. The heads of offices, particularly the President, require flexibility in their operations under performance budgeting to enable them to make whatever adjustments are needed to meet established work goals under changing conditions.128 In particular, the power to transfer funds can give the President the flexibility to meet unforeseen events that may otherwise impede the efficient implementation of the PAPs set by Congress in the GAA.
Congress has traditionally allowed much flexibility to the President in allocating funds pursuant to the GAAs,129particularly when the funds are grouped to form lump sum accounts.130 It is assumed that the agencies of the Government enjoy more flexibility when the GAAs provide broader appropriation items.131 This flexibility comes in the form of policies that the Executive may adopt during the budget execution phase. The DAP – as a strategy to improve the country’s economic position – was one policy that the President decided to carry out in order to fulfill his mandate under the GAAs.
Denying to the Executive flexibility in the expenditure process would be counterproductive. In Presidential Spending Power,132 Prof. Louis Fisher, an American constitutional scholar whose specialties have included budget policy, has justified extending discretionary authority to the Executive thusly:
[T]he impulse to deny discretionary authority altogether should be resisted. There are many number of reasons why obligations and outlays by administrators may have to differ from appropriations by legislators. Appropriations are made many months, and sometimes years, in advance of expenditures. Congress acts with imperfect knowledge in trying to legislate in fields that are highly technical and constantly undergoing change. New circumstances will develop to make obsolete and mistaken the decisions reached by Congress at the appropriation stage. It is not practicable for Congress to adjust to each new development by passing separate
supplemental appropriation bills. Were Congress to control expenditures by confining administrators to narrow statutory details, it would perhaps protect its power of the purse but it would not protect the purse itself. The realities and complexities of public policy require executive discretion for the sound management of public funds.
x x x x
x x x The expenditure process, by its very nature, requires substantial discretion for administrators. They need to exercise judgment and take responsibility for their actions, but those actions ought to be directed toward executing congressional, not administrative policy. Let there be discretion, but channel it and use it to satisfy the programs and priorities established by Congress.
In contrast, by allowing to the heads of offices some power to transfer funds within their respective offices, the Constitution itself ensures the fiscal autonomy of their offices, and at the same time maintains the separation of powers among the three main branches of the Government. The Court has recognized this, and emphasized so in Bengzon v. Drilon,133 viz:
The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and constraints on the manner the independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy and violative not only of the express mandate of the Constitution but especially as regards the Supreme Court, of the independence and separation of powers upon which the entire fabric of our constitutional system is based.
In the case of the President, the power to transfer funds from one item to another within the Executive has not been the mere offshoot of established usage, but has emanated from law itself. It has existed since the time of the American Governors-General.134 Act No. 1902 (An Act authorizing the Governor-General to direct any unexpended balances of appropriations be returned to the general fund of the Insular Treasury and to transfer from the general fund moneys which have been returned thereto), passed on May 18, 1909 by the First Philippine Legislature,135 was the first enabling law that granted statutory authority to the President to transfer funds. The authority was without any limitation, for the Act explicitly empowered the Governor-General to transfer any unexpended balance of appropriations for any bureau or office to another, and to spend such balance as if it had originally been appropriated for that bureau or office.
From 1916 until 1920, the appropriations laws set a cap on the amounts of funds that could be transferred, thereby limiting the power to transfer funds. Only 10% of the amounts appropriated for contingent or miscellaneous expenses could be transferred to a bureau or office, and the transferred funds were to be used to cover deficiencies in the appropriations also for miscellaneous expenses of said bureau or office.
In 1921, the ceiling on the amounts of funds to be transferred from items under miscellaneous expenses to any other item of a certain bureau or office was removed.
During the Commonwealth period, the power of the President to transfer funds continued to be governed by the GAAs despite the enactment of the Constitution in 1935. It is notable that the 1935 Constitution did not include a provision on the power to transfer funds. At any rate, a shift
in the extent of the President’s power to transfer funds was again experienced during this era, with the President being given more flexibility in implementing the budget. The GAAs provided that the power to transfer all or portions of the appropriations in the Executive Department could be made in the "interest of the public, as the President may determine."136
In its time, the 1971 Constitutional Convention wanted to curtail the President’s seemingly unbounded discretion in transferring funds.137 Its Committee on the Budget and Appropriation proposed to prohibit the transfer of funds among the separate branches of the Government and the independent constitutional bodies, but to allow instead their respective heads to augment items of appropriations from savings in their respective budgets under certain limitations.138 The clear intention of the Convention was to further restrict, not to liberalize, the power to transfer appropriations.139 Thus, the Committee on the Budget and Appropriation initially considered setting stringent limitations on the power to augment, and suggested that the augmentation of an item of appropriation could be made "by not more than ten percent if the original item of appropriation to be augmented does not exceed one million pesos, or by not more than five percent if the original item of appropriation to be augmented exceeds one million pesos."140 But two members of the Committee objected to the P1,000,000.00 threshold, saying that the amount was arbitrary and might not be reasonable in the future. The Committee agreed to eliminate theP1,000,000.00 threshold, and settled on the ten percent limitation.141
In the end, the ten percent limitation was discarded during the plenary of the Convention, which adopted the following final version under Section 16, Article VIII of the 1973 Constitution, to wit:
(5) No law shall be passed authorizing any transfer of appropriations; however, the President, the Prime Minister, the Speaker, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may by law be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.
The 1973 Constitution explicitly and categorically prohibited the transfer of funds from one item to another, unless Congress enacted a law authorizing the President, the Prime Minister, the Speaker, the Chief Justice of the Supreme Court, and the heads of the Constitutional omissions to transfer funds for the purpose of augmenting any item from savings in another item in the GAA of their respective offices. The leeway was limited to augmentation only, and was further constricted by the condition that the funds to be transferred should come from savings from another item in the appropriation of the office.142
On July 30, 1977, President Marcos issued PD No. 1177, providing in its Section 44 that:
Section 44. Authority to Approve Fund Transfers. The President shall have the authority to transfer any fund appropriated for the different departments, bureaus, offices and agencies of the Executive Department which are included in the General Appropriations Act, to any program, project, or activity of any department, bureau or office included in the General Appropriations Act or approved after its enactment.
The President shall, likewise, have the authority to augment any appropriation of the Executive Department in the General Appropriations Act, from savings in the appropriations of another department, bureau, office or agency within the Executive Branch, pursuant to the provisions of Article VIII, Section 16 (5) of the Constitution.
In Demetria v. Alba, however, the Court struck down the first paragraph of Section 44 for contravening Section 16(5)of the 1973 Constitution, ruling:
Paragraph 1 of Section 44 of P.D. No. 1177 unduly over-extends the privilege granted under said Section 16. It empowers the President to indiscriminately transfer funds from one department, bureau, office or agency of the Executive Department to any program, project or activity of any department, bureau or office included in the General Appropriations Act or approved after its enactment, without regard as to whether or not the funds to be transferred are actually savings in the item from which the same are to be taken, or whether or not the transfer is for the purpose of augmenting the item to which said transfer is to be made. It does not only completely disregard the standards set in the fundamental law, thereby amounting to an undue delegation of legislative powers, but likewise goes beyond the tenor thereof. Indeed, such constitutional infirmities render the provision in question null and void.143
It is significant that Demetria was promulgated 25 days after the ratification by the people of the 1987 Constitution, whose Section 25(5) of Article VI is identical to Section 16(5), Article VIII of the 1973 Constitution, to wit:
Section 25. x x x
x x x x
5) No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.
x x x x
The foregoing history makes it evident that the Constitutional Commission included Section 25(5), supra, to keep a tight rein on the exercise of the power to transfer funds appropriated by Congress by the President and the other high officials of the Government named therein. The Court stated in Nazareth v. Villar:144
In the funding of current activities, projects, and programs, the general rule should still be that the budgetary amount contained in the appropriations bill is the extent Congress will determine as sufficient for the budgetary allocation for the proponent agency. The only exception is found in Section 25 (5), Article VI of the Constitution, by which the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions are authorized to transfer appropriations to augmentany item in the GAA for their respective offices from the savings in other items of their respective appropriations. The plain language of the constitutional restriction leaves no room for the petitioner’s posture, which we should now dispose of as untenable.
It bears emphasizing that the exception in favor of the high officials named in Section 25(5), Article VI of the Constitution limiting the authority to transfer savings only to augment another item in the GAA is strictly but reasonably construed as exclusive. As the Court has expounded in Lokin, Jr. v. Commission on Elections:
When the statute itself enumerates the exceptions to the application of the general rule, the exceptions are strictly but reasonably construed. The exceptions extend only as far as their language fairly warrants, and all doubts should be resolved in favor of the general provision rather than the exceptions. Where the general rule is established by a statute with exceptions, none but the enacting authority can curtail the former. Not even the courts may add to the latter by implication, and it is a rule that an express exception excludes all others, although it is always proper in determining the applicability of the rule to inquire whether, in a particular case, it accords with reason and justice.
The appropriate and natural office of the exception is to exempt something from the scope of the general words of a statute, which is otherwise within the scope and meaning of such general words. Consequently, the existence of an exception in a statute clarifies the intent that the statute shall apply to all cases not excepted. Exceptions are subject to the rule of strict construction; hence, any doubt will be resolved in favor of the general provision and against the exception. Indeed, the liberal construction of a statute will seem to require in many circumstances that the exception, by which the operation of the statute is limited or abridged, should receive a restricted construction.
Accordingly, we should interpret Section 25(5), supra, in the context of a limitation on the President’s discretion over the appropriations during the Budget Execution Phase.
b. Requisites for the valid transfer ofappropriated funds under Section25(5), Article VI of the 1987Constitution
The transfer of appropriated funds, to be valid under Section 25(5), supra, must be made upon a concurrence of the following requisites, namely:
(1) There is a law authorizing the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of the Constitutional Commissions to transfer funds within their respective offices;
(2) The funds to be transferred are savings generated from the appropriations for their respective offices; and (3) The purpose of the transfer is to augment an item in the general appropriations law for their respective offices.
b.1. First Requisite–GAAs of 2011 and2012 lacked valid provisions toauthorize transfers of funds underthe DAP; hence, transfers under theDAP were unconstitutional
Section 25(5), supra, not being a self-executing provision of the Constitution, must have an implementing law for it to be operative. That law, generally, is the GAA of a given fiscal year. To comply with the first requisite, the GAAs should expressly authorize the transfer of funds.
Did the GAAs expressly authorize the transfer of funds?
In the 2011 GAA, the provision that gave the President and the other high officials the authority to transfer funds was Section 59, as follows:
Section 59. Use of Savings. The President of the Philippines, the Senate President, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, the Heads of Constitutional Commissions enjoying fiscal autonomy, and the Ombudsman are hereby authorized to augment any item in this Act from savings in other items of their respective appropriations.
In the 2012 GAA, the empowering provision was Section 53, to wit:
Section 53. Use of Savings. The President of the Philippines, the Senate President, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, the Heads of Constitutional Commissions enjoying fiscal autonomy, and the Ombudsman are hereby authorized to augment any item in this Act from savings in other items of their respective appropriations.
In fact, the foregoing provisions of the 2011 and 2012 GAAs were cited by the DBM as justification for the use of savings under the DAP.145
A reading shows, however, that the aforequoted provisions of the GAAs of 2011 and 2012 were textually unfaithful to the Constitution for not carrying the phrase "for their respective offices" contained in Section 25(5), supra. The impact of the phrase "for their respective offices" was to authorize only transfers of funds within their offices (i.e., in the case of the President, the transfer was to an item of appropriation within the Executive). The provisions carried a different phrase ("to augment any item in this Act"), and the effect was that the 2011 and 2012 GAAs thereby literally allowed the transfer of funds from savings to augment any item in the GAAs even if the item belonged to an office outside the Executive. To that extent did the 2011 and 2012 GAAs contravene the Constitution. At the very least, the aforequoted provisions cannot be used to claim authority to transfer appropriations from the Executive to another branch, or to a constitutional commission.
Apparently realizing the problem, Congress inserted the omitted phrase in the counterpart provision in the 2013 GAA, to wit:
Section 52. Use of Savings. The President of the Philippines, the Senate President, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, the Heads of Constitutional Commissions enjoying fiscal autonomy, and the Ombudsman are hereby authorized to use savings in their respective appropriations to augment actual deficiencies incurred for the current year in any item of their respective appropriations.
Even had a valid law authorizing the transfer of funds pursuant to Section 25(5), supra, existed, there still remained two other requisites to be met, namely: that the source of funds to be transferred were savings from appropriations within the respective offices; and that the transfer must be for the purpose of augmenting an item of appropriation within the respective offices.
b.2. Second Requisite – There wereno savings from which fundscould be sourced for the DAPWere the funds used in the DAP actually savings?
The petitioners claim that the funds used in the DAP — the unreleased appropriations and withdrawn unobligated allotments — were not actual savings within the context of Section 25(5), supra, and the relevant provisions of the GAAs. Belgica argues that "savings" should be understood to refer to the excess money after the items that needed to be funded have been funded, or those that needed to be paid have been paid pursuant to the budget.146 The petitioners posit that there could be savings only when the PAPs for which the funds had been appropriated were actually implemented and completed, or finally discontinued or abandoned. They insist that savings could not be realized with certainty in the middle of the fiscal year; and that the funds for "slow-moving" PAPs could not be considered as savings because such PAPs had not actually been abandoned or discontinued yet.147 They stress that NBC No. 541, by allowing the withdrawn funds to be reissued to the "original program or project from which it was withdrawn," conceded that the PAPs from which the supposed savings were taken had not been completed, abandoned or discontinued.148
The OSG represents that "savings" were "appropriations balances," being the difference between the appropriation authorized by Congress and the actual amount allotted for the appropriation; that the definition of "savings" in the GAAs set only the parameters for determining when savings occurred; that it was still the President (as well as the other officers vested by the Constitution with the authority to augment) who ultimately determined when savings actually existed because savings could be determined only during the stage of budget execution; that the President must be given a wide discretion to accomplish his tasks; and that the withdrawn unobligated allotments were savings inasmuch as they were clearly "portions or balances of any programmed appropriation…free from any obligation or encumbrances which are (i) still available after the completion or final discontinuance or abandonment of the work, activity or purpose for which the appropriation is authorized…"
We partially find for the petitioners.
In ascertaining the meaning of savings, certain principles should be borne in mind. The first principle is that Congress wields the power of the purse. Congress decides how the budget will be spent; what PAPs to fund; and the amounts of money to be spent for each PAP. The second principle is that the Executive, as the department of the Government tasked to enforce the laws, is expected to faithfully execute the GAA and to spend the budget in accordance with the provisions of the GAA.149 The Executive is expected to faithfully implement the PAPs for which Congress allocated funds, and to limit the expenditures within the allocations, unless exigencies result to deficiencies for which augmentation is authorized, subject to the conditions provided by law. The third principle is that in making the President’s power to augment operative under the GAA, Congress recognizes the need for flexibility in budget execution. In so doing, Congress diminishes its own power of the purse, for it delegates a fraction of its power to the Executive. But Congress does not thereby allow the Executive to override its authority over the purse as to let the Executive exceed its delegated authority. And the fourth principle is that savings should be actual. "Actual" denotes something that is real or substantial, or something that exists presently in fact, as opposed to something that is merely theoretical, possible, potential or hypothetical.150
The foregoing principles caution us to construe savings strictly against expanding the scope of the power to augment. It is then indubitable that the power to augment was to be used only when the purpose for which the funds had been allocated were already satisfied, or the need for such funds had ceased to exist, for only then could savings be properly realized. This interpretation prevents the Executive from unduly transgressing Congress’ power of the purse.
The definition of "savings" in the GAAs, particularly for 2011, 2012 and 2013, reflected this interpretation and made it operational, viz:
Savings refer to portions or balances of any programmed appropriation in this Act free from any obligation or encumbrance which are: (i) still available after the completion or final discontinuance or abandonment of the work, activity or purpose for which the appropriation is authorized; (ii) from appropriations balances arising from unpaid compensation and related costs pertaining to vacant positions and leaves of absence without pay; and (iii) from appropriations balances realized from the implementation of measures resulting in improved systems and efficiencies and thus enabled agencies to meet and deliver the required or planned targets, programs and services approved in this Act at a lesser cost.
The three instances listed in the GAAs’ aforequoted definition were a sure indication that savings could be generated only upon the purpose of the appropriation being fulfilled, or upon the need for the appropriation being no longer existent.
The phrase "free from any obligation or encumbrance" in the definition of savings in the GAAs conveyed the notion that the appropriation was at that stage when the appropriation was already obligated and the appropriation was already released. This interpretation was reinforced by the enumeration of the three instances for savings to arise, which showed that the appropriation referred to had reached the agency level. It could not be otherwise, considering that only when the appropriation had reached the agency level could it be determined whether (a) the PAP for which the appropriation had been authorized was completed, finally discontinued, or abandoned; or (b) there were vacant positions and leaves of absence without pay; or (c) the required or planned targets, programs and services were realized at a lesser cost because of the implementation of measures resulting in improved systems and efficiencies.
The DBM declares that part of the savings brought under the DAP came from "pooling of unreleased appropriations such as unreleased Personnel Services appropriations which will lapse at the end of the year, unreleased appropriations of slow moving projects and discontinued projects per Zero-Based Budgeting findings."
The declaration of the DBM by itself does not state the clear legal basis for the treatment of unreleased or unalloted appropriations as savings.
The fact alone that the appropriations are unreleased or unalloted is a mere description of the status of the items as unalloted or unreleased. They have not yet ripened into categories of items from which savings can be generated. Appropriations have been considered "released" if there has already been an allotment or authorization to incur obligations and disbursement authority. This means that the DBM has issued either an ABM (for those not needing clearance), or a SARO (for those needing clearance), and consequently an NCA, NCAA or CDC, as the case may be. Appropriations remain unreleased, for instance, because of noncompliance with documentary requirements (like the Special Budget Request), or simply because of the unavailability of funds. But the appropriations do not actually reach the agencies to which they were allocated under the GAAs, and have remained with the DBM technically speaking. Ergo, unreleased appropriations refer to appropriations with allotments but without disbursement authority.
For us to consider unreleased appropriations as savings, unless these met the statutory definition of savings, would seriously undercut the congressional power of the purse, because
such appropriations had not even reached and been used by the agency concerned vis-à-vis the PAPs for which Congress had allocated them. However, if an agency has unfilled positions in its plantilla and did not receive an allotment and NCA for such vacancies, appropriations for such positions, although unreleased, may already constitute savings for that agency under the second instance.
Unobligated allotments, on the other hand, were encompassed by the first part of the definition of "savings" in the GAA, that is, as "portions or balances of any programmed appropriation in this Act free from any obligation or encumbrance." But the first part of the definition was further qualified by the three enumerated instances of when savings would be realized. As such, unobligated allotments could not be indiscriminately declared as savings without first determining whether any of the three instances existed. This signified that the DBM’s withdrawal of unobligated allotments had disregarded the definition of savings under the GAAs.
Justice Carpio has validly observed in his Separate Concurring Opinion that MOOE appropriations are deemed divided into twelve monthly allocations within the fiscal year; hence, savings could be generated monthly from the excess or unused MOOE appropriations other than the Mandatory Expenditures and Expenditures for Business-type Activities because of the physical impossibility to obligate and spend such funds as MOOE for a period that already lapsed. Following this observation, MOOE for future months are not savings and cannot be transferred.
The DBM’s Memorandum for the President dated June 25, 2012 (which became the basis of NBC No. 541) stated:
ON THE AUTHORITY TO WITHDRAW UNOBLIGATED ALLOTMENTS
5.0 The DBM, during the course of performance reviews conducted on the agencies’ operations, particularly on the implementation of their projects/activities, including expenses incurred in undertaking the same, have been continuously calling the attention of all National Government agencies (NGAs) with low levels of obligations as of end of the first quarter to speedup the implementation of their programs and projects in the second quarter.
6.0 Said reminders were made in a series of consultation meetings with the concerned agencies and with call-up letters sent.
7.0 Despite said reminders and the availability of funds at the department’s disposal, the level of financial performance of some departments registered below program, with the targeted obligations/disbursements for the first semester still not being met.
8.0 In order to maximize the use of the available allotment, all unobligated balances as of June 30, 2012, both for continuing and current allotments shall be withdrawn and pooled to fund fast moving programs/projects.
9.0 It may be emphasized that the allotments to be withdrawn will be based on the list of slow moving projects to be identified by the agencies and their catch up plans to be evaluated by the DBM.
It is apparent from the foregoing text that the withdrawal of unobligated allotments would be based on whether the allotments pertained to slow-moving projects, or not. However, NBC No. 541 did not set in clear terms the criteria for the withdrawal of unobligated allotments, viz:
3.1. These guidelines shall cover the withdrawal of unobligated allotments as of June 30, 2012 ofall national government agencies (NGAs) charged against FY 2011 Continuing Appropriation (R.A. No. 10147) and FY 2012 Current Appropriation (R.A. No. 10155), pertaining to:
3.1.1 Capital Outlays (CO);
3.1.2 Maintenance and Other Operating Expenses (MOOE) related to the implementation of programs and projects, as well as capitalized MOOE; and
3.1.3 Personal Services corresponding to unutilized pension benefits declared as savings by the agencies concerned based on their undated/validated list of pensioners.
A perusal of its various provisions reveals that NBC No. 541 targeted the "withdrawal of unobligated allotments of agencies with low levels of obligations"151 "to fund priority and/or fast-moving programs/projects."152 But the fact that the withdrawn allotments could be "[r]eissued for the original programs and projects of the agencies/OUs concerned, from which the allotments were withdrawn"153 supported the conclusion that the PAPs had not yet been finally discontinued or abandoned. Thus, the purpose for which the withdrawn funds had been appropriated was not yet fulfilled, or did not yet cease to exist, rendering the declaration of the funds as savings impossible.
Worse, NBC No. 541 immediately considered for withdrawal all released allotments in 2011 charged against the 2011 GAA that had remained unobligated based on the following considerations, to wit:
5.4.1 The departments/agencies’ approved priority programs and projects are assumed to be implementation-ready and doable during the given fiscal year; and
5.4.2 The practice of having substantial carryover appropriations may imply that the agency has a slower-than-programmed implementation capacity or agency tends to implement projects within a two-year timeframe.
Such withdrawals pursuant to NBC No. 541, the circular that affected the unobligated allotments for continuing and current appropriations as of June 30, 2012, disregarded the 2-year period of availability of the appropriations for MOOE and capital outlay extended under Section 65, General Provisions of the 2011 GAA, viz:
Section 65. Availability of Appropriations. — Appropriations for MOOE and capital outlays authorized in this Act shall be available for release and obligation for the purpose specified, and under the same special provisions applicable thereto, for a period extending to one fiscal year after the end of the year in which such items were appropriated: PROVIDED, That appropriations for MOOE and capital outlays under R.A. No. 9970 shall be made available up to the end of FY 2011: PROVIDED, FURTHER, That a report on these releases and obligations
shall be submitted to the Senate Committee on Finance and the House Committee on Appropriations.
and Section 63 General Provisions of the 2012 GAA, viz:
Section 63. Availability of Appropriations. — Appropriations for MOOE and capital outlays authorized in this Act shall be available for release and obligation for the purpose specified, and under the same special provisions applicable thereto, for a period extending to one fiscal year after the end of the year in which such items were appropriated: PROVIDED, That a report on these releases and obligations shall be submitted to the Senate Committee on Finance and the House Committee on Appropriations, either in printed form or by way of electronic document.154
Thus, another alleged area of constitutional infirmity was that the DAP and its relevant issuances shortened the period of availability of the appropriations for MOOE and capital outlays.
Congress provided a one-year period of availability of the funds for all allotment classes in the 2013 GAA (R.A. No. 10352), to wit:
Section 63. Availability of Appropriations.— All appropriations authorized in this Act shall be available for release and obligation for the purposes specified, and under the same special provisions applicable thereto, until the end of FY 2013: PROVIDED, That a report on these releases and obligations shall be submitted to the Senate Committee on Finance and House Committee on Appropriations, either in printed form or by way of electronic document.
Yet, in his memorandum for the President dated May 20, 2013, Sec. Abad sought omnibus authority to consolidate savings and unutilized balances to fund the DAP on a quarterly basis, viz:
7.0 If the level of financial performance of some department will register below program, even with the availability of funds at their disposal, the targeted obligations/disbursements for each quarter will not be met. It is important to note that these funds will lapse at the end of the fiscal year if these remain unobligated.
8.0 To maximize the use of the available allotment, all unobligated balances at the end of every quarter, both for continuing and current allotments shall be withdrawn and pooled to fund fast moving programs/projects.
9.0 It may be emphasized that the allotments to be withdrawn will be based on the list of slow moving projects to be identified by the agencies and their catch up plans to be evaluated by the DBM.
The validity period of the affected appropriations, already given the brief Lifes pan of one year, was further shortened to only a quarter of a year under the DBM’s memorandum dated May 20, 2013.
The petitioners accuse the respondents of forcing the generation of savings in order to have a larger fund available for discretionary spending. They aver that the respondents, by withdrawing unobligated allotments in the middle of the fiscal year, in effect deprived funding for PAPs with existing appropriations under the GAAs.155
The respondents belie the accusation, insisting that the unobligated allotments were being withdrawn upon the instance of the implementing agencies based on their own assessment that they could not obligate those allotments pursuant to the President’s directive for them to spend their appropriations as quickly as they could in order to ramp up the economy.156
We agree with the petitioners.
Contrary to the respondents’ insistence, the withdrawals were upon the initiative of the DBM itself. The text of NBC No. 541 bears this out, to wit:
5.2 For the purpose of determining the amount of unobligated allotments that shall be withdrawn, all departments/agencies/operating units (OUs) shall submit to DBM not later than July 30, 2012, the following budget accountability reports as of June 30, 2012;
• Statement of Allotments, Obligation and Balances (SAOB);
• Financial Report of Operations (FRO); and
• Physical Report of Operations.
5.3 In the absence of the June 30, 2012 reports cited under item 5.2 of this Circular, the agency’s latest report available shall be used by DBM as basis for withdrawal of allotment. The DBM shall compute/approximate the agency’s obligation level as of June 30 to derive its unobligated allotments as of same period. Example: If the March 31 SAOB or FRO reflects actual obligations of P 800M then the June 30 obligation level shall approximate to P1,600 M (i.e., P800 M x 2 quarters).
The petitioners assert that no law had authorized the withdrawal and transfer of unobligated allotments and the pooling of unreleased appropriations; and that the unbridled withdrawal of unobligated allotments and the retention of appropriated funds were akin to the impoundment of appropriations that could be allowed only in case of "unmanageable national government budget deficit" under the GAAs,157 thus violating the provisions of the GAAs of 2011, 2012 and 2013 prohibiting the retention or deduction of allotments.158
In contrast, the respondents emphasize that NBC No. 541 adopted a spending, not saving, policy as a last-ditch effort of the Executive to push agencies into actually spending their appropriations; that such policy did not amount to an impoundment scheme, because impoundment referred to the decision of the Executive to refuse to spend funds for political or ideological reasons; and that the withdrawal of allotments under NBC No. 541 was made pursuant to Section 38, Chapter 5, Book VI of the Administrative Code, by which the President was granted the authority to suspend or otherwise stop further expenditure of funds allotted to any agency whenever in his judgment the public interest so required.
The assertions of the petitioners are upheld. The withdrawal and transfer of unobligated allotments and the pooling of unreleased appropriations were invalid for being bereft of legal support. Nonetheless, such withdrawal of unobligated allotments and the retention of appropriated funds cannot be considered as impoundment.
According to Philippine Constitution Association v. Enriquez:159 "Impoundment refers to a refusal by the President, for whatever reason, to spend funds made available by Congress. It is the
failure to spend or obligate budget authority of any type." Impoundment under the GAA is understood to mean the retention or deduction of appropriations. The 2011 GAA authorized impoundment only in case of unmanageable National Government budget deficit, to wit:
Section 66. Prohibition Against Impoundment of Appropriations. No appropriations authorized under this Act shall be impounded through retention or deduction, unless in accordance with the rules and regulations to be issued by the DBM: PROVIDED, That all the funds appropriated for the purposes, programs, projects and activities authorized under this Act, except those covered under the Unprogrammed Fund, shall be released pursuant to Section 33 (3), Chapter 5, Book VI of E.O. No. 292.
Section 67. Unmanageable National Government Budget Deficit. Retention or deduction of appropriations authorized in this Act shall be effected only in cases where there is an unmanageable national government budget deficit.
Unmanageable national government budget deficit as used in this section shall be construed to mean that (i) the actual national government budget deficit has exceeded the quarterly budget deficit targets consistent with the full-year target deficit as indicated in the FY 2011 Budget of
Expenditures and Sources of Financing submitted by the President and approved by Congress pursuant to Section 22, Article VII of the Constitution, or (ii) there are clear economic indications of an impending occurrence of such condition, as determined by the Development Budget Coordinating Committee and approved by the President.
The 2012 and 2013 GAAs contained similar provisions.
The withdrawal of unobligated allotments under the DAP should not be regarded as impoundment because it entailed only the transfer of funds, not the retention or deduction of appropriations.
Nor could Section 68 of the 2011 GAA (and the similar provisions of the 2012 and 2013 GAAs) be applicable. They uniformly stated:
Section 68. Prohibition Against Retention/Deduction of Allotment. Fund releases from appropriations provided in this Act shall be transmitted intact or in full to the office or agency concerned. No retention or deduction as reserves or overhead shall be made, except as authorized by law, or upon direction of the President of the Philippines. The COA shall ensure compliance with this provision to the extent that sub-allotments by agencies to their subordinate offices are in conformity with the release documents issued by the DBM.
The provision obviously pertained to the retention or deduction of allotments upon their release from the DBM, which was a different matter altogether. The Court should not expand the meaning of the provision by applying it to the withdrawal of allotments.
The respondents rely on Section 38, Chapter 5, Book VI of the Administrative Code of 1987 to justify the withdrawal of unobligated allotments. But the provision authorized only the suspension or stoppage of further expenditures, not the withdrawal of unobligated allotments, to wit:
Section 38. Suspension of Expenditure of Appropriations.- Except as otherwise provided in the General Appropriations Act and whenever in his judgment the public interest so requires, the President, upon notice to the head of office concerned, is authorized to suspend or otherwise stop further expenditure of funds allotted for any agency, or any other expenditure authorized in the General Appropriations Act, except for personal services appropriations used for permanent officials and employees.
Moreover, the DBM did not suspend or stop further expenditures in accordance with Section 38, supra, but instead transferred the funds to other PAPs.
It is relevant to remind at this juncture that the balances of appropriations that remained unexpended at the end of the fiscal year were to be reverted to the General Fund.1âwphi1 This was the mandate of Section 28, Chapter IV, Book VI of the Administrative Code, to wit:
Section 28. Reversion of Unexpended Balances of Appropriations, Continuing Appropriations.- Unexpended balances of appropriations authorized in the General Appropriation Act shall revert to the unappropriated surplus of the General Fund at the end of the fiscal year and shall not thereafter be available for expenditure except by subsequent legislative enactment: Provided, that appropriations for capital outlays shall remain valid until fully spent or reverted: provided, further, that continuing appropriations for current operating expenditures may be specifically recommended and approved as such in support of projects whose effective implementation calls for multi-year expenditure commitments: provided, finally, that the President may authorize the use of savings realized by an agency during given year to meet non-recurring expenditures in a subsequent year.
The balances of continuing appropriations shall be reviewed as part of the annual budget preparation process and the preparation process and the President may approve upon recommendation of the Secretary, the reversion of funds no longer needed in connection with the activities funded by said continuing appropriations.
The Executive could not circumvent this provision by declaring unreleased appropriations and unobligated allotments as savings prior to the end of the fiscal year.
b.3. Third Requisite – No funds fromsavings could be transferred underthe DAP to augment deficient itemsnot provided in the GAA
The third requisite for a valid transfer of funds is that the purpose of the transfer should be "to augment an item in the general appropriations law for the respective offices." The term "augment" means to enlarge or increase in size, amount, or degree.160
The GAAs for 2011, 2012 and 2013 set as a condition for augmentation that the appropriation for the PAP item to be augmented must be deficient, to wit: –
x x x Augmentation implies the existence in this Act of a program, activity, or project with an appropriation, which upon implementation, or subsequent evaluation of needed resources, is determined to be deficient. In no case shall a non-existent program, activity, or project, be funded by augmentation from savings or by the use of appropriations otherwise authorized in this Act.
In other words, an appropriation for any PAP must first be determined to be deficient before it could be augmented from savings. Note is taken of the fact that the 2013 GAA already made this quite clear, thus:
Section 52. Use of Savings. The President of the Philippines, the Senate President, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, the Heads of Constitutional Commissions enjoying fiscal autonomy, and the Ombudsman are hereby authorized to use savings in their respective appropriations to augment actual deficiencies incurred for the current year in any item of their respective appropriations.
As of 2013, a total of P144.4 billion worth of PAPs were implemented through the DAP.161
Of this amount P82.5 billion were released in 2011 and P54.8 billion in 2012.162 Sec. Abad has reported that 9% of the total DAP releases were applied to the PAPs identified by the legislators.163
The petitioners disagree, however, and insist that the DAP supported the following PAPs that had not been covered with appropriations in the respective GAAs, namely:
(i) P1.5 billion for the Cordillera People’s Liberation Army;
(ii) P1.8 billion for the Moro National Liberation Front;
(iii) P700 million for assistance to Quezon Province;164
(iv) P50 million to P100 (million) each to certain senators;165
(v) P10 billion for the relocation of families living along dangerous zones under the National Housing Authority;
(vi) P10 billion and P20 billion equity infusion under the Bangko Sentral;
(vii) P5.4 billion landowners’ compensation under the Department of Agrarian Reform;
(viii) P8.6 billion for the ARMM comprehensive peace and development program;
(ix) P6.5 billion augmentation of LGU internal revenue allotments
(x) P5 billion for crucial projects like tourism road construction under the Department of Tourism and the Department of Public Works and Highways;
(xi) P1.8 billion for the DAR-DPWH Tulay ng Pangulo;
(xii) P1.96 billion for the DOH-DPWH rehabilitation of regional health units; and
(xiii) P4 billion for the DepEd-PPP school infrastructure projects.166
In refutation, the OSG argues that a total of 116 DAP-financed PAPs were implemented, had appropriation covers, and could properly be accounted for because the funds were released
following and pursuant to the standard practices adopted by the DBM.167 In support of its argument, the OSG has submitted seven evidence packets containing memoranda, SAROs, and other pertinent documents relative to the implementation and fund transfers under the DAP.168
Upon careful review of the documents contained in the seven evidence packets, we conclude that the "savings" pooled under the DAP were allocated to PAPs that were not covered by any appropriations in the pertinent GAAs.
For example, the SARO issued on December 22, 2011 for the highly vaunted Disaster Risk, Exposure, Assessment and Mitigation (DREAM) project under the Department of Science and Technology (DOST) covered the amount ofP1.6 Billion,169 broken down as follows:
APPROPRIATIONCODE
PARTICULARS AMOUNTAUTHORIZED
A.03.a.01.a Generation of new knowledge and technologies and research capability building in priority areas identified as strategic to National DevelopmentPersonnel ServicesMaintenance and Other Operating Expenses Capital Outlays
P 43,504,0241,164,517,589
391,978,387P 1,600,000,000
the pertinent provision of the 2011 GAA (R.A. No. 10147) showed that Congress had appropriated onlyP537,910,000 for MOOE, but nothing for personnel services and capital outlays, to wit:
PersonnelServices
Maintenanceand OtherOperating
Expenditures
CapitalOutlays
TOTAL
III. Operations
a. Funding Assistance to Scienceand Technology Activities
177,406,000 1,887,365,000 49,090,000 2,113,861,000
1. Central Office 1,554,238,000 1,554,238,000
a. Generation of newknowledge andtechnologies and researchcapability building inpriority areas identified asstrategic to National
537,910,000 537,910,000
Development
Aside from this transfer under the DAP to the DREAM project exceeding by almost 300% the appropriation by Congress for the program Generation of new knowledge and technologies and research capability building in priority areas identified as strategic to National Development, the Executive allotted funds for personnel services and capital outlays. The Executive thereby substituted its will to that of Congress. Worse, the Executive had not earlier proposed any amount for personnel services and capital outlays in the NEP that became the basis of the 2011 GAA.170
It is worth stressing in this connection that the failure of the GAAs to set aside any amounts for an expense category sufficiently indicated that Congress purposely did not see fit to fund, much less implement, the PAP concerned. This indication becomes clearer when even the President himself did not recommend in the NEP to fund the PAP. The consequence was that any PAP requiring expenditure that did not receive any appropriation under the GAAs could only be a new PAP, any funding for which would go beyond the authority laid down by Congress in enacting the GAAs. That happened in some instances under the DAP.
In relation to the December 22, 2011 SARO issued to the Philippine Council for Industry, Energy and Emerging Technology Research and Development (DOST-PCIEETRD)171 for Establishment of the Advanced Failure Analysis Laboratory, which reads:
APPROPRIATIONCODE
PARTICULARS AMOUNTAUTHORIZED
A.02.a
Development, integration and coordination of the National Research System for Industry, Energy and Emerging Technology and Related FieldsCapital Outlays P 300,000,000
the appropriation code and the particulars appearing in the SARO did not correspond to the program specified in the GAA, whose particulars were Research and Management Services(inclusive of the following activities: (1) Technological and Economic Assessment for Industry, Energy and Utilities; (2) Dissemination of Science and Technology Information; and (3) Management of PCIERD Information System for Industry, Energy and Utilities. Even assuming that Development, integration and coordination of the National Research System for Industry, Energy and Emerging Technology and Related Fields– the particulars stated in the SARO – could fall under the broad program description of Research and Management Services– as appearing in the SARO, it would nonetheless remain a new activity by reason of its not being specifically stated in the GAA. As such, the DBM, sans legislative authorization, could not validly fund and implement such PAP under the DAP.
In defending the disbursements, however, the OSG contends that the Executive enjoyed sound discretion in implementing the budget given the generality in the language and the broad policy objectives identified under the GAAs;172 and that the President enjoyed unlimited authority to spend the initial appropriations under his authority to declare and utilize savings,173 and in keeping with his duty to faithfully execute the laws.
Although the OSG rightly contends that the Executive was authorized to spend in line with its mandate to faithfully execute the laws (which included the GAAs), such authority did not translate to unfettered discretion that allowed the President to substitute his own will for that of Congress. He was still required to remain faithful to the provisions of the GAAs, given that his power to spend pursuant to the GAAs was but a delegation to him from Congress. Verily, the power to spend the public wealth resided in Congress, not in the Executive.174 Moreover, leaving the spending power of the Executive unrestricted would threaten to undo the principle of separation of powers.175
Congress acts as the guardian of the public treasury in faithful discharge of its power of the purse whenever it deliberates and acts on the budget proposal submitted by the Executive.176 Its power of the purse is touted as the very foundation of its institutional strength,177 and underpins "all other legislative decisions and regulating the balance of influence between the legislative and executive branches of government."178 Such enormous power encompasses the capacity to generate money for the Government, to appropriate public funds, and to spend the money.179 Pertinently, when it exercises its power of the purse, Congress wields control by specifying the PAPs for which public money should be spent.
It is the President who proposes the budget but it is Congress that has the final say on matters of appropriations.180For this purpose, appropriation involves two governing principles, namely: (1) "a Principle of the Public Fisc, asserting that all monies received from whatever source by any part of the government are public funds;" and (2) "a Principle of Appropriations Control, prohibiting expenditure of any public money without legislative authorization."181To conform with the governing principles, the Executive cannot circumvent the prohibition by Congress of an expenditure for a PAP by resorting to either public or private funds.182 Nor could the Executive transfer appropriated funds resulting in an increase in the budget for one PAP, for by so doing the appropriation for another PAP is necessarily decreased. The terms of both appropriations will thereby be violated.
b.4 Third Requisite – Cross-borderaugmentations from savings wereprohibited by the Constitution
By providing that the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the Heads of the Constitutional Commissions may be authorized to augment any item in the GAA "for their respective offices," Section 25(5), supra, has delineated borders between their offices, such that funds appropriated for one office are prohibited from crossing over to another office even in the guise of augmentation of a deficient item or items. Thus, we call such transfers of funds cross-border transfers or cross-border augmentations.
To be sure, the phrase "respective offices" used in Section 25(5), supra, refers to the entire Executive, with respect to the President; the Senate, with respect to the Senate President; the House of Representatives, with respect to the Speaker; the Judiciary, with respect to the Chief Justice; the Constitutional Commissions, with respect to their respective Chairpersons.
Did any cross-border transfers or augmentations transpire?
During the oral arguments on January 28, 2014, Sec. Abad admitted making some cross-border augmentations, to wit:
JUSTICE BERSAMIN:
Alright, the whole time that you have been Secretary of Department of Budget and Management, did the Executive Department ever redirect any part of savings of the National Government under your control cross border to another department?
SECRETARY ABAD:
Well, in the Memos that we submitted to you, such an instance, Your Honor
JUSTICE BERSAMIN:
Can you tell me two instances? I don’t recall having read your material.
SECRETARY ABAD:
Well, the first instance had to do with a request from the House of Representatives. They started building their e-library in 2010 and they had a budget for about 207 Million but they lack about 43 Million to complete its 250 Million requirements. Prior to that, the COA, in an audit observation informed the Speaker that they had to continue with that construction otherwise the whole building, as well as the equipments therein may suffer from serious deterioration. And at that time, since the budget of the House of Representatives was not enough to complete 250 Million, they wrote to the President requesting for an augmentation of that particular item, which was granted, Your Honor. The second instance in the Memos is a request from the Commission on Audit. At the time they were pushing very strongly the good governance programs of the government and therefore, part of that is a requirement to conduct audits as well as review financial reports of many agencies. And in the performance of that function, the Commission on Audit needed information technology equipment as well as hire consultants and litigators to help them with their audit work and for that they requested funds from the Executive and the President saw that it was important for the Commission to be provided with those IT equipments and litigators and consultants and the request was granted, Your Honor.
JUSTICE BERSAMIN:
These cross border examples, cross border augmentations were not supported by appropriations…
SECRETARY ABAD:
They were, we were augmenting existing items within their… (interrupted)
JUSTICE BERSAMIN:
No, appropriations before you augmented because this is a cross border and the tenor or text of the Constitution is quite clear as far as I am concerned. It says here, "The power to augment may only be made to increase any item in the General Appropriations Law for their respective offices." Did you not feel constricted by this provision?
SECRETARY ABAD:
Well, as the Constitution provides, the prohibition we felt was on the transfer of appropriations, Your Honor. What we thought we did was to transfer savings which was needed by the Commission to address deficiency in an existing item in both the Commission as well as in the House of Representatives; that’s how we saw…(interrupted)
JUSTICE BERSAMIN:
So your position as Secretary of Budget is that you could do that?
SECRETARY ABAD:
In an extreme instances because…(interrupted)
JUSTICE BERSAMIN:
No, no, in all instances, extreme or not extreme, you could do that, that’s your feeling.
SECRETARY ABAD:
Well, in that particular situation when the request was made by the Commission and the House of Representatives, we felt that we needed to respond because we felt…(interrupted).183
The records show, indeed, that funds amounting to P143,700,000.00 and P250,000,000.00 were transferred under the DAP respectively to the COA184 and the House of Representatives.185 Those transfers of funds, which constituted cross-border augmentations for being from the Executive to the COA and the House of Representatives, are graphed as follows:186
OFFICE PURPOSE DATERELEASED
AMOUNT(In thousand pesos)
ReserveImposed
Releases
Commission onAudit
IT Infrastructure Program and hiring of additional litigation experts
11/11/11 143,700
Congress –House ofRepresentatives
Completion of the construction of the Legislative Library and Archives Building/Congressional e-library
07/23/12 207,034(Savings of HOR)
250,000
The respondents further stated in their memorandum that the President "made available" to the "Commission on Elections the savings of his department upon [its] request for funds…"187 This was another instance of a cross-border augmentation.
The respondents justified all the cross-border transfers thusly:
99. The Constitution does not prevent the President from transferring savings of his department to another department upon the latter’s request, provided it is the recipient department that uses such funds to augment its own appropriation. In such a case, the President merely gives the other department access to public funds but he cannot dictate how they shall be applied by that department whose fiscal autonomy is guaranteed by the Constitution.188
In the oral arguments held on February 18, 2014, Justice Vicente V. Mendoza, representing Congress, announced a different characterization of the cross-border transfers of funds as in the nature of "aid" instead of "augmentation," viz:
HONORABLE MENDOZA:
The cross-border transfers, if Your Honors please, is not an application of the DAP. What were these cross-border transfers? They are transfers of savings as defined in the various General Appropriations Act. So, that makes it similar to the DAP, the use of savings. There was a cross-border which appears to be in violation of Section 25, paragraph 5 of Article VI, in the sense that the border was crossed. But never has it been claimed that the purpose was to augment a deficient item in another department of the government or agency of the government. The cross-border transfers, if Your Honors please, were in the nature of [aid] rather than augmentations. Here is a government entity separate and independent from the Executive Department solely in need of public funds. The President is there 24 hours a day, 7 days a week. He’s in charge of the whole operation although six or seven heads of government offices are given the power to augment. Only the President stationed there and in effect in-charge and has the responsibility for the failure of any part of the government. You have election, for one reason or another, the money is not enough to hold election. There would be chaos if no money is given as an aid, not to augment, but as an aid to a department like COA. The President is responsible in a way that the other heads, given the power to augment, are not. So, he cannot very well allow this, if Your Honor please.189
JUSTICE LEONEN:
May I move to another point, maybe just briefly. I am curious that the position now, I think, of government is that some transfers of savings is now considered to be, if I’m not mistaken, aid not augmentation. Am I correct in my hearing of your argument?
HONORABLE MENDOZA:
That’s our submission, if Your Honor, please.
JUSTICE LEONEN:
May I know, Justice, where can we situate this in the text of the Constitution? Where do we actually derive the concepts that transfers of appropriation from one branch to the other or what happened in DAP can be considered a said? What particular text in the Constitution can we situate this?
HONORABLE MENDOZA:
There is no particular provision or statutory provision for that matter, if Your Honor please. It is drawn from the fact that the Executive is the executive in-charge of the success of the government.
JUSTICE LEONEN:
So, the residual powers labelled in Marcos v. Manglapus would be the basis for this theory of the government?
HONORABLE MENDOZA:
Yes, if Your Honor, please.
JUSTICE LEONEN:
A while ago, Justice Carpio mentioned that the remedy is might be to go to Congress. That there are opportunities and there have been opportunities of the President to actually go to Congress and ask for supplemental budgets?
HONORABLE MENDOZA:
If there is time to do that, I would say yes.
JUSTICE LEONEN:
So, the theory of aid rather than augmentation applies in extra-ordinary situation?
HONORABLE MENDOZA:
Very extra-ordinary situations.
JUSTICE LEONEN:
But Counsel, this would be new doctrine, in case?
HONORABLE MENDOZA:
Yes, if Your Honor please.190
Regardless of the variant characterizations of the cross-border transfers of funds, the plain text of Section 25(5), supra, disallowing cross border transfers was disobeyed. Cross-border transfers, whether as augmentation, or as aid, were prohibited under Section 25(5), supra.
4.Sourcing the DAP from unprogrammed
funds despite the original revenue targetsnot having been exceeded was invalid
Funding under the DAP were also sourced from unprogrammed funds provided in the GAAs for 2011, 2012,and 2013. The respondents stress, however, that the unprogrammed funds were not brought under the DAP as savings, but as separate sources of funds; and that, consequently, the release and use of unprogrammed funds were not subject to the restrictions under Section 25(5), supra.
The documents contained in the Evidence Packets by the OSG have confirmed that the unprogrammed funds were treated as separate sources of funds. Even so, the release and use of the unprogrammed funds were still subject to restrictions, for, to start with, the GAAs precisely specified the instances when the unprogrammed funds could be released and the purposes for which they could be used.
The petitioners point out that a condition for the release of the unprogrammed funds was that the revenue collections must exceed revenue targets; and that the release of the unprogrammed funds was illegal because such condition was not met.191
The respondents disagree, holding that the release and use of the unprogrammed funds under the DAP were in accordance with the pertinent provisions of the GAAs. In particular, the DBM avers that the unprogrammed funds could be availed of when any of the following three instances occur, to wit: (1) the revenue collections exceeded the original revenue targets proposed in the BESFs submitted by the President to Congress; (2) new revenues were collected or realized from sources not originally considered in the BESFs; or(3) newly-approved loans for foreign assisted projects were secured, or when conditions were triggered for other sources of funds, such as perfected loan agreements for foreign-assisted projects.192 This view of the DBM was adopted by all the respondents in their Consolidated Comment.193
The BESFs for 2011, 2012 and 2013 uniformly defined "unprogrammed appropriations" as appropriations that provided standby authority to incur additional agency obligations for priority PAPs when revenue collections exceeded targets, and when additional foreign funds are generated.194 Contrary to the DBM’s averment that there were three instances when unprogrammed funds could be released, the BESFs envisioned only two instances. The third mentioned by the DBM – the collection of new revenues from sources not originally considered in the BESFs – was not included. This meant that the collection of additional revenues from new sources did not warrant the release of the unprogrammed funds. Hence, even if the revenues not considered in the BESFs were collected or generated, the basic condition that the revenue collections should exceed the revenue targets must still be complied with in order to justify the release of the unprogrammed funds.
The view that there were only two instances when the unprogrammed funds could be released was bolstered by the following texts of the Special Provisions of the 2011 and 2012 GAAs, to wit:
2011 GAA
1. Release of Fund. The amounts authorized herein shall be released only when the revenue collections exceed the original revenue targets submitted by the President of the Philippines to Congress pursuant to Section 22, Article VII of the Constitution, including savings generated from programmed appropriations for the year: PROVIDED, That collections arising from sources not considered in the aforesaid original revenue targets may be used to cover releases from appropriations in this Fund: PROVIDED, FURTHER, That in case of newly approved loans for
foreign-assisted projects, the existence of a perfected loan agreement for the purpose shall be sufficient basis for the issuance of a SARO covering the loan proceeds: PROVIDED, FURTHERMORE, That if there are savings generated from the programmed appropriations for the first two quarters of the year, the DBM may, subject to the approval of the President, release the pertinent appropriations under the Unprogrammed Fund corresponding to only fifty percent (50%) of the said savings net of revenue shortfall: PROVIDED, FINALLY, That the release of the balance of the total savings from programmed appropriations for the year shall be subject to fiscal programming and approval of the President.
2012 GAA
1. Release of the Fund. The amounts authorized herein shall be released only when the revenue collections exceed the original revenue targets submitted by the President of the Philippines to Congress pursuant to Section 22, Article VII of the Constitution: PROVIDED, That collections arising from sources not considered in the aforesaid original revenue targets may be used to cover releases from appropriations in this Fund: PROVIDED, FURTHER, That in case of newly approved loans for foreign-assisted projects, the existence of a perfected loan agreement for the purpose shall be sufficient basis for the issuance of a SARO covering the loan proceeds.
As can be noted, the provisos in both provisions to the effect that "collections arising from sources not considered in the aforesaid original revenue targets may be used to cover releases from appropriations in this Fund" gave the authority to use such additional revenues for appropriations funded from the unprogrammed funds. They did not at all waive compliance with the basic requirement that revenue collections must still exceed the original revenue targets.
In contrast, the texts of the provisos with regard to additional revenues generated from newly-approved foreign loans were clear to the effect that the perfected loan agreement would be in itself "sufficient basis" for the issuance of a SARO to release the funds but only to the extent of the amount of the loan. In such instance, the revenue collections need not exceed the revenue targets to warrant the release of the loan proceeds, and the mere perfection of the loan agreement would suffice.
It can be inferred from the foregoing that under these provisions of the GAAs the additional revenues from sources not considered in the BESFs must be taken into account in determining if the revenue collections exceeded the revenue targets. The text of the relevant provision of the 2013 GAA, which was substantially similar to those of the GAAs for 2011 and 2012, already made this explicit, thus:
1. Release of the Fund. The amounts authorized herein shall be released only when the revenue collections exceed the original revenue targets submitted by the President of the Philippines to Congress pursuant to Section 22, Article VII of the Constitution, including collections arising from sources not considered in the aforesaid original revenue target, as certified by the BTr: PROVIDED, That in case of newly approved loans for foreign-assisted projects, the existence of a perfected loan agreement for the purpose shall be sufficient basis for the issuance of a SARO covering the loan proceeds.
Consequently, that there were additional revenues from sources not considered in the revenue target would not be enough. The total revenue collections must still exceed the original revenue
targets to justify the release of the unprogrammed funds (other than those from newly-approved foreign loans).
The present controversy on the unprogrammed funds was rooted in the correct interpretation of the phrase "revenue collections should exceed the original revenue targets." The petitioners take the phrase to mean that the total revenue collections must exceed the total revenue target stated in the BESF, but the respondents understand the phrase to refer only to the collections for each source of revenue as enumerated in the BESF, with the condition being deemed complied with once the revenue collections from a particular source already exceeded the stated target.
The BESF provided for the following sources of revenue, with the corresponding revenue target stated for each source of revenue, to wit:
TAX REVENUES
Taxes on Net Income and ProfitsTaxes on PropertyTaxes on Domestic Goods and Services
General Sales, Turnover or VATSelected Excises on Goods
Selected Taxes on ServicesTaxes on the Use of Goods or Property or Permission to Perform ActivitiesOther TaxesTaxes on International Trade and Transactions
NON-TAX REVENUES
Fees and ChargesBTR Income
Government ServicesInterest on NG DepositsInterest on Advances to Government CorporationsIncome from Investments
Interest on Bond Holdings
Guarantee FeeGain on Foreign ExchangeNG Income Collected by BTr
Dividends on StocksNG Share from Airport Terminal FeeNG Share from PAGCOR IncomeNG Share from MIAA Profit
PrivatizationForeign Grants
Thus, when the Court required the respondents to submit a certification from the Bureau of Treasury (BTr) to the effect that the revenue collections had exceeded the original revenue targets,195 they complied by submitting certifications from the BTr and Department of Finance (DOF) pertaining to only one identified source of revenue – the dividends from the shares of stock held by the Government in government-owned and controlled corporations.
To justify the release of the unprogrammed funds for 2011, the OSG presented the certification dated March 4, 2011 issued by DOF Undersecretary Gil S. Beltran, as follows:
This is to certify that under the Budget for Expenditures and Sources of Financing for 2011, the programmed income from dividends from shares of stock in government-owned and controlled corporations is 5.5 billion.
This is to certify further that based on the records of the Bureau of Treasury, the National Government has recorded dividend income amounting to P23.8 billion as of 31 January 2011.196
For 2012, the OSG submitted the certification dated April 26, 2012 issued by National Treasurer Roberto B. Tan, viz:
This is to certify that the actual dividend collections remitted to the National Government for the period January to March 2012 amounted to P19.419 billion compared to the full year program of P5.5 billion for 2012.197
And, finally, for 2013, the OSG presented the certification dated July 3, 2013 issued by National Treasurer Rosalia V. De Leon, to wit:
This is to certify that the actual dividend collections remitted to the National Government for the period January to May 2013 amounted to P12.438 billion compared to the full year program of P10.0198 billion for 2013.
Moreover, the National Government accounted for the sale of the right to build and operate the NAIA expressway amounting to P11.0 billion in June 2013.199
The certifications reflected that by collecting dividends amounting to P23.8 billion in 2011, P19.419 billion in 2012, and P12.438 billion in 2013 the BTr had exceeded only the P5.5 billion in target revenues in the form of dividends from stocks in each of 2011 and 2012, and only the P10 billion in target revenues in the form of dividends from stocks in 2013.
However, the requirement that revenue collections exceed the original revenue targets was to be construed in light of the purpose for which the unprogrammed funds were incorporated in the GAAs as standby appropriations to support additional expenditures for certain priority PAPs should the revenue collections exceed the resource targets assumed in the budget or when additional foreign project loan proceeds were realized. The unprogrammed funds were included in the GAAs to provide ready cover so as not to delay the implementation of the PAPs should new or additional revenue sources be realized during the year.200 Given the tenor of the certifications, the unprogrammed funds were thus not yet supported by the corresponding resources.201
The revenue targets stated in the BESF were intended to address the funding requirements of the proposed programmed appropriations. In contrast, the unprogrammed funds, as standby appropriations, were to be released only when there were revenues in excess of what the programmed appropriations required. As such, the revenue targets should be considered as a whole, not individually; otherwise, we would be dealing with artificial revenue surpluses. The requirement that revenue collections must exceed revenue target should be understood to mean that the revenue collections must exceed the total of the revenue targets stated in the BESF. Moreover, to release the unprogrammed funds simply because there was an excess revenue as to one source of revenue would be an unsound fiscal management measure because it would disregard the budget plan and foster budget deficits, in contravention of the Government’s surplus budget policy.202
We cannot, therefore, subscribe to the respondents’ view.
5.Equal protection, checks and balances,
and public accountability challenges
The DAP is further challenged as violative of the Equal Protection Clause, the system of checks and balances, and the principle of public accountability.
With respect to the challenge against the DAP under the Equal Protection Clause,203 Luna argues that the implementation of the DAP was "unfair as it [was] selective" because the funds released under the DAP was not made available to all the legislators, with some of them refusing to avail themselves of the DAP funds, and others being unaware of the availability of such funds. Thus, the DAP practised "undue favoritism" in favor of select legislators in contravention of the Equal Protection Clause.
Similarly, COURAGE contends that the DAP violated the Equal Protection Clause because no reasonable classification was used in distributing the funds under the DAP; and that the Senators who supposedly availed themselves of said funds were differently treated as to the amounts they respectively received.
Anent the petitioners’ theory that the DAP violated the system of checks and balances, Luna submits that the grant of the funds under the DAP to some legislators forced their silence about the issues and anomalies surrounding the DAP. Meanwhile, Belgica stresses that the DAP, by allowing the legislators to identify PAPs, authorized them to take part in the implementation and execution of the GAAs, a function that exclusively belonged to the Executive; that such situation constituted undue and unjustified legislative encroachment in the functions of the Executive; and that the President arrogated unto himself the power of appropriation vested in Congress because NBC No. 541 authorized the use of the funds under the DAP for PAPs not considered in the 2012 budget.
Finally, the petitioners insist that the DAP was repugnant to the principle of public accountability enshrined in the Constitution,204 because the legislators relinquished the power of appropriation to the Executive, and exhibited a reluctance to inquire into the legality of the DAP.
The OSG counters the challenges, stating that the supposed discrimination in the release of funds under the DAP could be raised only by the affected Members of Congress themselves, and if the challenge based on the violation of the Equal Protection Clause was really against the
constitutionality of the DAP, the arguments of the petitioners should be directed to the entitlement of the legislators to the funds, not to the proposition that all of the legislators should have been given such entitlement.
The challenge based on the contravention of the Equal Protection Clause, which focuses on the release of funds under the DAP to legislators, lacks factual and legal basis. The allegations about Senators and Congressmen being unaware of the existence and implementation of the DAP, and about some of them having refused to accept such funds were unsupported with relevant data. Also, the claim that the Executive discriminated against some legislators on the ground alone of their receiving less than the others could not of itself warrant a finding of contravention of the Equal Protection Clause. The denial of equal protection of any law should be an issue to be raised only by parties who supposedly suffer it, and, in these cases, such parties would be the few legislators claimed to have been discriminated against in the releases of funds under the DAP. The reason for the requirement is that only such affected legislators could properly and fully bring to the fore when and how the denial of equal protection occurred, and explain why there was a denial in their situation. The requirement was not met here. Consequently, the Court was not put in the position to determine if there was a denial of equal protection. To have the Court do so despite the inadequacy of the showing of factual and legal support would be to compel it to speculate, and the outcome would not do justice to those for whose supposed benefit the claim of denial of equal protection has been made.
The argument that the release of funds under the DAP effectively stayed the hands of the legislators from conducting congressional inquiries into the legality and propriety of the DAP is speculative. That deficiency eliminated any need to consider and resolve the argument, for it is fundamental that speculation would not support any proper judicial determination of an issue simply because nothing concrete can thereby be gained. In order to sustain their constitutional challenges against official acts of the Government, the petitioners must discharge the basic burden of proving that the constitutional infirmities actually existed.205 Simply put, guesswork and speculation cannot overcome the presumption of the constitutionality of the assailed executive act.
We do not need to discuss whether or not the DAP and its implementation through the various circulars and memoranda of the DBM transgressed the system of checks and balances in place in our constitutional system. Our earlier expositions on the DAP and its implementing issuances infringing the doctrine of separation of powers effectively addressed this particular concern.
Anent the principle of public accountability being transgressed because the adoption and implementation of the DAP constituted an assumption by the Executive of Congress’ power of appropriation, we have already held that the DAP and its implementing issuances were policies and acts that the Executive could properly adopt and do in the execution of the GAAs to the extent that they sought to implement strategies to ramp up or accelerate the economy of the country.
6.Doctrine of operative fact was applicable
After declaring the DAP and its implementing issuances constitutionally infirm, we must now deal with the consequences of the declaration.
Article 7 of the Civil Code provides:
Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary.
When the courts declared a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution.
A legislative or executive act that is declared void for being unconstitutional cannot give rise to any right or obligation.206 However, the generality of the rule makes us ponder whether rigidly applying the rule may at times be impracticable or wasteful. Should we not recognize the need to except from the rigid application of the rule the instances in which the void law or executive act produced an almost irreversible result?
The need is answered by the doctrine of operative fact. The doctrine, definitely not a novel one, has been exhaustively explained in De Agbayani v. Philippine National Bank:207
The decision now on appeal reflects the orthodox view that an unconstitutional act, for that matter an executive order or a municipal ordinance likewise suffering from that infirmity, cannot be the source of any legal rights or duties. Nor can it justify any official act taken under it. Its repugnancy to the fundamental law once judicially declared results in its being to all intents and purposes a mere scrap of paper. As the new Civil Code puts it: ‘When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern.’ Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws of the Constitution. It is understandable why it should be so, the Constitution being supreme and paramount. Any legislative or executive act contrary to its terms cannot survive.
Such a view has support in logic and possesses the merit of simplicity. It may not however be sufficiently realistic. It does not admit of doubt that prior to the declaration of nullity such challenged legislative or executive act must have been in force and had to be complied with. This is so as until after the judiciary, in an appropriate case, declares its invalidity, it is entitled to obedience and respect. Parties may have acted under it and may have changed their positions. What could be more fitting than that in a subsequent litigation regard be had to what has been done while such legislative or executive act was in operation and presumed to be valid in all respects. It is now accepted as a doctrine that prior to its being nullified, its existence as a fact must be reckoned with. This is merely to reflect awareness that precisely because the judiciary is the governmental organ which has the final say on whether or not a legislative or executive measure is valid, a period of time may have elapsed before it can exercise the power of judicial review that may lead to a declaration of nullity. It would be to deprive the law of its quality of fairness and justice then, if there be no recognition of what had transpired prior to such adjudication.
In the language of an American Supreme Court decision: ‘The actual existence of a statute, prior to such a determination [of unconstitutionality], is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, with respect to particular relations, individual and corporate, and particular conduct, private and official.’"
The doctrine of operative fact recognizes the existence of the law or executive act prior to the determination of its unconstitutionality as an operative fact that produced consequences that cannot always be erased, ignored or disregarded. In short, it nullifies the void law or executive act but sustains its effects. It provides an exception to the general rule that a void or unconstitutional law produces no effect.208 But its use must be subjected to great scrutiny and circumspection, and it cannot be invoked to validate an unconstitutional law or executive act, but is resorted to only as a matter of equity and fair play.209 It applies only to cases where extraordinary circumstances exist, and only when the extraordinary circumstances have met the stringent conditions that will permit its application.
We find the doctrine of operative fact applicable to the adoption and implementation of the DAP. Its application to the DAP proceeds from equity and fair play. The consequences resulting from the DAP and its related issuances could not be ignored or could no longer be undone.
To be clear, the doctrine of operative fact extends to a void or unconstitutional executive act. The term executive act is broad enough to include any and all acts of the Executive, including those that are quasi legislative and quasi-judicial in nature. The Court held so in Hacienda Luisita, Inc. v. Presidential Agrarian Reform Council:210
Nonetheless, the minority is of the persistent view that the applicability of the operative fact doctrine should be limited to statutes and rules and regulations issued by the executive department that are accorded the same status as that of a statute or those which are quasi-legislative in nature. Thus, the minority concludes that the phrase ‘executive act’ used in the case of De Agbayani v. Philippine National Bank refers only to acts, orders, and rules and regulations that have the force and effect of law. The minority also made mention of the Concurring Opinion of Justice Enrique Fernando in Municipality of Malabang v. Benito, where it was supposedly made explicit that the operative fact doctrine applies to executive acts, which are ultimately quasi-legislative in nature.
We disagree. For one, neither the De Agbayani case nor the Municipality of Malabang case elaborates what ‘executive act’ mean. Moreover, while orders, rules and regulations issued by the President or the executive branch have fixed definitions and meaning in the Administrative Code and jurisprudence, the phrase ‘executive act’ does not have such specific definition under existing laws. It should be noted that in the cases cited by the minority, nowhere can it be found that the term ‘executive act’ is confined to the foregoing. Contrarily, the term ‘executive act’ is broad enough to encompass decisions of administrative bodies and agencies under the executive department which are subsequently revoked by the agency in question or nullified by the Court.
A case in point is the concurrent appointment of Magdangal B. Elma (Elma) as Chairman of the Presidential Commission on Good Government (PCGG) and as Chief Presidential Legal Counsel (CPLC) which was declared unconstitutional by this Court in Public Interest Center, Inc. v. Elma. In said case, this Court ruled that the concurrent appointment of Elma to these offices is in violation of Section 7, par. 2, Article IX-B of the 1987 Constitution, since these are incompatible offices. Notably, the appointment of Elma as Chairman of the PCGG and as CPLC is, without a question, an executive act. Prior to the declaration of unconstitutionality of the said executive act, certain acts or transactions were made in good faith and in reliance of the appointment of Elma which cannot just be set aside or invalidated by its subsequent invalidation.
In Tan v. Barrios, this Court, in applying the operative fact doctrine, held that despite the invalidity of the jurisdiction of the military courts over civilians, certain operative facts must be acknowledged to have existed so as not to trample upon the rights of the accused therein. Relevant thereto, in Olaguer v. Military Commission No. 34, it was ruled that ‘military tribunals pertain to the Executive Department of the Government and are simply instrumentalities of the executive power, provided by the legislature for the President as Commander-in-Chief to aid him in properly commanding the army and navy and enforcing discipline therein, and utilized under his orders or those of his authorized military representatives.’
Evidently, the operative fact doctrine is not confined to statutes and rules and regulations issued by the executive department that are accorded the same status as that of a statute or those which are quasi-legislative in nature.
Even assuming that De Agbayani initially applied the operative fact doctrine only to executive issuances like orders and rules and regulations, said principle can nonetheless be applied, by analogy, to decisions made by the President or the agencies under the executive department. This doctrine, in the interest of justice and equity, can be applied liberally and in a broad sense to encompass said decisions of the executive branch. In keeping with the demands of equity, the Court can apply the operative fact doctrine to acts and consequences that resulted from the reliance not only on a law or executive act which is quasi-legislative in nature but also on decisions or orders of the executive branch which were later nullified. This Court is not unmindful that such acts and consequences must be recognized in the higher interest of justice, equity and fairness.
Significantly, a decision made by the President or the administrative agencies has to be complied with because it has the force and effect of law, springing from the powers of the President under the Constitution and existing laws. Prior to the nullification or recall of said decision, it may have produced acts and consequences in conformity to and in reliance of said decision, which must be respected. It is on this score that the operative fact doctrine should be applied to acts and consequences that resulted from the implementation of the PARC Resolution approving the SDP of HLI. (Bold underscoring supplied for emphasis)
In Commissioner of Internal Revenue v. San Roque Power Corporation,211 the Court likewise declared that "for the operative fact doctrine to apply, there must be a ‘legislative or executive measure,’ meaning a law or executive issuance." Thus, the Court opined there that the operative fact doctrine did not apply to a mere administrative practice of the Bureau of Internal Revenue, viz:
Under Section 246, taxpayers may rely upon a rule or ruling issued by the Commissioner from the time the rule or ruling is issued up to its reversal by the Commissioner or this Court. The reversal is not given retroactive effect. This, in essence, is the doctrine of operative fact. There must, however, be a rule or ruling issued by the Commissioner that is relied upon by the taxpayer in good faith. A mere administrative practice, not formalized into a rule or ruling, will not suffice because such a mere administrative practice may not be uniformly and consistently applied. An administrative practice, if not formalized as a rule or ruling, will not be known to the general public and can be availed of only by those with informal contacts with the government agency.
It is clear from the foregoing that the adoption and the implementation of the DAP and its related issuances were executive acts.1avvphi1 The DAP itself, as a policy, transcended a merely
administrative practice especially after the Executive, through the DBM, implemented it by issuing various memoranda and circulars. The pooling of savings pursuant to the DAP from the allotments made available to the different agencies and departments was consistently applied throughout the entire Executive. With the Executive, through the DBM, being in charge of the third phase of the budget cycle – the budget execution phase, the President could legitimately adopt a policy like the DAP by virtue of his primary responsibility as the Chief Executive of directing the national economy towards growth and development. This is simply because savings could and should be determined only during the budget execution phase.
As already mentioned, the implementation of the DAP resulted into the use of savings pooled by the Executive to finance the PAPs that were not covered in the GAA, or that did not have proper appropriation covers, as well as to augment items pertaining to other departments of the Government in clear violation of the Constitution. To declare the implementation of the DAP unconstitutional without recognizing that its prior implementation constituted an operative fact that produced consequences in the real as well as juristic worlds of the Government and the Nation is to be impractical and unfair. Unless the doctrine is held to apply, the Executive as the disburser and the offices under it and elsewhere as the recipients could be required to undo everything that they had implemented in good faith under the DAP. That scenario would be enormously burdensome for the Government. Equity alleviates such burden.
The other side of the coin is that it has been adequately shown as to be beyond debate that the implementation of the DAP yielded undeniably positive results that enhanced the economic welfare of the country. To count the positive results may be impossible, but the visible ones, like public infrastructure, could easily include roads, bridges, homes for the homeless, hospitals, classrooms and the like. Not to apply the doctrine of operative fact to the DAP could literally cause the physical undoing of such worthy results by destruction, and would result in most undesirable wastefulness.
Nonetheless, as Justice Brion has pointed out during the deliberations, the doctrine of operative fact does not always apply, and is not always the consequence of every declaration of constitutional invalidity. It can be invoked only in situations where the nullification of the effects of what used to be a valid law would result in inequity and injustice;212 but where no such result would ensue, the general rule that an unconstitutional law is totally ineffective should apply.
In that context, as Justice Brion has clarified, the doctrine of operative fact can apply only to the PAPs that can no longer be undone, and whose beneficiaries relied in good faith on the validity of the DAP, but cannot apply to the authors, proponents and implementors of the DAP, unless there are concrete findings of good faith in their favor by the proper tribunals determining their criminal, civil, administrative and other liabilities.
WHEREFORE, the Court PARTIALLY GRANTS the petitions for certiorari and prohibition; and DECLARES the following acts and practices under the Disbursement Acceleration Program, National Budget Circular No. 541 and related executive issuances UNCONSTITUTIONAL for being in violation of Section 25(5), Article VI of the 1987 Constitution and the doctrine of separation of powers, namely:
(a) The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year and without complying with the statutory definition of savings contained in the General Appropriations Acts;
(b) The cross-border transfers of the savings of the Executive to augment the appropriations of other offices outside the Executive; and
(c) The funding of projects, activities and programs that were not covered by any appropriation in the General Appropriations Act.
The Court further DECLARES VOID the use of unprogrammed funds despite the absence of a certification by the National Treasurer that the revenue collections exceeded the revenue targets for non-compliance with the conditions provided in the relevant General Appropriations Acts.
SO ORDERED.
LUCAS P. BERSAMINAssociate Justice
EN BANC
G.R. No. 209287 February 3, 2015
MARIA CAROLINA P. ARAULLO, CHAIRPERSON, BAGONG ALYANSANG MAKABAYAN; JUDY M. TAGUIWALO, PROFESSOR, UNIVERSITY OF THE PHILIPPINES DILIMAN, CO-CHAIRPERSON, PAGBABAGO; HENRI KAHN, CONCERNED CITIZENS MOVEMENT; REP. LUZ ILAGAN, GABRIELA WOMEN'S PARTY REPRESENTATIVE; REP. TERRY L. RIDON, KABATAAN PARTYLIST REPRESENTATIVE; REP. CARLOS ISAGANI ZARATE, BAYAN MUNA PARTY-LIST REPRESENTATIVE; RENATO M. REYES, JR., SECRETARY GENERAL OF BAYAN; MANUEL K. DAYRIT, CHAIRMAN, ANG KAPATIRAN PARTY; VENCER MARI E. CRISOSTOMO, CHAIRPERSON, ANAKBAYAN; VICTOR VILLANUEVA, CONVENOR, YOUTH ACT NOW, Petitioners, vs.BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES; PAQUITO N. OCHOA, JR., EXECUTIVE SECRETARY; AND FLORENCIO B. ABAD, SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 209135
AUGUSTO L. SYJUCO JR., Ph.D., Petitioner, vs.FLORENCIO B. ABAD, IN HIS CAPACITY AS THE SECRETARY OF DEPARTMENT OF BUDGET AND MANAGEMENT; AND HON. FRANKLIN MAGTUNAO DRILON, IN HIS CAPACITY AS THE SENATE PRESIDENT OF THE PHILIPPINES, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 209136
MANUELITO R. LUNA, Petitioner, vs.SECRETARY FLORENCIO ABAD, IN HIS OFFICIAL CAPACITY AS HEAD OF THE DEPARTMENT OF BUDGET AND MANAGEMENT; AND EXECUTIVE SECRETARY PAQUITO OCHOA, IN HIS OFFICIAL CAPACITY AS ALTER EGO OF THE PRESIDENT, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 209155
ATTY. JOSE MALVAR VILLEGAS, JR. Petitioner vs.THE HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.; AND THE SECRETARY OF BUDGET AND MANAGEMENT FLORENCIO B. ABAD, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 209164
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), REPRESENTED BY DEAN FROILAN M. BACUNGAN, BENJAMIN E. DIOKNO AND LEONOR M. BRIONES, Petitioners, vs.DEPARTMENT OF BUDGET AND MANAGEMENT AND/OR HON. FLORENCIO B. ABAD, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 209260
INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioner, vs.SECRETARY FLORENCIO B. ABAD OF THE DEPARTMENT OF BUDGET AND MANAGEMENT (DBM),Respondent.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 209442
GRECO ANTONIOUS BEDA B. BELGICA; BISHOP REUBEN M. ABANTE AND REV. JOSE L. GONZALEZ,Petitioners, vs.PRESIDENT BENIGNO SIMEON C. AQUINO III, THE SENATE OF THE PHILIPPINES, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON; THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER FELICIANO BELMONTE, JR.; THE EXECUTIVE OFFICE, REPRESENTED BY EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.; THE DEPARTMENT OF BUDGET AND MANAGEMENT, REPRESENTED BY SECRETARY FLORENCIO ABAD; THE DEPARTMENT OF FINANCE, REPRESENTED BY
SECRETARY CESAR V. PURISIMA; AND THE BUREAU OF TREASURY, REPRESENTED BY ROSALIA V. DE LEON, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 209517
CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE), REPRESENTED BY ITS 1ST VICE PRESIDENT, SANTIAGO DASMARINAS, JR.; ROSALINDA NARTATES, FOR HERSELF AND AS NATIONAL PRESIDENT OF THE CONSOLIDATED UNION OF EMPLOYEES NATIONAL HOUSING AUTHORITY (CUE-NHA); MANUEL BACLAGON, FOR HIMSELF AND AS PRESIDENT OF THE SOCIAL WELFARE EMPLOYEES ASSOCIATION OF THE PHILIPPINES, DEPARTMENT OF SOCIAL WELFARE AND DEVELOPMENT CENTRAL OFFICE (SWEAP-DSWD CO); ANTONIA PASCUAL, FOR HERSELF AND AS NATIONAL PRESIDENT OF THE DEPARTMENT OF AGRARIAN REFORM EMPLOYEES ASSOCIATION (DAREA); ALBERT MAGALANG, FOR HIMSELF AND AS PRESIDENT OF THE ENVIRONMENT AND MANAGEMENT BUREAU EMPLOYEES UNION (EMBEU); AND MARCIAL ARABA, FOR HIMSELF AND AS PRESIDENT OF THE KAPISANAN PARA SA KAGALINGAN NG MGA KAW ANI NG MMDA (KKK-MMDA), Petitioners, vs.BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES; PAQUITO OCHOA, JR., EXECUTIVE SECRETARY; AND HON. FLORENCIO B. ABAD, SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 209569
VOLUNTEERS AGAINST CRIME AND CORRUPTION (V ACC), REPRESENTED BY DANTE L. JIMENEZ,Petitioner, vs.PAQUITO N. OCHOA, EXECUTIVE SECRETARY, AND FLORENCIO B. ABAD, SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.
R E S O L U T I O N
BERSAMIN, J.:
The Constitution must ever remain supreme. All must bow to the mandate of this law. Expediency must not be allowed to sap its strength nor greed for power debase its rectitude.1
Before the Court are the Motion for Reconsideration2 filed by the respondents, and the Motion for Partial Reconsideration3 filed by the petitioners in G.R. No. 209442.
In their Motion for Reconsideration, the respondents assail the decision4 promulgated on July 1 2014 upon the following procedural and substantive errors, viz:
PROCEDURAL
I
WITHOUT AN ACTUAL CASE OR CONTROVERSY, ALLEGATIONS OF GRAVE ABUSE OF DISCRETION ON THE PART OF ANY INSTRUMENTALITY OF THE GOVERNMENT CANNOT CONFER ON THIS HONORABLE COURT THE POWER TO DETERMINE THE CONSTITUTIONALITY OF THE DAP AND NBC NO. 541
II
PETITIONERS’ ACTIONS DO NOT PRESENT AN ACTUAL CASE OR CONTROVERSY AND THEREFORE THIS HONORABLE COURT DID NOT ACQUIRE JURISDICTION
III
PETITIONERS HAVE NEITHER BEEN INJURED NOR THREATENED WITH INJURY AS A RESULT OF THE OPERATION OF THE DAP AND THEREFORE SHOULD HAVE BEEN HELD TO HAVE NO STANDING TO BRING THESE SUITS FOR CERTIORARI AND PROHIBITION
IV
NOR CAN PETITIONERS’ STANDING BE SUSTAINED ON THE GROUND THAT THEY ARE BRINGING THESE SUITS AS CITIZENS AND AS TAXPAYERS
V
THE DECISION OF THIS HONORABLE COURT IS NOT BASED ON A CONSIDERATION OF THE ACTUAL APPLICATIONS OF THE DAP IN 116 CASES BUT SOLELY ON AN ABSTRACT CONSIDERATION OF NBC NO. 5415
SUBSTANTIVE
I
THE EXECUTIVE DEPARTMENT PROPERLY INTERPRETED "SAVINGS" UNDER THE RELEVANT PROVISIONS OF THE GAA
II
ALL DAP APPLICATIONS HAVE APPROPRIATION COVER
III
THE PRESIDENT HAS AUTHORITY TO TRANSFER SAVINGS TO OTHER DEPARTMENTS PURSUANT TO HIS CONSTITUTIONAL POWERS
IV
THE 2011, 2012 AND 2013 GAAS ONLY REQUIRE THAT REVENUE COLLECTIONS FROM EACH SOURCE OF REVENUE ENUMERATED IN THE BUDGET PROPOSAL MUST EXCEED THE CORRESPONDING REVENUE TARGET
V
THE OPERATIVE FACT DOCTRINE WAS WRONGLY APPLIED6
The respondents maintain that the issues in these consolidated cases were mischaracterized and unnecessarily constitutionalized; that the Court’s interpretation of savings can be overturned by legislation considering that savings is defined in the General Appropriations Act (GAA), hence making savings a statutory issue;7 that the withdrawn unobligated allotments and unreleased appropriations constitute savings and may be used for augmentation;8 and that the Court should apply legally recognized norms and principles, most especially the presumption of good faith, in resolving their motion.9
On their part, the petitioners in G.R. No. 209442 pray for the partial reconsideration of the decision on the ground that the Court thereby:
FAILED TO DECLARE AS UNCONSTITUTIONAL AND ILLEGAL ALL MONEYS UNDER THE DISBURSEMENT ACCELERATION PROGRAM (DAP) USED FOR ALLEGED AUGMENTATION OF APPROPRIATION ITEMS THAT DID NOT HAVE ACTUAL DEFICIENCIES10
They submit that augmentation of items beyond the maximum amounts recommended by the President for the programs, activities and projects (PAPs) contained in the budget submitted to Congress should be declared unconstitutional.
Ruling of the Court
We deny the motion for reconsideration of the petitioners in G.R. No. 209442, and partially grant the motion for reconsideration of the respondents.
The procedural challenges raised by the respondents, being a mere rehash of their earlier arguments herein, are dismissed for being already passed upon in the assailed decision.
As to the substantive challenges, the Court discerns that the grounds are also reiterations of the arguments that were already thoroughly discussed and passed upon in the assailed decision. However, certain declarations in our July 1, 2014 Decision are modified in order to clarify certain matters and dispel further uncertainty.
1.
The Court’s power of judicial review
The respondents argue that the Executive has not violated the GAA because savings as a conceptis an ordinary species of interpretation that calls for legislative, instead of judicial, determination.11
This argument cannot stand.
The consolidated petitions distinctly raised the question of the constitutionality of the acts and practices under the DAP, particularly their non-conformity with Section 25(5), Article VI of the Constitution and the principles of separation of power and equal protection. Hence, the matter is still entirely within the Court’s competence, and its determination does not pertain to Congress to the exclusion of the Court. Indeed, the interpretation of the GAA and its definition of savings is a foremost judicial function. This is because the power of judicial review vested in the Court is exclusive. As clarified in Endencia and Jugo v. David:12
Under our system of constitutional government, the Legislative department is assigned the power to make and enact laws. The Executive department is charged with the execution of carrying out of the provisions of said laws. But the interpretation and application of said laws belong exclusively to the Judicial department. And this authority to interpret and apply the laws extends to the Constitution. Before the courts can determine whether a law is constitutional or not, it will have to interpret and ascertain the meaning not only of said law, but also of the pertinent portion of the Constitution in order to decide whether there is a conflict between the two, because if there is, then the law will have to give way and has to be declared invalid and unconstitutional.
x x x x
We have already said that the Legislature under our form of government is assigned the task and the power to make and enact laws, but not to interpret them. This is more true with regard to the interpretation of the basic law, the Constitution, which is not within the sphere of the Legislative department. If the Legislature may declare what a law means, or what a specific portion of the Constitution means, especially after the courts have in actual case ascertain its meaning by interpretation and applied it in a decision, this would surely cause confusion and instability in judicial processes and court decisions. Under such a system, a final court determination of a case based on a judicial interpretation of the law of the Constitution may be undermined or even annulled by a subsequent and different interpretation of the law or of the Constitution by the Legislative department. That would be neither wise nor desirable, besides being clearly violative of the fundamental, principles of our constitutional system of government, particularly those governing the separation of powers.13
The respondents cannot also ignore the glaring fact that the petitions primarily and significantly alleged grave abuse of discretion on the part of the Executive in the implementation of the DAP. The resolution of the petitions thus demanded the exercise by the Court of its aforedescribed power of judicial review as mandated by the Constitution.
2.
Strict construction on the accumulation and utilization of savings
The decision of the Court has underscored that the exercise of the power to augment shall be strictly construed by virtue of its being an exception to the general rule that the funding of PAPs shall be limited to the amount fixed by Congress for the purpose.14 Necessarily, savings, their utilization and their management will also be strictly construed against expanding the scope of the power to augment.15 Such a strict interpretation is essential in order to keep the Executive and other budget implementors within the limits of their prerogatives during budget execution,
and to prevent them from unduly transgressing Congress’ power of the purse.16 Hence, regardless of the perceived beneficial purposes of the DAP, and regardless of whether the DAP is viewed as an effective tool of stimulating the national economy, the acts and practices under the DAP and the relevant provisions of NBC No. 541 cited in the Decision should remain illegal and unconstitutional as long as the funds used to finance the projects mentioned therein are sourced from savings that deviated from the relevant provisions of the GAA, as well as the limitation on the power to augment under Section 25(5), Article VI of the Constitution. In a society governed by laws, even the best intentions must come within the parameters defined and set by the Constitution and the law. Laudable purposes must be carried out through legal methods.17
Respondents contend, however, that withdrawn unobligated allotments and unreleased appropriations under the DAP are savings that may be used for augmentation, and that the withdrawal of unobligated allotments were made pursuant to Section 38 Chapter 5, Book VI of the Administrative Code;18 that Section 38 and Section 39, Chapter 5, Book VI of the Administrative Code are consistent with Section 25(5), Article VI of the Constitution, which, taken together, constitute "a framework for which economic managers of the nation may pull various levers in the form of authorization from Congress to efficiently steer the economy towards the specific and general purposes of the GAA;"19 and that the President’s augmentation of deficient items is in accordance with the standing authority issued by Congress through Section 39.
Section 25(5), Article VI of the Constitution states:
Section 25. x x x x x x x
5) No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.
x x x x
Section 38 and Section 39, Chapter 5, Book VI of the Administrative Code provide:
Section 38. Suspension of Expenditure of Appropriations. - Except as otherwise provided in the General Appropriations Act and whenever in his judgment the public interest so requires, the President, upon notice to the head of office concerned, is authorized to suspend or otherwise stop further expenditure of funds allotted for any agency, or any other expenditure authorized in the General Appropriations Act, except for personal services appropriations used for permanent officials and employees.
Section 39. Authority to Use Savings in Appropriations to Cover Deficits.—Except as otherwise provided in the General Appropriations Act, any savings in the regular appropriations authorized in the General Appropriations Act for programs and projects of any department, office or agency, may, with the approval of the President, be used to cover a deficit in any other item of the regular appropriations: Provided, that the creation of new positions or increase of salaries shall not be allowed to be funded from budgetary savings except when specifically authorized by law: Provided, further, that whenever authorized positions are transferred from one program
or project to another within the same department, office or agency, the corresponding amounts appropriated for personal services are also deemed transferred, without, however increasing the total outlay for personal services of the department, office or agency concerned. (Bold underscoring supplied for emphasis)
In the Decision, we said that:
Unobligated allotments, on the other hand, were encompassed by the first part of the definition of "savings" in the GAA, that is, as "portions or balances of any programmed appropriation in this Act free from any obligation or encumbrance." But the first part of the definition was further qualified by the three enumerated instances of when savings would be realized. As such, unobligated allotments could not be indiscriminately declared as savings without first determining whether any of the three instances existed. This signified that the DBM’s withdrawal of unobligated allotments had disregarded the definition of savings under the GAAs.
x x x x
The respondents rely on Section 38, Chapter 5, Book VI of the Administrative Code of 1987 to justify the withdrawal of unobligated allotments. But the provision authorized only the suspension or stoppage of further expenditures, not the withdrawal of unobligated allotments, to wit:
x x x x
Moreover, the DBM did not suspend or stop further expenditures in accordance with Section 38, supra, but instead transferred the funds to other PAPs.20
We now clarify.
Section 38 refers to the authority of the President "to suspend or otherwise stop further expenditure of funds allotted for any agency, or any other expenditure authorized in the General Appropriations Act." When the President suspends or stops expenditure of funds, savings are not automatically generated until it has been established that such funds or appropriations are free from any obligation or encumbrance, and that the work, activity or purpose for which the appropriation is authorized has been completed, discontinued or abandoned.
It is necessary to reiterate that under Section 5.7 of NBC No. 541, the withdrawn unobligated allotments may be:
5.7.1 Reissued for the original programs and projects of the agencies/OUs concerned, from which the allotments were withdrawn;
5.7.2 Realigned to cover additional funding for other existing programs and projects of the agency/OU; or
5.7.3 Used to augment existing programs and projects of any agency and to fund priority programs and projects not considered in the 2012 budget but expected to be started or implemented during the current year.
Although the withdrawal of unobligated allotments may have effectively resulted in the suspension or stoppage of expenditures through the issuance of negative Special Allotment Release Orders (SARO), the reissuance of withdrawn allotments to the original programs and projects is a clear indication that the program or project from which the allotments were withdrawn has not been discontinued or abandoned. Consequently, as we have pointed out in the Decision, "the purpose for which the withdrawn funds had been appropriated was not yet fulfilled, or did not yet cease to exist, rendering the declaration of the funds as savings impossible."21 In this regard, the withdrawal and transfer of unobligated allotments remain unconstitutional. But then, whether the withdrawn allotments have actually been reissued to their original programs or projects is a factual matter determinable by the proper tribunal.
Also, withdrawals of unobligated allotments pursuant to NBC No. 541 which shortened the availability of appropriations for MOOE and capital outlays, and those which were transferred to PAPs that were not determined to be deficient, are still constitutionally infirm and invalid.
At this point, it is likewise important to underscore that the reversion to the General Fund of unexpended balances of appropriations – savings included – pursuant to Section 28 Chapter IV, Book VI of the Administrative Code22does not apply to the Constitutional Fiscal Autonomy Group (CFAG), which include the Judiciary, Civil Service Commission, Commission on Audit, Commission on Elections, Commission on Human Rights, and the Office of the Ombudsman. The reason for this is that the fiscal autonomy enjoyed by the CFAG –
x x x contemplates a guarantee of full flexibility to allocate and utilize their resources with the wisdom and dispatch that their needs require. It recognizes the power and authority to levy, assess and collect fees, fix rates of compensation not exceeding the highest rates authorized by law for compensation and pay plans of the government and allocate and disburse such sums as may be provided by law or prescribed by them in the course of the discharge of their functions.
Fiscal autonomy means freedom from outside control. If the Supreme Court says it needs 100 typewriters but DBM rules we need only 10 typewriters and sends its recommendations to Congress without even informing us, the autonomy given by the Constitution becomes an empty and illusory platitude.
The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and constraints on the manner the independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy and violative not only of the express mandate of the Constitution but especially as regards the Supreme Court, of the independence and separation of powers upon which the entire fabric of our constitutional system is based. x x x23
On the other hand, Section 39 is evidently in conflict with the plain text of Section 25(5), Article VI of the Constitution because it allows the President to approve the use of any savings in the regular appropriations authorized in the GAA for programs and projects of any department, office or agency to cover a deficit in any other item of the regular appropriations. As such, Section 39 violates the mandate of Section 25(5) because the latter expressly limits the authority of the President to augment an item in the GAA to only those in his own Department out of the savings in other items of his own Department’s appropriations. Accordingly, Section 39 cannot serve as a valid authority to justify cross-border transfers under the DAP.
Augmentations under the DAP which are made by the Executive within its department shall, however, remain valid so long as the requisites under Section 25(5) are complied with.
In this connection, the respondents must always be reminded that the Constitution is the basic law to which all laws must conform. No act that conflicts with the Constitution can be valid.24 In Mutuc v. Commission on Elections,25 therefore, we have emphasized the importance of recognizing and bowing to the supremacy of the Constitution:
x x x The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act whether proceeding from the highest official or the lowest functionary, is a postulate of our system of government. That is to manifest fealty to the rule of law, with priority accorded to that which occupies the topmost rung in the legal hierarchy. The three departments of government in the discharge of the functions with which it is [sic] entrusted have no choice but to yield obedience to its commands. Whatever limits it imposes must be observed. Congress in the enactment of statutes must ever be on guard lest the restrictions on its authority, whether substantive or formal, be transcended. The Presidency in the execution of the laws cannot ignore or disregard what it ordains. In its task of applying the law to the facts as found in deciding cases, the judiciary is called upon to maintain inviolate what is decreed by the fundamental law. Even its power of judicial review to pass upon the validity of the acts of the coordinate branches in the course of adjudication is a logical corollary of this basic principle that the Constitution is paramount. It overrides any governmental measure that fails to live up to its mandates. Thereby there is a recognition of its being the supreme law.
Also, in Biraogo v. Philippine Truth Commission of 2010,26 we have reminded that: – The role of the Constitution cannot be overlooked. It is through the Constitution that the fundamental powers of government are established, limited and defined, and by which these powers are distributed among the several departments. The Constitution is the basic and paramount law to which all other laws must conform and to which all persons, including the highest officials of the land, must defer. Constitutional doctrines must remain steadfast no matter what may be the tides of time. It cannot be simply made to sway and accommodate the call of situations and much more tailor itself to the whims and caprices of government and the people who run it.27
3.
The power to augment cannot be used to fund non-existent provisions in the GAA
The respondents posit that the Court has erroneously invalidated all the DAP-funded projects by overlooking the difference between an item and an allotment class, and by concluding that they do not have appropriation cover; and that such error may induce Congress and the Executive (through the DBM) to ensure that all items should have at least P1 funding in order to allow augmentation by the President.28
At the outset, we allay the respondents’ apprehension regarding the validity of the DAP funded projects. It is to be emphatically indicated that the Decision did not declare the en masse invalidation of the 116 DAP-funded projects. To be sure, the Court recognized the encouraging effects of the DAP on the country’s economy,29 and acknowledged its laudable purposes, most especially those directed towards infrastructure development and efficient delivery of basic social services.30 It bears repeating that the DAP is a policy instrument that the Executive, by its own prerogative, may utilize to spur economic growth and development.
Nonetheless, the Decision did find doubtful those projects that appeared to have no appropriation cover under the relevant GAAs on the basis that: (1) the DAP funded projects that originally did not contain any appropriation for some of the expense categories (personnel, MOOE and capital outlay); and (2) the appropriation code and the particulars appearing in the SARO did not correspond with the program specified in the GAA. The respondents assert, however, that there is no constitutional requirement for Congress to create allotment classes within an item. What is required is for Congress to create items to comply with the line-item veto of the President.31
After a careful reexamination of existing laws and jurisprudence, we find merit in the respondents’ argument.
Indeed, Section 25(5) of the 1987 Constitution mentions of the term item that may be the object of augmentation by the President, the Senate President, the Speaker of the House, the Chief Justice, and the heads of the Constitutional Commissions. In Belgica v. Ochoa,32 we said that an item that is the distinct and several part of the appropriation bill, in line with the item-veto power of the President, must contain "specific appropriations of money" and not be only general provisions, thus:
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:
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 notonly "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 President‘s item veto power. Finally, special purpose funds and discretionary funds would equally square with the constitutional mechanism of item-veto for as
long as they follow the rule on singular correspondence as herein discussed. x x x (Emphasis supplied)33
Accordingly, the item referred to by Section 25(5) of the Constitution is the last and indivisible purpose of a program in the appropriation law, which is distinct from the expense category or allotment class. There is no specificity, indeed, either in the Constitution or in the relevant GAAs that the object of augmentation should be the expense category or allotment class. In the same vein, the President cannot exercise his veto power over an expense category; he may only veto the item to which that expense category belongs to.
Further, in Nazareth v. Villar,34 we clarified that there must be an existing item, project or activity, purpose or object of expenditure with an appropriation to which savings may be transferred for the purpose of augmentation. Accordingly, so long as there is an item in the GAA for which Congress had set aside a specified amount of public fund, savings may be transferred thereto for augmentation purposes. This interpretation is consistent not only with the Constitution and the GAAs, but also with the degree of flexibility allowed to the Executive during budget execution in responding to unforeseeable contingencies.
Nonetheless, this modified interpretation does not take away the cave at that only DAP projects found in the appropriate GAAs may be the subject of augmentation by legally accumulated savings. Whether or not the 116 DAP-funded projects had appropriation cover and were validly augmented require factual determination that is not within the scope of the present consolidated petitions under Rule 65.
4.
Cross-border transfers are constitutionally impermissible
The respondents assail the pronouncement of unconstitutionality of cross-border transfers made by the President. They submit that Section 25(5), Article VI of the Constitution prohibits only the transfer of appropriation, not savings. They relate that cross-border transfers have been the practice in the past, being consistent with the President’s role as the Chief Executive.35
In view of the clarity of the text of Section 25(5), however, the Court stands by its pronouncement, and will not brook any strained interpretations.
5.
Unprogrammed funds may only be released upon proof that the total revenues exceeded the target
Based on the 2011, 2012 and 2013 GAAs, the respondents contend that each source of revenue in the budget proposal must exceed the respective target to authorize release of unprogrammed funds. Accordingly, the Court’s ruling thereon nullified the intention of the authors of the unprogrammed fund, and renders useless the special provisions in the relevant GAAs.36
The respondents’ contentions are without merit.
To recall, the respondents justified the use of unprogrammed funds by submitting certifications from the Bureau of Treasury and the Department of Finance (DOF) regarding the dividends derived from the shares of stock held by the Government in government-owned and controlled corporations.37 In the decision, the Court has held that the requirement under the relevant GAAs should be construed in light of the purpose for which the unprogrammed funds were denominated as "standby appropriations." Hence, revenue targets should be considered as a whole, not individually; otherwise, we would be dealing with artificial revenue surpluses. We have even cautioned that the release of unprogrammed funds based on the respondents’ position could be unsound fiscal management for disregarding the budget plan and fostering budget deficits, contrary to the Government’s surplus budget policy.38
While we maintain the position that aggregate revenue collection must first exceed aggregate revenue target as a pre-requisite to the use of unprogrammed funds, we clarify the respondents’ notion that the release of unprogrammed funds may only occur at the end of the fiscal year.
There must be consistent monitoring as a component of the budget accountability phase of every agency’s performance in terms of the agency’s budget utilization as provided in Book VI, Chapter 6, Section 51 and Section 52 of the Administrative Code of 1987,which state:
SECTION 51. Evaluation of Agency Performance.—The President, through the Secretary shall evaluate on a continuing basis the quantitative and qualitative measures of agency performance as reflected in the units of work measurement and other indicators of agency performance, including the standard and actual costs per unit of work.
SECTION 52. Budget Monitoring and Information System.—The Secretary of Budget shall determine accounting and other items of information, financial or otherwise, needed to monitor budget performance and to assess effectiveness of agencies’ operations and shall prescribe the forms, schedule of submission, and other components of reporting systems, including the maintenance of subsidiary and other records which will enable agencies to accomplish and submit said information requirements: Provided, that the Commission on Audit shall, in coordination with the Secretary of Budget, issue rules and regulations that may be applicable when the reporting requirements affect accounting functions of agencies: Provided, further, that the applicable rules and regulations shall be issued by the Commission on Audit within a period of thirty (30) days after the Department of Budget and Management prescribes the reporting requirements.
Pursuant to the foregoing, the Department of Budget and Management (DBM) and the Commission on Audit (COA) require agencies under various joint circulars to submit budget and financial accountability reports (BFAR) on a regular basis,39 one of which is the Quarterly Report of Income or Quarterly Report of Revenue and Other Receipts.40 On the other hand, as Justice Carpio points out in his Separate Opinion, the Development Budget Coordination Committee (DBCC) sets quarterly revenue targets for aspecific fiscal year.41 Since information on both actual revenue collections and targets are made available every quarter, or at such time as the DBM may prescribe, actual revenue surplus may be determined accordingly and eleases from the unprogrammed fund may take place even prior to the end of the fiscal year.42
In fact, the eleventh special provision for unprogrammed funds in the 2011 GAA requires the DBM to submit quarterly reports stating the details of the use and releases from the unprogrammed funds, viz:
11. Reportorial Requirement. The DBM shall submit to the House Committee on Appropriations and the Senate Committee on Finance separate quarterly reports stating the releases from the Unprogrammed Fund, the amounts released and purposes thereof, and the recipient departments, bureaus, agencies or offices, GOCCs and GFIs, including the authority under which the funds are released under Special Provision No. 1 of the Unprogrammed Fund.
Similar provisions are contained in the 2012 and 2013 GAAs.43
However, the Court’s construction of the provision on unprogrammed funds is a statutory, not a constitutional, interpretation of an ambiguous phrase. Thus, the construction should be given prospective effect.44
6.
The presumption of good faith stands despite the obiter pronouncement
The remaining concern involves the application of the operative fact doctrine.
The respondents decry the misapplication of the operative fact doctrine, stating:
110. The doctrine of operative fact has nothing to do with the potential liability of persons who acted pursuant to a then-constitutional statute, order, or practice. They are presumed to have acted in good faith and the court cannot load the dice, so to speak, by disabling possible defenses in potential suits against so-called "authors, proponents and implementors." The mere nullification are still deemed valid on the theory that judicial nullification is a contingent or unforeseen event.
111. The cases before us are about the statutory and constitutional interpretations of so-called acts and practices under a government program, DAP. These are not civil, administrative, or criminal actions against the public officials responsible for DAP, and any statement about bad faith may be unfairly and maliciously exploited for political ends. At the same time, any negation of the presumption of good faith, which is the unfortunate implication of paragraphs 3 and 4 of page 90 of the Decision, violates the constitutional presumption of innocence, and is inconsistent with the Honorable Court’s recognition that "the implementation of the DAP yielded undeniably positive results that enhanced the economic welfare of the country."
112. The policy behind the operative fact doctrine is consistent with the idea that regardless of the nullification of certain acts and practices under the DAP and/or NBC No. 541, it does not operate to impute bad faith to authors, proponents and implementors who continue to enjoy the presumption of innocence and regularity in the performance of official functions and duties. Good faith is presumed, whereas bad faith requires the existence of facts. To hold otherwise would send a chilling effect to all public officers whether of minimal or significant discretion, the result of which would be a dangerous paralysis of bureaucratic activity.45 (Emphasis supplied)
In the speech he delivered on July 14, 2014, President Aquino III also expressed the view that in applying the doctrine of operative fact, the Court has already presumed the absence of good faith on the part of the authors, proponents and implementors of the DAP, so that they would have to prove good faith during trial.46
Hence, in their Motion for Reconsideration, the respondents now urge that the Court should extend the presumption of good faith in favor of the President and his officials who co-authored, proposed or implemented the DAP.47
The paragraphs 3 and 4 of page 90 of the Decision alluded to by the respondents read:
Nonetheless, as Justice Brion has pointed out during the deliberations, the doctrine of operative fact does not always apply, and is not always the consequence of every declaration of constitutional invalidity. It can be invoked only in situations where the nullification of the effects of what used to be a valid law would result in inequity and injustice; but where no such result would ensue, the general rule that an unconstitutional law is totally ineffective should apply.
In that context, as Justice Brion has clarified, the doctrine of operative fact can apply only to the PAPs that can no longer be undone, and whose beneficiaries relied in good faith on the validity of the DAP, but cannot apply to the authors, proponents and implementors of the DAP, unless there are concrete findings of good faith in their favor by the proper tribunals determining their criminal, civil, administrative and other liabilities.48 (Bold underscoring is supplied)
The quoted text of paragraphs 3 and 4 shows that the Court has neither thrown out the presumption of good faith nor imputed bad faith to the authors, proponents and implementors of the DAP. The contrary is true, because the Court has still presumed their good faith by pointing out that "the doctrine of operative fact xxx cannot apply to the authors, proponents and implementors of the DAP, unless there are concrete findings of good faith in their favor by the proper tribunals determining their criminal, civil, administrative and other liabilities." Note that the proper tribunals can make "concrete findings of good faith in their favor" only after a full hearing of all the parties in any given case, and such a hearing can begin to proceed only after according all the presumptions, particularly that of good faith, by initially requiring the complainants, plaintiffs or accusers to first establish their complaints or charges before the respondent authors, proponents and implementors of the DAP.
It is equally important to stress that the ascertainment of good faith, or the lack of it, and the determination of whether or not due diligence and prudence were exercised, are questions of fact.49 The want of good faith is thus better determined by tribunals other than this Court, which is not a trier of facts.50
For sure, the Court cannot jettison the presumption of good faith in this or in any other case.1âwphi1 The presumption is a matter of law. It has had a long history. Indeed, good faith has long been established as a legal principle even in the heydays of the Roman Empire.51In Soriano v. Marcelo,52 citing Collantes v. Marcelo,53 the Court emphasizes the necessity of the presumption of good faith, thus:
Well-settled is the rule that good faith is always presumed and the Chapter on Human Relations of the Civil Code directs every person, inter alia, to observe good faith which springs from the fountain of good conscience. Specifically, a public officer is presumed to have acted in good faith in the performance of his duties. Mistakes committed by a public officer are not actionable absent any clear showing that they were motivated by malice or gross negligence amounting to bad faith. "Bad faith" does not simply connote bad moral judgment or negligence. There must be some dishonest purpose or some moral obliquity and conscious doing of a wrong, a breach of a sworn duty through some motive or intent or ill will. It partakes of the nature of fraud. It
contemplates a state of mind affirmatively operating with furtive design or some motive of self-interest or ill will for ulterior purposes.
The law also requires that the public officer’s action caused undue injury to any party, including the government, or gave any private party unwarranted benefits, advantage or preference in the discharge of his functions. x x x
The Court has further explained in Philippine Agila Satellite, Inc. v. Trinidad-Lichauco: 54
We do not doubt the existence of the presumptions of "good faith" or "regular performance of official duty", yet these presumptions are disputable and may be contradicted and overcome by other evidence. Many civil actions are oriented towards overcoming any number of these presumptions, and a cause of action can certainly be geared towards such effect. The very purpose of trial is to allow a party to present evidence to overcome the disputable presumptions involved. Otherwise, if trial is deemed irrelevant or unnecessary, owing to the perceived indisputability of the presumptions, the judicial exercise would be relegated to a mere ascertainment of what presumptions apply in a given case, nothing more. Consequently, the entire Rules of Court is rendered as excess verbiage, save perhaps for the provisions laying down the legal presumptions.
Relevantly, the authors, proponents and implementors of the DAP, being public officers, further enjoy the presumption of regularity in the performance of their functions. This presumption is necessary because they are clothed with some part of the sovereignty of the State, and because they act in the interest of the public as required by law.55 However, the presumption may be disputed.56
At any rate, the Court has agreed during its deliberations to extend to the proponents and implementors of the DAP the benefit of the doctrine of operative fact. This is because they had nothing to do at all with the adoption of the invalid acts and practices.
7.
The PAPs under the DAP remain effective under the operative fact doctrine
As a general rule, the nullification of an unconstitutional law or act carries with it the illegality of its effects. However, in cases where nullification of the effects will result in inequity and injustice, the operative fact doctrine may apply.57 In so ruling, the Court has essentially recognized the impact on the beneficiaries and the country as a whole if its ruling would pave the way for the nullification of the P144.378 Billions58 worth of infrastructure projects, social and economic services funded through the DAP. Bearing in mind the disastrous impact of nullifying these projects by virtue alone of the invalidation of certain acts and practices under the DAP, the Court has upheld the efficacy of such DAP-funded projects by applying the operative fact doctrine. For this reason, we cannot sustain the Motion for Partial Reconsideration of the petitioners in G.R. No. 209442.
IN VIEW OF THE FOREGOING, and SUBJECT TO THE FOREGOING CLARIFICATIONS, the Court PARTIALLY GRANTS the Motion for Reconsideration filed by the respondents, and DENIES the Motion for Partial Reconsideration filed by the petitioners in G.R. No. 209442 for lack of merit.
ACCORDINGLY, the dispositive portion of the Decision promulgated on July 1, 2014 is hereby MODIFIED as follows:
WHEREFORE, the Court PARTIALLY GRANTS the petitions for certiorari and prohibition; and DECLARES the following acts and practices under the Disbursement Acceleration Program, National Budget Circular No. 541 and related executive issuances UNCONSTITUTIONAL for being in violation of Section 25(5), Article VI of the 1987 Constitution and the doctrine of separation of powers, namely:
(a) The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year without complying with the statutory definition of savings contained in the General Appropriations Acts; and
(b) The cross-border transfers of the savings of the Executive to augment the appropriations of other offices outside the Executive.
The Court further DECLARES VOID the use of unprogrammed funds despite the absence of a certification by the National Treasurer that the revenue collections exceeded the revenue targets for non-compliance with the conditions provided in the relevant General Appropriations Acts.
SO ORDERED.
LUACAS P. BERSAMINAssociate Justice
WE CONCUR:
MARIA LOURDES P.A. SERENOChief Justice
See separate opinionANTONIO T. CARPIO
Associate Justice
I join the concurring & dissenting opinion of J. Del Castillo
PRESBITERO J. VELASCO, JR.Associate Justice
No part (Out due to close relation with one of the counsels of a party
TERESITA J. LEONARDO-DE CASTRO*
Associate Justice
J Brion left his vote; see his Separate Opinion (Qualified
concurrence)ARTURO D. BRION**Associate Justice
DIOSDADO M. PERALTAAssociate Justice
See concurring and dissenting opinionMARIANO C. DEL CASTILLO
Associate Justice
MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ
Associate Justice Associate Justice
JOSE CATRAL MENDOZAAssociate Justice
BIENVENIDO L. REYESAssociate Justice
ESTELA M. PERLAS-BERNABEAssociate Justice
See concurring opinionMARVIC M.V.F. LEONEN
Associate Justice
FRANCIS H. JARDELEZA***Associate Justice
C E R T I F I C A T I O N
I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the court.
MARIA LOURDES P.A. SERENOChief Justice
42 In this regard, the ninth and tenth special provisions for unprogrammed funds in the 2011 GAA also provide the following: 9. Use of Income. In case of deficiency in the appropriations for the following business-type activities, departments, bureaus, offices and agencies enumerated hereunder and other agencies as may be determined by the Permanent Committee are hereby authorized to use their respective income collected during the year. Said income shall be deposited with the National Treasury, chargeable against Purpose 4 - General Fund Adjustments, to be used exclusively for the purposes indicated herein or such other purposes authorized by the Permanent Committee, as may be required until the end of the year, subject to the submission of a Special Budget pursuant to Section 35, Chapter 5, Book VI of E. O. No. 292, s. 1987: x x x x Implementation of this section shall be subject to guidelines to be issued by the DBM. 10. Use of Excess Income. Agencies collecting fees and charges as shown in the FY 2011 Budget of Expenditures and Sources of Financing (BESF) may be allowed to use their income realized and deposited with the National Treasury, in excess of the collection targets presented in the BESF, chargeable against Purpose 4 - General Fund Adjustments, to augment their respective current appropriations, subject to the submission of a Special Budget pursuant to Section 35, Chapter 5, Book VI of E.O. No. 292: PROVIDED, That said income shall not be used to augment Personal Services appropriations including payment of discretionary and representation expenses. Implementation of this section shall be subject to guidelines jointly issued by the DBM and DOFThe 2012 and 2013 GAAs also contain similar provisions.
43 2012 GAA provides: 8. Reportorial Requirement. The DBM shall submit, either in printed form or by way of electronic document, to the House Committee on Appropriations and the Senate Committee on Finance separate quarterly reports stating
the releases from the Unprogrammed Fund, the amounts released and the purposes thereof, and the recipient departments, bureaus, agencies or offices, including GOCCs and GFIs, as well as the authority under which the funds are released under Special Provision No. 1 of the Unprogrammed Fund. 2013 GAA reads: 8. Reportorial Requirement. The DBM shall submit, either in printed form or by way of electronic document, to the House Committee on Appropriations and the Senate Committee on Finance separate quarterly reports stating the releases from the Unprogrammed Fund, the amounts released and the purposes thereof, and the recipient departments, bureaus, and offices, including GOCCs and GFIs, as well as the authority under which the funds are released under Special Provision No. 1 of the Unprogrammed Fund.
MA. CAROLINA P. ARAULLO ET AL. v. BENIGNO SIMEON C. AQUINO III ET AL., G.R. NO. 209287, July 1, 2014
In a Decision dated July 1, 2014, the Supreme Court partially granted the consolidated petitions for certiorari and prohibition and declared the following acts and practices under the Disbursement Acceleration Program (DAP), National Budget Circular No. 541 and related executive issuances unconstitutional for violating Section 25(5), Article VI of the 1987 Constitution and the doctrine of separation of powers, namely:
(a) The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year and without complying with the statutory definition of savings contained in the General Appropriations Acts;
(b) The cross-border transfers of the savings of the Executive to augment the appropriations of other offices outside the Executive; and
(c) The funding of projects, activities and programs that were not covered by any appropriation in the General Appropriations Acts.
The Court further declared void the use of unprogrammed funds despite the absence of a certification by the National Treasurer that the revenue collections exceeded the revenue targets for non-compliance with the conditions provided in the relevant General Appropriations Acts (GAAs).
Remedial law; Certiorari and prohibition. The remedies of certiorari and prohibition are necessarily broader in scope and reach, and the writ of certiorari or prohibition may be issued to correct errors of jurisdiction committed not only by a tribunal, corporation, board or officer exercising judicial, quasi-judicial or ministerial functions but also to set right, undo and restrain any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the Government, even if the latter does not exercise judicial, quasi-judicial or ministerial functions. Thus, petitions for certiorari and prohibition are appropriate remedies to raise constitutional issues and to review and/or prohibit or nullify the acts of legislative and executive officials.Remedial law; Locus standi. Citing De Castro v. Judicial and Bar Council, the Supreme Court ruled that the assertion of a public right as a predicate for challenging a supposedly illegal or unconstitutional executive or legislative action rests on the theory that the petitioner represents the public in general. Although such petitioner may not be as adversely affected by the action complained against as are others, it is enough that he sufficiently demonstrates in his
petition that he is entitled to protection or relief from the Court in the vindication of a public right. The Court likewise cited Agan, Jr. v. Philippine International Air Terminals Co., Inc. , to explain that “[s]tanding is a peculiar concept in constitutional law because in some cases, suits are not brought by parties who have been personally injured by the operation of a law or any other government act but by concerned citizens, taxpayers or voters who actually sue in the public interest.”Transcendental importance as a ground to waive locus standi. Each of the petitioners has established sufficient interest in the outcome of the controversy as to confer locus standi on each of them. In addition, considering that the issues center on the extent of the power of the Chief Executive to disburse and allocate public funds, whether appropriated by Congress or not, these cases pose issues that are of transcendental importance to the entire Nation, the petitioners included. As such, the determination of such important issues call for the Court’s exercise of its broad and wise discretion “to waive the requirement and so remove the impediment to its addressing and resolving the serious constitutional questions raised.”Administrative law; Budget process; Implementation and funding of the Disbursement Allocation Program (DAP). Four phases comprise the Philippine budget process, specifically: (1) Budget Preparation; (2) Budget Legislation; (3) Budget Execution; and (4) Accountability.
The DAP was to be implemented and funded (1) by declaring “savings” coming from the various departments and agencies derived from pooling unobligated allotments and withdrawing unreleased appropriations; (2) releasing unprogrammed funds; and (3) applying the “savings” and unprogrammed funds to augment existing [program, activity or project] or to support other priority PAPs.
Administrative law; Nature of the DAP. The DAP was a government policy or strategy designed to stimulate the economy through accelerated spending. In the context of the DAP’s adoption and implementation being a function pertaining to the Executive as the main actor during the Budget Execution Stage under its constitutional mandate to faithfully execute the laws, including the GAAs, Congress did not need to legislate to adopt or to implement the DAP.Constitutional law; The DAP is not an appropriation measure and does not contravene Section 29(1), Article VI. The President, in keeping with his duty to faithfully execute the laws, had sufficient discretion during the execution of the budget to adapt the budget to changes in the country’s economic situation. He could adopt a plan like the DAP for the purpose. He could pool the savings and identify the PAPs to be funded under the DAP. The pooling of savings pursuant to the DAP, and the identification of the PAPs to be funded under the DAP did not involve appropriation in the strict sense because the money had been already set apart from the public treasury by Congress through the GAAs. In such actions, the Executive did not usurp the power vested in Congress under Section 29(1), Article VI of the Constitution [that no money shall be paid out of the Treasury except in pursuance of an appropriation made by law].Requisites of a valid transfer of appropriated funds under Section 25(5), Article VI. The transfer of appropriated funds, to be valid under Section 25(5), [Article VI of the Constitution], must be made upon a concurrence of the following requisites, namely: (1) There is a law authorizing the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of the Constitutional Commissions to transfer funds within their respective offices; (2) The funds to be transferred are savings generated from the appropriations for their respective offices; and (3) The purpose of the transfer is to augment an item in the general appropriations law for their respective offices.
It is then indubitable that the power to augment was to be used only when the purpose for which the funds had been allocated were already satisfied, or the need for such funds had ceased to
exist, for only then could savings be properly realized. This interpretation prevents the Executive from unduly transgressing Congress’ power of the purse.
Savings, defined. The definition of “savings” under the 2011, 2012 and 2013 GAAs refer to portions or balances of any programmed appropriation in this Act free from any obligation or encumbrance which are: (i) still available after the completion or final discontinuance or abandonment of the work, activity or purpose for which the appropriation is authorized; (ii) from appropriations balances arising from unpaid compensation and related costs pertaining to vacant positions and leaves of absence without pay; and (iii) from appropriations balances realized from the implementation of measures resulting in improved systems and efficiencies and thus enabled agencies to meet and deliver the required or planned targets.
The Court agreed with petitioners that respondents were forcing the generation of savings in order to have a larger fund available for discretionary spending. Respondents, by withdrawing unobligated allotments in the middle of the fiscal year, in effect deprived funding for PAPs with existing appropriations under the GAAs.
The mandate of Section 28, Chapter IV, Book VI of the Administrative Code is to revert to the General Fund balances of appropriations that remained unexpended at the end of the fiscal year. The Executive could not circumvent this provision by declaring unreleased appropriations and unobligated allotments as savings prior to the end of the fiscal year.
Augmentation is valid only when funding is deficient. The GAAs for 2011, 2012 and 2013 set as a condition for augmentation that the appropriation for the PAP item to be augmented must be deficient, to wit: – x x x Augmentation implies the existence in this Act of a program, activity, or project with an appropriation, which upon implementation, or subsequent evaluation of needed resources, is determined to be deficient. In no case shall a non-existent program, activity, or project, be funded by augmentation from savings or by the use of appropriations otherwise authorized in this Act.The President cannot substitute his own will for that of Congress. The Court held that the “savings” pooled under the DAP were allocated to PAPs that were not covered by any appropriations in the pertinent GAAs. Although the [Office of the Solicitor General] rightly contends that the Executive was authorized to spend in line with its mandate to faithfully execute the laws (which included the GAAs), such authority did not translate to unfettered discretion that allowed the President to substitute his own will for that of Congress. He was still required to remain faithful to the provisions of the GAAs, given that his power to spend pursuant to the GAAs was but a delegation to him from Congress. Verily, the power to spend the public wealth resided in Congress, not in the Executive. Moreover, leaving the spending power of the Executive unrestricted would threaten to undo the principle of separation of powers.Cross-border transfers or augmentations are prohibited. By providing that the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the Heads of the Constitutional Commissions may be authorized to augment any item in the GAA “for their respective offices,” Section 25(5) has delineated borders between their offices, such that funds appropriated for one office are prohibited from crossing over to another office even in the guise of augmentation of a deficient item or items. Thus, we call such transfers of funds cross-border transfers or cross-border augmentations.
Regardless of the variant characterizations of the cross-border transfers of funds, the plain text of Section 25(5) disallowing cross-border transfers was disobeyed. Cross-border transfers, whether as augmentation, or as aid, are prohibited under Section 25(5).
No violation of equal protection. Petitioners claim that the Executive discriminated against some legislators on the ground alone of their receiving less than the others could not of itself warrant a finding of contravention of the Equal Protection Clause. The denial of equal protection of any law should be an issue to be raised only by parties who supposedly suffer it, and, in these cases, such parties would be the few legislators claimed to have been discriminated against in the releases of funds under the DAP. The reason for the requirement is that only such affected legislators could properly and fully bring to the fore when and how the denial of equal protection occurred, and explain why there was a denial in their situation. The requirement was not met here.Operative fact doctrine. The doctrine of operative fact recognizes the existence of the law or executive act prior to the determination of its unconstitutionality as an operative fact that produced consequences that cannot always be erased, ignored or disregarded. In short, it nullifies the void law or executive act but sustains its effects. It provides an exception to the general rule that a void or unconstitutional law produces no effect. But its use must be subjected to great scrutiny and circumspection, and it cannot be invoked to validate an unconstitutional law or executive act, but is resorted to only as a matter of equity and fair play. It applies only to cases where extraordinary circumstances exist, and only when the extraordinary circumstances have met the stringent conditions that will permit its application.The operative fact doctrine applies to the implementation of the DAP. To declare the implementation of the DAP unconstitutional without recognizing that its prior implementation constituted an operative fact that produced consequences in the real as well as juristic worlds of the Government and the Nation is to be impractical and unfair. Unless the doctrine is held to apply, the Executive as the disburser and the offices under it and elsewhere as the recipients could be required to undo everything that they had implemented in good faith under the DAP. That scenario would be enormously burdensome for the Government. Equity alleviates such burden.The DAP decision: Lessons on politics, governance
With the decision in the consolidated case of Araullo v. Aquino III, the Supreme Court had found the Disbursement Acceleration Program (DAP) of the administration of President Benigno S. Aquino “partially constitutional”, “partially unconstitutional.”
In its wake, as seen in the news, critics have gladly seized on DAP’s partial unconstitutionality to raise scenarios of impeachment against the President, or raised calls for the resignation of Budget Secretary Florencio “Butch” Abad.
These criticisms ride on the popular anger against “pork barrel” freely-disbursed lump sum allocations such as the Priority Development Assistance Fund (PDAF) declared unconstitutional in Belgica v. Executive Secretary – this time aimed at Malacañang rather than Congress.
We will not join the bandwagon. We do not support the impeachment of the president and we leave it up to Secretary Abad, an exemplary public official by any standard, to discern whether his resignation will benefit the country. We trust he will make the right decision.
In this article, we think beyond this politics of outrage, which could just be a moment or are warnings of major upheavals ahead, and reflect on the longer term political and governance implications of the DAP decision.
A judicial challenge to an act of the executive (or the legislative, for that matter), is ultimately an act that seeks to limit an instance of the exercise of that governmental power – when done right, in an effort to curb abuse and protect what is right. In parsing DAP, in declaring some of Aquino’s actions constitutional, and some unconstitutional, the Supreme Court had essentially left the President’s prerogative to augment proper budget expenditures from proper budget savings intact, but clearly defined what augmentation is not.
What augmentation is, according to the ponencia, and defined in Art. VI, Sec. 25 (5) of the 1987 Constitution, and authorized within each year’s General Appropriations Act (GAA), is the use of clearly-identified savings in the expenditures of government departments and offices to augment clearly-identified, actual deficiencies within those respective government departments and offices. What augmentation is not, however, is to allocate what was notauthorized as an expenditure in the GAA. It is not a transfer of executive department savings to legislative lump sum allocations (cross-border augmentation) – by virtue of the latter’s unconstitutionality, or at the very least, because such itself violates Art. VI Sec. 25 (5).
Savings
There, too, was a problem in addressing the definition of “actual savings” that is the source of augmentations. To quote from the ponencia, actual savings, strictly speaking, is the money left over from GAA-authorized items which are “authorized was completed, finally discontinued, or abandoned”; or because the policy targets were reached at lower cost due to increased efficiencies; or because of vacant government positions or leaves-of-absence without pay.Araullo held that it did not contemplate the use of money that had yet to be used: the controversial “unobligated allotments” of slow-moving government projects; or the unprogrammed funds, which are standby appropriations authorized in the GAA, which are available only under specific circumstances and conditions. One of DAP’s errors, but a critical one, was that it considered funds otherwise not considered by law as “actual savings”, as actual savings, making them available for disbursement by the President.
As with Belgica, Araullo exposes the underbelly of Philippine money politics: the roles and powers over the budget-crossing borders. With PDAF, it was the legislature getting an all-but-assured slice of the pie for legislators to spend on their own programs as they see fit; a usurpation of executive roles. With the unconstitutional portions of DAP, it was the Chief Executive allocating savings and unprogrammed funds to projects or programs independent of authorized GAA allocations (including DAP handovers to legislators); a usurpation of legislative functions. It would be crude but otherwise uncomfortably close to the mark to describe a “DAP’ed” president as a mini-Congress, and a “PDAF’ed” legislator as a mini-president.
Yet this confluence and contradiction of roles has likely subsisted in the foundations of Philippine politics-in-practice – certainly since PHILCONSA v. Enriquez earlier ruled pork barrel as constitutional, allowing the practice to continue with judicial leave. For all the diatribes raised against Aquino in the wake of the PDAF scandal, the truth is that, as with his predecessors, he
had inherited prior practices of Philippine government that have become so ingrained in political culture.
Malice
Other than outright malice (which has to be proven first!), nothing else but the honest belief that “pork is right (if used right)” would have motivated congressmen who cried foul and threats of impeachment over Belgica. And I do believe (despite others that claim otherwise) that what motivated the administration on the exercise of and its defensiveness with DAP was not the malice they denounce, but a similar honest belief that the Executive could reallocate unused money as it did, for the good of the nation.
Ironically, it was Aquino’s own high standards of daang matuwid that allowed the Court to resolve the DAP question as it did – or for the question to explode into public consciousness as it did. The records of the case will reflect the packages of memoranda and orders in relation to DAP money movements: amply documented and volunteered upon summons.
Admittedly, and as will be elaborated later, an audit will still be necessary to uncover the full story of DAP (and the Court did note that documents relating to DAP’s conceptualization were “scarce”), but the evidence package offered in Court was enough for the Justices to parse how the President exercised his powers, the bone of contention in Araullo.
If anything, such level of documentary detail, readily presented upon order, would be evidence of good faith on the part of the administration. Which is where our discussion now turns to the question of impeachment against Aquino, or calls for Abad to resign. Ever since last year, there has been an undercurrent of vindictiveness in the campaign against pork. Understandable, given the scale of the scandal, and the defenses offered by all the parties under attack – whether Senators Enrile, Estrada, or Revilla; or Aquino or Abad – that some feel are just attempts to deflect or delay the inevitable condemnation. And we feel that anger in critical op-eds, or the vitriol in the comment boards of news outfits and social media.
Unconstitutional but not criminal
Yet here we must demur. Legally and morally, to condemn requires proper evidence – culpable violation in case of impeachment, or the commission of the elements of the crime charged, in case of criminal prosecution. As Professor Randy David observed in his Inquirer column, reflecting on his arrest in the wake of President Arroyo’s Proclamation 1017, a policy being unconstitutional does not always mean the policy-maker being criminal – or culpable for that matter.
Justice Marvic Leonen pointed it out clearly in his separate opinion: “…to rule that a declaration of unconstitutionality per se is the basis for determining liability is a dangerous proposition. It is not proper that there are suggestions of administrative or criminal liability even before the proper charges are raised, investigated, and filed.”
If we keep insisting that government officials should always be held liable, especially criminally liable, for acts subsequently declared to be unconstitutional by the Court, then all government would be paralyzed by terror, unable to exercise such powers even granted to them by the Constitution, for fear of the next prosecution (whether truly aggrieved or politically motivated) thrown in their direction.
The Supreme Court may be the final arbiter of constitutionality, but by virtue of separation of powers, the Executive and Legislature get first crack at interpretation of the constitutionality of their acts (“contemporaneous construction”). Such interpretation is still open to challenge by any aggrieved party, but a principle of law is that constitutionality is generally presumed; its unconstitutionality must be proved. Until proven otherwise, the law grants the President or Congress the benefit of the doubt.
Absent further evidence on malicious or culpable acts of the Administration, it is enough that Araullo reestablishes the proper budget-handling borders of the separated powers of government.
Governance
This leads us to our next set of implications: governance. As pork had become ingrained in national politics, it had also wormed its way into governance, into the implementation of policy – and the spending of money on policy. PDAF again demonstrates how dependent public services, even those provided by NGOs, were on the largesse of legislators, such that the system could be manipulated with ghost NGOs. It feeds into the patronage politics of Philippine governance: that public services and the benefits every citizen receives, by law, from government is held hostage by the political elite, who can then extract staying power and the occasional graft from his constituency and budgetary allocation.
It should be noted that the same Secretary Abad critics are now wont to hang for DAP, is the same Secretary Abad who declared, in his Metrobank Professorial Chair lecture last year at the Ateneo School of Government, that the budget could be a tool for citizen empowerment (particularly though inclusive budgeting reforms introduced under his watch, such as bottom-up budgeting).
Weeding governance of bad budgetary habits strengthens good and responsive governance. Subjecting government allocations and allotments to stricter scrutiny and controls, thanks to the restoration of the borders, will ultimately help in restoring fiscal credibility to Philippine governance: the legislature authorizes where the money goes, the executive releases the money to such expenditures, with the citizenry participating at the budget planning, deliberation, and execution stages, either through their elected representatives or as citizen organizations.
Still, good governance has up to 27 years to catch up on a history of bad budgetary habits, since the restoration of traditional political dynamics following the fall of the Marcos regime. In the short term, government and citizenry both will have to break some of those habits: congressionally-“branded” scholarships and free clinics; the basketball courts and multi-purpose halls, that seem to be the low-hanging fruit of GAA allocations to public works.
Padrino system
There will likely be a painful adjusting period as constituents suddenly find themselves without a padrino, learning instead political habits of interest aggregation, interfacing with representatives and bureaucrats, of leveraging policy planning and execution to their benefit. As our colleagues have found in the G-Watch project, this learning process is more needed – and more painful – outside the cities, in the bailiwicks of trapo dynasties, and among a population so used to binyag-kasal-libing interaction with their political representatives.
Padrinos and trapo dynasties may seem more the terrain of Congress, but Abad’s concept of budget-as-empowering is sorely needed in Malacañang as well. Keynesian economics does hold that government spending does have a stimulus effect on the economy – Justice Leonen’s concurrence to Araullonoted this; exemplified by the World Bank report cited in the majority that found DAP to have contributed 1.3% to the 2011 gross domestic product growth.
Yet a dependence on DAP as a stimulus tool may yet breed dependence on executive “augmentations” in the name of economic growth.
In the earlier-referred Metrobank lecture, Abad had rightly described the national budget as an arena of struggle among competing interests – but heretofore that struggle and those interests were assumed to be in congressional deliberation, not executive execution. This is the danger implied in Araullo’s finding that augmentations made outside of GAA line items were unconstitutional, as were cross-border releases to Congress.
The accusation that DAP may have been used to secure the votes needed for Chief Justice Renato Corona’s impeachment, or the RH Bill’s passage, stings the most in this regard. True or untrue (or simply very uncomfortable timing), it has become highly embarrassing for the Office of the President at the least. At most, it makes the Office of the President as much a padrino of his own constituency (e.g., Congress) as a local political lord.
Mitigating such dangers requires robust accountability. Araullo complementsBelgica by delineating, once and for all, the roles and functions of the branches of government in the budgetary process. It is easier to color within the lines, after all, when the lines themselves are clear.
Accountability
Judicial decisions alone, however, will not color between the lines, so to speak. Financial accountability is the reserve of the system of checks and balances among the branches of government (which Araullo and Belgica thankfully clarify), and of the Commission of Audit, its raison d’etre.
It also ought to be the resolve of citizens to watch over the effective and equitable expenditure of public funds through project monitoring, and working with government – a cause our school, the Ateneo School of Government, has championed through the social accountability framework.
However, there is something Malacañang ought to do now, in the wake ofAraullo. So far, what has been made public by court action were the DAP-related memos and subsequent documentation of the Office of the President. As noted in the ponencia, other documents remain to be revealed, such as the decision-making process behind DAP’s creation, and of course the proverbial paper trail of the money, especially once it left executive hands. This goes double for the releases to legislators, in case it can help clarify the paper trail in the PDAF cases on file now and later, and to clarify which personalities or programs may benefit from the doctrine of operative fact under a good-faith defense (as Justice Antonio Carpio cautions in his separate opinion).
We would like to repeat, however, that this exercise in accountability must not turn into an exercise of vindictiveness. Accountability based on threat (or at least threat alone), a climate of fear of the hangman’s noose, will not be sustainable. Where liabilities can be established, as Justice Leonen observed, there the proper cases may be filed (and if the travails of the PDAF prosecution team be instructive, then those liabilities must be thoroughly established).
But as with the Benhur Luy revelations, Araullo can help guide everyone’s hand in establishing a better structure of public finance management and accountability. Fully threshing out this promise is best left to a future article, but suffice to say that Araullo and Belgica mitigate, if not eliminate, the risks opened up by the earlier PHILCONSA ruling.
The administration’s habit of documentation, too, is a hopeful portent of practices to come, and a willingness of Aquino officials to further disclose the extents and consequences of DAP in the name of accountability and better governance design. (Besides, a working Keynesian stimulus is a good achievement, especially for an administration earlier criticized for dragging its feet on post-Arroyo government spending.)
Admit mistakes
And to help stimulate both accountability and discussions for governance redesign, here we must submit unsolicited, but hopefully useful, advice for the administration, to tone down the self-righteous defensiveness.
Araullo, as well as Aquino’s forthcoming submission of the requested evidences, already point to good faith exercised in the execution of DAP. The presidential prerogative for constitutional augmentation has not been stripped. It is possible to look at the Supreme Court decision as a starting point for dialogue and reform. As with persons, it helps for governments to admit their mistakes as a step towards reconciliation and recovery. It also helps that the populace be ready to dialogue with its mistaken, but cooperative, government – but we have already stressed this point in previous paragraphs.
So where does the country go from here? How does the Philippine polity “go cold turkey”, bear the withdrawal symptoms from weaning itself from a dependence on pork barrel? Money, legitimately or illegitimately appropriated and disbursed, had been used in times past to grease the wheels of legislation and execution.
This is what Congress crowed about in the wake of Belgica, to take away the proverbial prop upon which their Houses stand. But the very picture of “political horse-trading” did not envision the exchange of money, especially the people’s money, but the aggregation and trading of political, economic, and social interests deliberated openly, for which the money will then be disbursed, and the reward is continued political (and practical) relevance to their constituencies (as well as their respective salaries).
Idealistic, we know – even America struggles with corrupt money politics and pork, though manifested in different forms (e.g., “earmarks”).
Yet it is high time we learned the habits of modern, accountable politics. Consider Araullo and Belgica a badly-needed intervention, a judicially-mandated stint in rehab that may finally give Philippine politics a chance to detoxify, shed some bad money habits, and come clean into the 21st century.
As with any intervention, it would help for the intervenors to approach their addict-subject with detachment and compassion; with sensitivity as well as resolve. – Rappler.com
EN BANC
[G.R. No. 136351. July 28, 1999]
JOEL G. MIRANDA, petitioner, vs. ANTONIO M. ABAYA and the COMMISSION ON ELECTIONS, respondents.
D E C I S I O N
MELO, J.:
Before us is a petition for certiorari with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction questioning the resolution of the Comelec En Bancdated December 8, 1998 in SPA Case No. 98-288 which disposed:
ACCORDINGLY, judgment is hereby rendered to:
1. AMEND and RECTIFY the dispositive portion of the Resolution of the Commission (First Division) in SPA No. 98-019 promulgated on May 5, 1998, to read as follows:
WHEREFORE, in view of the foregoing, the Commission (First Division) GRANTS the Petition. Respondent JOSE PEMPE MIRANDAs certificate of candidacy for the position of mayor of Santiago City in the May 11, 1998 national and local elections is hereby DENIED DUE COURSE AND/OR CANCELLED.
SO ORDERED.
2. ANNUL the election and proclamation of respondent JOEL G. MIRANDA as mayor of Santiago City in the May 11, 1998 election and CANCEL the Certificate of Canvass and Proclamation (C.E. form 25) issued therefor;
3. DIRECT THE City board of Canvassers of Santiago City to RECONVENE, PREPARE a new certificate of canvass & proclamation and PROCLAIM the winning candidate among those voted upon as the duly elected mayor of Santiago City in the May 11, 1998 election; and
4. DIRECT the Clerk of Court of the Commission to furnish copies of this Decision to the Office of the President of the Philippines; the Department of Interior and Local Government; the Department of Finance, and the Secretary of the Sangguniang Panglunsod of Santiago City.
SO ORDERED.
(pp. 90-91, Rollo.)
The aforementioned resolution dated December 8, 1998 reversed and set aside the earlier resolution of the First Division of the Comelec dated May 16, 1998, dismissing private respondents petition to declare the substitution of Jose Pempe Miranda by petitioner as candidate for the City of Santiagos mayoralty post void.
Briefly, the pertinent factual backdrop is summarized as follows:
On March 24, 1998, Jose Pempe Miranda, then incumbent mayor of Santiago City, Isabela, filed his certificate of candidacy for the same mayoralty post for the synchronized May 11, 1998 elections.
On March 27, 1998, private respondent Antonio M. Abaya filed a Petition to Deny Due Course to and/or Cancel Certificate of Candidacy (pp. 26-33, Rollo), which was docketed as SPA No. 98-019. The petition was GRANTED by the Comelec in its resolution dated May 5, 1998 (pp. 36-43, Rollo). The Comelec further ruled to DISQUALIFY Jose Pempe Miranda.
On May 6, 1998, way beyond the deadline for filing a certificate of candidacy, petitioner Joel G. Miranda filed his certificate of candidacy for the mayoralty post, supposedly as a substitute for his father, Jose Pempe Miranda.
During the May 11, 1998 elections, petitioner and private respondent vied for the mayoralty seat, with petitioner garnering 22,002 votes, 1,666 more votes than private respondent who got only 20, 336 votes.
On May 13, 1998, private respondent filed a Petition to Declare Null and Void Substitution with Prayer for Issuance of Writ of Preliminary Injunction and/or Temporary Restraining Order, which was docketed as SPA No. 98-288. He prayed for the nullification of petitioners certificate of candidacy for being void ab initio because the certificate of candidacy of Jose Pempe Miranda, whom petitioner was supposed to substitute, had already been cancelled and denied due course.
On May 16, 1998, Comelecs First Division dismissed SPA No. 98-288 motu proprio (pp. 57-61, Rollo). Private respondent moved for reconsideration (pp. 62-72, Rollo). On December 8, 1998, the Comelec En Banc rendered the assailed decision aforequoted, resolving to GRANT the motion for reconsideration, thus nullifying the substitution by petitioner Joel G. Miranda of his father as candidate for the mayoralty post of Santiago City.
On December 9, 1998, petitioner sought this Courts intercession via a petition for certiorari, with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction. On December 11, 1998, the Court resolved to issue a temporary restraining order and to require respondents to comment on the petition. On December 14, 1998, private respondent filed his Comment (pp. 140-187 and 188-234, Rollo) and on February 16, 1999, the Comelec, through its counsel, the Solicitor General, filed its Comment (pp. 254-265, Rollo). The Court required petitioner to file a consolidated reply within 10 days from notice, but petitioner twice asked for an extension of the period. Without granting the motions for extension of time to file consolidated reply, the Court decided to resolve the controversy in favor of petitioner.
Tersely, the issues in the present case may be summarized as follows:
1. Whether the annulment of petitioners substitution and proclamation was issued without jurisdiction and/or with grave abuse of discretion amounting to lack of jurisdiction; and
2. Whether the order of the Comelec directing the proclamation of the private respondent was issued with grave abuse of discretion amounting to lack of jurisdiction.
The Court finds neither lack of jurisdiction nor grave abuse of discretion attended the annulment of the substitution and proclamation of petitioner.
On the matter of jurisdiction, there is no question that the case at hand is within the exclusive original jurisdiction of the Comelec. As early as in Herrera vs. Baretto (25 Phil. 245 [1913]), this Court had occasion to apply the following principles:
Jurisdiction is the authority to hear and determine a causethe right to act in a case. Since it is the power to hear and determine, it does not depend either upon the regularity of the exercise of that power or upon the rightfulness of the decision made. Jurisdiction should therefore be distinguished from the exercise of jurisdiction. The authority to decide a cause at all, and not the decision rendered therein, is what makes up jurisdiction. Where there is jurisdiction over the subject matter, as we have said before, the decision of all other questions arising in the case is but an exercise of that jurisdiction.
(p. 251)
On the issue of soundness of the disposition in SPA No. 98-288, the Court finds that the Comelecs action nullifying the substitution by and proclamation of petitioner for the mayoralty post of Santiago City, Isabela is proper and legally sound.
Petitioner insists that the substitution at bar is allowed under Section 77 of the Omnibus Election Code which provides:
SEC. 77. Candidates in case of death, disqualification or withdrawal. If after the last day for the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affected in accordance with the preceding sections not later than mid-day of the day of the election. If the death, withdrawal or disqualification should occur between the day before the election and mid-day of election day, said certificate may be filed with any board of election inspectors in the political subdivision where he is a candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with the Commission.
Petitioner capitalizes on the fact that the Comelec ruled to disqualify Jose Pempe Miranda in the May 5, 1998 resolution and he heavily relies upon the above-quoted provision allowing substitution of a candidate who has been disqualified for any cause.
While there is no dispute as to whether or not a nominee of a registered or accredited political party may substitute for a candidate of the same party who had been disqualified for any cause, this does not include those cases where the certificate of candidacy of the person to be substituted had been denied due course and cancelled under Section 78 of the Code.
Expressio unius est exclusio alterius. While the law enumerated the occasions where a candidate may be validly substituted, there is no mention of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy. Under the foregoing rule, there can be no valid substitution for the latter case, much in the same way that a nuisance candidate whose certificate of candidacy is denied due course and/or cancelled may not be substituted. If the intent of the lawmakers were otherwise, they could have so easily and conveniently included those persons whose certificates of candidacy have been denied due course and/or cancelled under the provisions of Section 78 of the Code.
More importantly, under the express provisions of Section 77 of the Code, not just any person, but only an official candidate of a registered or accredited political party may be substituted.In Bautista vs. Comelec (G.R. No. 133840, November 13, 1998) this Court explicitly ruled that a cancelled certificate does not give rise to a valid candidacy (p.13).
A person without a valid certificate of candidacy cannot be considered a candidate in much the same way as any person who has not filed any certificate of candidacy at all can not, by any stretch of the imagination, be a candidate at all.
The law clearly provides:
SEC. 73. Certificate of candidacy No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein.
By its express language, the foregoing provision of law is absolutely mandatory. It is but logical to say that any person who attempts to run for an elective office but does not file a certificate of candidacy, is not a candidate at all. No amount of votes would catapult him into office. In Gador vs. Comelec (95 SCRA 431 [1980]), the Court held that a certificate of candidacy filed beyond the period fixed by law is void, and the person who filed it is not, in law, a candidate. Much in the same manner as a person who filed no certificate of candidacy at all and a person who filed it out of time, a person whose certificate of
candidacy is cancelled or denied due course is no candidate at all. No amount of votes should entitle him to the elective office aspired for.
The evident purposes of the law in requiring the filing of certificates of candidacy and in fixing the time limit therefor are: (a) to enable the voters to know, at least sixty days before the regular election, the candidates among whom they are to make the choice, and (b) to avoid confusion and inconvenience in the tabulation of the votes cast. For if the law did not confine the choice or election by the voters to the duly registered candidates, there might be as many persons voted for as there are voters, and votes might be cast even for unknown or fictitious persons as a mark to identify the votes in favor of a candidate for another office in the same election. (Monsale vs. Nico, 83 Phil. 758 [1949])
It is at once evident that the importance of a valid certificate of candidacy rests at the very core of the electoral process. It cannot be taken lightly, lest there be anarchy and chaos. Verily, this explains why the law provides for grounds for the cancellation and denial of due course to certificates of candidacy.
After having considered the importance of a certificate of candidacy, it can be readily understood why in Bautista we ruled that a person with a cancelled certificate is no candidate at all.Applying this principle to the case at bar and considering that Section 77 of the Code is clear and unequivocal that only an official candidate of a registered or accredited party may be substituted, there demonstrably cannot be any possible substitution of a person whose certificate of candidacy has been cancelled and denied due course.
Also, under ejusdem generis rule, where a general word or phrase (such as disqualification for any cause in this case) follows an enumeration of particular and specific words of the same class (such as the words dies and withdraws in the instant case) or where the latter follow the former, the general word or phrase is to be construed to include, or to be restricted to persons, things or cases akin to, resembling, or of the same kind or class as those specifically mentioned (see: Vera vs. Cuevas, 90 SCRA 379 [1979]). A deceased candidate is required to have duly filed a valid certificate of candidacy, otherwise his political party would not be allowed to field a substitute candidate in his stead under Section 77 of the Code. In the case of withdrawal of candidacy, the withdrawing candidate is required to have duly filed a valid certificate of candidacy in order to allow his political party to field a substitute candidate in his stead. Most reasonable it is then, under the foregoing rule, to hold that a valid certificate of candidacy is likewise an indispensable requisite in the case of a substitution of a disqualified candidate under the provisions of Section 77 of the Code, just as it is in the two previous instances.
Furthermore, interpretatio talis in ambiguis semper freinda est, ut eviatur inconveniens et absurdum, meaning, where there is ambiguity, such interpretation as will avoid inconvenience and absurdity shall in all cases be adopted. To include those disqualified candidates whose certificate of candidacy had likewise been denied due course and/or cancelled among those who may be substituted under Section 77 of the Omnibus Election Code, leads to the absurdity where a substitute is allowed to take the place of somebody who had not been a candidate in the first placea person who did not have a valid certificate of candidacy prior to substitution. Nemo dat quod non habet. What right can a non-candidate pass on to his substitute? Clearly, there is none because no one can give what he does not have.
Even on the most basic and fundamental principles, it is readily understood that the concept of a substitute presupposes the existence of the person to be substituted, for how can a person take the place of somebody who does not exist or who never was. The Court has no other choice but to rule that in all the instances enumerated in Section 77 of the Omnibus Election code, the existence of a valid certificate of candidacy seasonably filed is a requisite sine qua non.
All told, a disqualified candidate may only be substituted if he had a valid certificate of candidacy in the first place because, if the disqualified candidate did not have a valid and seasonably filed certificate of candidacy, he is and was not a candidate at all. If a person was not a candidate, he cannot be substituted
under Section 77 of the Code. Besides, if we were to allow the so-called substitute to file a new and original certificate of candidacy beyond the period for the filing thereof, it would be a crystalline case of unequal protection of the law, an act abhorred by our Constitution.
From the foregoing discussion it is evident that the controversy at hand is not a simple case of hair-splitting. A candidate may not be qualified to run for election but may have filed a valid certificate of candidacy. Another candidate may likewise be not qualified and at the same time not have a valid certificate of candidacy, for which reason, said certificate of candidacy is also cancelled and/or denied due course. Or, a third candidate may be qualified but, his certificate of candidacy may be denied due course and/or cancelled. This is possible because the grounds for disqualification (see: Omnibus Election Code, Section 68 Disqualifications) are totally separate and distinct from the grounds for cancellation and/or denying due course to a certificate of candidacy (Ibid., Section 69 nuisance candidates; and Section 78 material misrepresentation). Only the candidate who had a valid certificate of candidacy may be substituted.
The question to settle next is whether or not aside from Joel Pempe Miranda being disqualified by the Comelec in its May 5, 1998 resolution, his certificate of candidacy had likewise been denied due course and cancelled.
The Court rules that it was.
Private respondents petition in SPA No. 98-019 specifically prayed for the following:
WHEREFORE, it is respectfully prayed that the Certificate of Candidacy filed by respondent for the position of Mayor for the City of Santiago be not given due course and/or cancelled.
Other reliefs just and equitable in the premises are likewise prayed for.
(Rollo, p. 31; Emphasis ours.)
In resolving the petition filed by private respondent specifying a very particular relief, the Comelec ruled favorably in the following manner:
WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) GRANTS the Petition. Respondent JOSE Pempe MIRANDA is hereby DISQUALIFIED from running for the position of mayor of Santiago City, Isabela, in the May 11, 1998 national and local elections.
SO ORDERED.
(p.43, Rollo; Emphasis ours.)
From a plain reading of the dispositive portion of the Comelec resolution of May 5, 1998 in SPA No. 98-019, it is sufficiently clear that the prayer specifically and particularly sought in the petition was GRANTED, there being no qualification on the matter whatsoever. The disqualification was simply ruled over and above the granting of the specific prayer for denial of due course and cancellation of the certificate of candidacy. It may be stressed at this instance that the legal consequences of this May 5, 1998 resolution are independent of the issue of whether or not the Comelec was correct in reviving SPA No. 98-019 by consolidating it with SPA No. 98-288 in its December 8, 1998 resolution.
As regards the procedural matter in the present petition for certiorari, the following considerations are also in point:
It may be relevantly stressed that the review powers of the Supreme Court over decisions of the Constitutional Commissions, in general, and the Commission on Elections, in particular, were rather particularly defined and limited by the 1987 Constitution, as they were also circumscribed in the 1973 Constitution, to a petition for review on certiorari under Rule 65. In Dario vs. Mison(176 SCRA 84 [1989]), the Court held:
. . . We affirm the teaching of Aratuc vs. Commission of Elections, 88 SCRA 251 [1979]) as regards recourse to this Court with respect to rulings of the Civil Service Commissionwhich is that judgments of the Commission may be brought to the Supreme Court through certiorari alone, under Rule 65 of the Rules of Court.
In Aratuc, we declared:
It is at once evident from these constitutional and statutory modifications that there is a definite tendency to enhance and invigorate the role of the Commission on Elections as the independent constitutional body charged with the safeguarding of free, peaceful and honest elections. The framers of the new Constitution must be presumed to have definite knowledge of what it means to make the decisions, orders and rulings of the Commission subject to review by the Supreme Court. And since instead of maintaining that provision intact, it ordained that the Commissions actuations be instead brought to the Supreme Court on certiorari, We cannot insist that there was no intent to change the nature of the remedy, considering that the limited scope of certiorari, compared to a review, is well known in remedial law.
x x x
It should also be noted that under the new Constitution, as under the 1973 Charter, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari, which, as Aratuc tells us, technically connotes something less than saying that the same shall be subject to review by the Supreme Court, which in turn suggests an appeal by review by petition for review under Rule 45. Therefore, our jurisdiction over cases emanating from the Civil Service Commission is limited to complaints of lack or excess of jurisdiction or grave abuse of discretion tantamount to lack or excess of jurisdiction, complaints that justify certiorari under Rule 65.
(pp. 111-112)
To emphasize this procedural point, then Commissioner, later to become a distinguished Member of this Court, Mr. Justice Florenz Regalado responded to Commissioner Bernas query during the deliberations of the 1987 Constitution thusly:
FR. BERNAS. So, for purposes of the record, now, what is the intention of the Committee? What are the grounds for certiorari?
MR. REGALADO. The Committee refers specifically to a technical term of review by certiorari would be relying on the provision of Rule XLV [Should be LXV] of the Rules of Court that laid down the three grounds.
(I RECORD OF THE CONSTITUTIONAL COMMISSION, p. 539, as cited in Bernas, S.J, The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 Edition, p. 903.)
Thus, we have to be guided by jurisprudence relating to review by certiorari under Rule 65. Generally, certiorari lies where a court has acted without or in excess of jurisdiction or with grave abuse of discretion.
Without jurisdiction refers to an absolute want of jurisdiction; excess of jurisdiction refers to the case where the court has jurisdiction, but it transcended the same or acted without any statutory authority; grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction.
Even assuming for the sake of argument that the Comelec committed an error in the exercise of its jurisdiction in the present case, such is not within the province of certiorari, as a remedial measure, to correct. The only issue that may be taken cognizance of in the present case is whether or not the Comelec committed grave abuse of discretion in rendering the assailed decision.
It is well-settled that an act of a court or tribunal may only be considered to have been done in grave abuse of discretion when the same was performed in a capricious or whimsical exercise of judgment which is equivalent to lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform a duty enjoined or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility (Intestate Estate of Carmen de Luna vs. Intermediate Appellate Court, 170 SCRA 246 [1989]; Litton Mills vs. Galleon Traders, 163 SCRA 489 [1988]; Butuan Bay Export Co. vs. Court of Appeals, 97 SCRA 297 [1980]). An error of judgment committed in the exercise of its legitimate jurisdiction is not the same as grave abuse of discretion. An abuse of discretion is not sufficient by itself to justify the issuance of a writ of certiorari. The abuse must be grave and patent, and it must be shown that the discretion was exercised arbitrarily and despotically (Soriano vs. Atienza, 171 SCRA 284 [1989]).
Petitioner posits that the Comelec committed grave abuse of discretion when it annulled the substitution by and proclamation of petitioner, who under Section 77 of the Omnibus Election Code, was allowed to substitute for disqualified the candidate Jose Pempe Miranda. Petitioner also contends that it was an act of grave abuse of discretion for the Comelec to direct the proclamation of private respondent as the winning candidate in the May 11, 1998 election.
Petitioner further faults the Comelec for amending the dispositive portion of its resolution in SPA No. 98-019, which was not elevated to it on review, the same having already attained finality by then.
While it may be conceded that the Comelec stepped overboard and acted in excess of its jurisdiction when it motu proprio took cognizance of SPA No. 98-019, the decision in which was by then already final, it does not necessarily follow that the Comelec also committed grave abuse of discretion in resolving to grant private respondents motion for reconsideration by nullifying the substitution of petitioner Joel G. Miranda. Evidently, what is under review before us in this certiorari proceedings is SPA No. 98-288, and not SPA No. 98-019.
The question to answer is: will the Comelecs act which may constitute an excess of jurisdiction in SPA No. 98-019 be tantamount to an act of grave abuse of discretion in its judgment in the separate and distinct case of SPA No. 98-288 as well? Clearly, non sequitur. SPA No. 98-288 should be judged on its own accord, and not under the shadow of SPA No. 98-019.
Comelec committed no grave abuse of discretion in resolving SPA No. 98-288 in favor of private respondent. As earlier pointed out, the result in the dispositive portion of the December 8, 1998 resolution pertaining to the issues involved in SPA No. 98-288 is correct insofar as it annulled the election and proclamation of Joel G. Miranda. But even assuming for the sake of argument that it is not, still, this supposed error does not constitute grave abuse of discretion which may be annulled and reversed in the present petition for certiorari.
As earlier elucidated too, the crux of the Comelecs disposition in SPA No. 98-288 is the fact that former candidate Jose Pempe Mirandas certificate of candidacy was denied due course and cancelled. There is no dispute that the complaint or petition filed by private respondent in SPA No. 98-019 is one to deny due course and to cancel the certificate of candidacy of Jose Pempe Miranda (Rollo,
pp. 26-31). There is likewise no question that the said petition was GRANTED without any qualification whatsoever. It is rather clear, therefore, that whether or not the Comelec granted any further relief in SPA No. 98-019 by disqualifying the candidate, the fact remains that the said petition was granted and that the certificate of candidacy of Jose Pempe Miranda was denied due course and cancelled. In fact, it was not even necessary for the Comelec to reiterate this in its December 8, 1998 resolution. At best, the Comelecs motu proprio act of resurrecting SPA No. 98-019 should be treated as a mere surplusage. The fact that the certificate of candidacy of Joel Pempe Miranda was denied due course and cancelled did not depend on theen banc resolution dated December 8, 1998 of the Comelec. It stems from the fact that the May 5, 1998 resolution GRANTED private respondents Petition to Deny Due Course to and/or Cancel Certificate of Candidacy.
Verily, there is clear basis to find that there indeed was a blatant misrepresentation in the instant case and that it was a valid ground for the granting of the petition in SPA No. 98-019. Also, there appears to be sound basis to rule that a certificate of candidacy which has been denied due course on account of misrepresentation is, in every legal contemplation, no certificate at all. Ergo, there is nothing to substitute. If this judgment, rendered in the Comelecs rightful exercise of its jurisdiction in SPA No. 98-288 may, at all, be considered flawed, this blemish would only constitute an error of judgment and definitely not grave abuse of discretion. And, of course, errors of judgment may not be corrected by certiorari.
It may be noted that Commissioner Flores raised this supposed error in her dissenting opinion (pp. 93-99, Rollo). However, her legal opinion failed to convince the majority of the collegiate body and was not adopted by the Commission en banc. This Court in the present certiorari proceedings cannot substitute its judgment for that of the Comelec without violating the Constitution and the Rules of Court on the matter. The Comelecs decision is not subject to appeal to this Court. We may only strike out a Comelec decision if it was rendered without jurisdiction, in excess thereof, or with grave abuse of discretion amounting to lack of jurisdiction.
The Court cannot accede to the reasoning that this Court should now acquiesce and submit to the sovereign will of the electorate, as expressed by their votes. We should always be reminded that ours is a government of laws not of men. If this Court should fold its arms and refuse to apply the law at every clamor of the majority of the supposed constituency, where shall order and justice lie? Without the least intention to degrade, where shall people power end, and where shall law and justice begin? Would the apparent results of the canvassing of votes justify this Court in refusing to apply the law instead? The answers to the foregoing are obvious. The Court cannot choose otherwise but to exercise its sacred duty to uphold the Constitution and the laws of the Republic for and under which it exists. Besides, only history will discern whether Jose Pempe Mirandas filing of a certificate of candidacy for a 4th term and the intended substitution by his son was a ploy to perpetrate the Mirandas in power by way of a political dynasty disdained and abhorred by our Constitution which declared:
SEC. 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law.
(Article II, 1987 Constitution)
The invalidation of petitioners supposed substitution of Jose Pempe Miranda brings about the disqualification of petitioner in the mayoralty race. In this regard, what was said in Nolasco vs. Commission on Elections (275 SCRA 763 [1997]) may be recalled:
Our case law is now settled that in a mayoralty election, the candidate who obtained the second highest number of votes, in this case Alarilla, cannot be proclaimed winner in case the winning candidate is
disqualified. Thus, we reiterated the rule in the fairly recent case of Reyes v. Comelec (254 SCRA 514 [1996]), viz.:
x x x x x x x x x
We likewise find no grave abuse of discretion on the part of the Comelec in denying petitioner Julius O. Garcias petition to be proclaimed mayor in view of the disqualification of Renato U. Reyes.
That the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified is now settled. The doctrinal instability caused by see-sawing rulings has since been removed. In the latest ruling on the question, this Court said:
To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer.He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under the circumstances.
Garcias plea that the votes case for Reyes be invalidated is without merit. The votes cast for Reyes are presumed to have been cast in the belief that Reyes was qualified and for that reason can be treated as stray, void and meaningless. The subsequent finding that he is disqualified cannot retroact to the date of the elections as to invalidate the votes cast for him.
Consequently, respondent Comelec committed grave abuse of discretion insofar as it failed to follow the above doctrine, a descendant of our ruling in Labo v. Comelec (176 SCRA 1 [1989]).
(pp. 782-783)
Thus, the Comelec committed grave abuse of discretion insofar as it failed to follow the above-cited settled ruling consistently applied by this Court since the case of Labo vs. Comelec (176 SCRA 1 [1989]), Aquino vs. Comelec, 248 SCRA 400 [1995], Reyes vs. Comelec (254 SCRA 514 [1996]); and Nolasco vs. Comelec (275 SCRA 763 [1997]).
Even as the Court cannot accede to the contention that, in view of the election results pointing to petitioner as the electors choice for the mayoralty post, we should now close our eyes to the pertinent provisions of the Omnibus Election Code on the matter, nevertheless, the Court duly notes that the said election results point to the fact that private respondent was not then the choice of the people of Santiago City, Isabela. This Court has no authority under any law to impose upon and compel the people of Santiago City to accept private respondent as their mayor. The law on succession under section 44 of Republic Act 7160, otherwise known as the Local Government Code, would then apply. Said provision relevantly states:
SEC. 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice Mayor. (a) If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the governor, vice governor, mayor, or vice mayor, the highest ranking sanggunian member, or, in case of his permanent disability, the second highest ranking sanggunian member, shall become governor, vice governor, mayor or vice mayor, as the case may be.Subsequent vacancies in the said office shall be filled automatically by the other sanggunian members according to their ranking as defined herein.
x x x.
For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his office.
For purposes of succession as provided in this Chapter, ranking in the sanggunian shall be determined on the basis of the proportion of votes obtained by each winning candidate to the total number of registered voters in each district in the immediately preceding local election.
WHEREFORE, the petition is hereby partly DENIED, insofar as the Comelec ruling to ANNUL the election and proclamation of petitioner is being AFFIRMED. The petition is, however, hereby GRANTED so as to MODIFY the resolution of the Comelec in SPA No. 98-288 by DELETING the portion directing the city board of canvassers to reconvene and proclaim the winning candidate from among those voted upon during the May 11, 1998 elections. The law on succession should be enforced. Accordingly, the restraining order issued in this case is forthwith LIFTED.
SO ORDERED.
was never unseated during the term in question; he never ceased discharging his dutiesand responsibilities as mayor of San Vicente, Camarines Norte for the entire periodcovering the 1998-2001 term.Miranda v AbayaG.R. No. 136351 July 28, 1999FactsJose “Pempe” Miranda then incumbent mayor of Santiago City, Isabela, filed hiscertificate of candidacy for the same mayoralty post for the synchronized May 11, 1998elections. Three days after, a complaint to cancel certificate of candidacy was filedagainst him by Antonio Abaya which was granted. Shortly after the deadline for filing forcandidacy, Joel Miranda filed his certificate of candidacy as a substitute for PempeMiranda. Of course, Abaya filed a disqualification case against Joel Miranda for voidsubstitution. After a motion for reconsideration, COMELEC granted Abaya’s complaint.Hence, this petition. Issue1. Whether the annulment of petitioner’s substitution and proclamation wasissued without jurisdiction and/or with grave abuse of discretion amountingto lack of jurisdiction; and2. Whether the order of the Comelec directing the proclamation of the private
respondent was issued with grave abuse of discretion amounting to lack ofjurisdiction.HeldA disqualified candidate may only be substituted if he had a valid certificate ofcandidacy in the first place because, if the disqualified candidate did not have a valid andseasonably filed certificate of candidacy, he is and was not a candidate at all. If a personwas not a candidate, he cannot be substituted under Section 77 of the Code. Besides, ifwe were to allow the so-called “substitute” to file a “new” and “original” certificate ofcandidacy beyond the period for the filing thereof, it would be a crystalline case ofunequal protection of the law, an act abhorred by our Constitution.SYNOPSIS This is a petition forcertiorari with prayer for the issuance of a temporaryrestraining order and/or writ of preliminary injunction questioning the resolution of the ComelecEn Banc dated December 8, 1998 in SPA Case No. 98-288. Theaforementioned resolution of the Comelec reversed and set aside the earlierresolution of the First Division of Comelec dated May 16, 1998 dismissing privaterespondent's petition to declare the substitution of Jose ̀ Pempe' Miranda bypetitioner as candidate for the City of Santiago's mayoralty post void. The issues tobe resolved in this present petition are the following: 1.) Whether the annulment of petitioner's substitution and proclamation was issued without jurisdiction or withgrave abuse of discretion amounting to lack of jurisdiction; 2.) Whether the order of the Comelec directing the proclamation of the private respondent was issued withgrave abuse of discretion amounting to lack of jurisdiction. The Court found neither lack of jurisdiction nor grave abuse of discretion attendedthe annulment of the substitution and proclamation of petitioner. In particular, theCourt ruled that the Comelec's action nullifying the substitution by andproclamation of petitioner for the mayoralty post of Santiago City, Isabela is properand legally sound because herein petitioner cannot substitute a candidate whosecertificate of candidacy has been canceled and denied due course. Moreover,Comelec committed no grave abuse of discretion in resolving SPA No. 98-288 infavor of private respondent. The result in the dispositive portion of the December 8,1998 resolution pertaining to the issues involved in SPA No. 98-288 is correctinsofar as it annulled the election and proclamation of Joel G. Miranda. But evenassuming for the sake of argument that it is not, still, this supposed error did notconstitute grave abuse of discretion which may be annulled and reversed in thepresent petition forcertiorari. However, the Court ruled that the Comeleccommitted grave abuse of discretion when it ordered the city board of Canvassers of Santiago to reconvene, prepare a new certificate of canvass and proclamation andproclaim the winning candidate among those voted upon because this wasinconsistent with the ruling applied in the case ofLabo vs. Comelec, Aquino vs.Comelec, Reyes vs. Comelec and Nolasco vs. Comelec. Accordingly, the petition is
partly denied, insofar as the Comelec ruling to annul the election and proclamationof petitioner is affirmed. The petition is, however, granted so as to modify theresolution of the Comelec in SPA No. 98-288 by deleting the portion directing thecity board of canvassers to reconvene and proclaim the winning candidate fromamong those voted upon during the May 11, 1998 elections.SYLLABUS1 . P OL I T I CA L L A W; E L E CT I ON L A WS; OM N IBU S E L E CT I ON C ODE ; A CA N CE L LE D CERTIFICATE DOES NOT GIVE RISE TO A VALID CANDIDACY; CASE AT BAR. — Underthe express provisions of Section 77 of the Code, not just any person, but only "anofficial candidate of a registered or accredited political party" may be substituted. InBautista vs. Comelec (G.R. No. 133840, November 13, 1998) this Court explicitlyruled that"a cancelled certificate does not give rise to a valid candidacy" (p. 13). Aperson without a valid certificate of candidacy cannot be considered a candidate inmuch the same way as any person who has not filed any certificate of candidacy atall can not, by any stretch of the imagination, be a candidate at all. The law clearlyprovides: SEC. 73.Certificate of candidacy — No person shall be eligible for anyelective public office unless he files a sworn certificate of candidacy within theperiod fixed herein. By its express language, the foregoing provision of law isabsolutely mandatory. It is but logical to say that any person who attempts to runfor an elective office but does not file a certificate of candidacy, is not a candidate atall. No amount of votes would catapult him into office. InGador vs. Comelec (95SCRA 431 [1980]), the Court held that a certificate of candidacy filed beyond theperiod fixed by law is void, and the person who filed it is not, in law, a candidate.Much in the same manner as a person who filed no certificate of candidacy at all anda person who filed it out of time, a person whose certificate of candidacy is cancelledor denied due course is no candidate at all. No amount of votes should entitle him tothe elective office aspired for.2 . I D . ; I D . ; I D . ; P U R POS E OF F I L I N G TH E C E RT I F I CA TE OF C AN D I DA CY A ND I N FIXING THE TIME LIMIT THEREOF; CASE AT BAR. — The evident purposes of the lawin requiring the filing of certificates of candidacy and in fixing the time limit thereforare: (a ) to enable the voters to know, at least sixty days before the regular election,the candidates among whom they are to make the choice, and (b ) to avoidconfusion and inconvenience in the tabulation of the votes cast. For if the law didnot confine the choice or election by the voters to the duly registered candidates,there might be as many persons voted for as there are voters, and votes might becast even for unknown or fictitious persons as a mark to identify the votes in favorof a candidate for another office in the same election. (Monsale vs. Nico, 83 Phil.758 [1949]).3 . I D . ; I D . ; I D . ; TH E C AN D I DA T E WH O OBT A I NS TH E S E CON D H I G HE ST N U MBE R OF VOTES MAY NOT BE PROCLAIMED WINNER IN CASE THE WINNING CANDIDATEIS DISQUALIFIED; CASE AT BAR. — The invalidation of petitioner's supposedsubstitution of Jose "Pempe" Miranda brings about the disqualification of petitionerin the mayoralty race. In this regard, what was said inNolasco vs. Commission onElections (275 SCRA 763 [1997]) may be recalled. Our case law is now settled thatin a mayoralty election, the candidate who obtained the second highest number of votes, in this case Alarilla, cannot be proclaimed winner in case the winningcandidate is disqualified. Thus, we reiterated the rule in the fairly recent case of
Reyes v. Comelec (254 SCRA 514 [1996]), viz.: . . . ̀ We likewise find no graveabuse of discretion on the part of the Comelec in denying petitioner Julius O.Garcia's petition to be proclaimed mayor in view of the disqualification of Renato U.Reyes.T̀hat the candidate who obtains the second highest number of votes be proclaimed winner in case the winning candidate is disqualified is now settled. Thedoctrinal instability caused by seesawing rulings has since been removed. In thelatest ruling on the question, this Court said: To simplistically assume that thesecond placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer.He lost the elections. He was repudiated by either a majority or plurality of voters.He could not be considered the first among qualified candidates because in a fieldwhich excludes the disqualified candidate, the conditions would have substantiallychanged. We are not prepared to extrapolate the results under the circumstances.'Garcia's plea that the votes cast for Reyes be invalidated is without merit. Thevotes cast for Reyes are presumed to have been cast in the belief that Reyes wasqualified and for that reason can be treated as stray, void and meaningless. Thesubsequent finding that he is disqualified cannot retroact to the date of the electionsas to invalidate the votes cast for him.' Consequently, respondent Comeleccommitted grave abuse of discretion insofar as it failed to follow the above doctrine,a descendant of our ruling inLabo v. Comelec (176 SCRA 1 [1989]). Thus, theComelec committed grave abuse of discretion insofar as it failed to follow theabovecited settled ruling consistently applied by this Court since the case ofLabo vs.Comelec (176 SCRA 1 [1989]),Aquino vs. Comelec (48 SCRA 400 [1995]),Reyes vs. Comelec (254 SCRA 514 [1996]), andNolasco vs. Comelec (275 SCRA 763[1997]).SaITHC4 . I D . ; I D . ; I D . ; D I SQU A L I F I E D CA N D I DA T E MA Y ON L Y BE SU BST I T U TE D I F HE HAD A VALID CERTIFICATE OF CANDIDACY; CASE AT BAR. — A disqualifiedcandidate may only be substituted if he had avalid certificate of candidacy in thefirst place because, if the disqualified candidate did not have a valid and seasonablyfiled certificate of candidacy, he is and was not a candidate at all. If a person was nota candidate, he cannot be substituted under Section 77 of the Code. Besides, if wewere to allow the so-called "substitute" to file a "new" and "srcinal" certificate of candidacy beyond the period for the filing thereof, it would be a crystalline case of unequal protection of the law, an act abhorred by our Constitution. From theforegoing discussion it is evident that the controversy at hand is not a simple case of hair-splitting. A candidate may not be qualified to run for election but may havefiled a valid certificate of candidacy. Another candidate may likewise be not qualifiedand at the same time not have a valid certificate of candidacy, for which reason,said certificate of candidacy is also cancelled and/or denied due course. Or, a thirdcandidate may be qualified but, his certificate of candidacy may be denied duecourse and/or cancelled. This is possible because the grounds for disqualification(see: Omnibus Election Code, Section 68 —Disqualifications ) are totally separateand distinct from the grounds for cancellation and/or denying due course to a
