MODULE 2

II. The Executive and Legislative Branches in Relation to the Judicial Branch

THE EXECUTIVE

Tanada v. Angara G.R. No. 118295 May 2. 1997

(Relationship between International Law and Municipal Law) PONENTE: Panganiban, J.

FACTS:

This case questions the constitutionality of the Philippines being part of the World Trade
Organization, particularly when President Fidel Ramos signed the Instrument of Ratification and
the Senate concurring in the said treaty.

Following World War 2, global financial leaders held a conference in Bretton Woods to discuss
global economy. This led to the establishment of three great institutions: International Bank for
Reconstruction and Development (World Bank), International Monetary Fund and International
Trade Organization.

PONENTE: Abad, J.

FACTS:

Ang v. Court of Appeals

G.R. No. 182835 April 20, 2010

After receiving from the accused Rustan via multimedia message service (MMS) a picture of a
naked woman with her face superimposed on the figure, Complainant filed an action against
said accused for violation of the Anti-Violence Against Women and Their Children Act or
Republic Act (R.A.) 9262.

The sender’s cellphone number, stated in the message, was 0921- 8084768, one of the
numbers that Rustan used. Irish surmised that he copied the picture of her face from a shot he
took when they were in Baguio in 2003. The accused said to have boasted that it would be easy
for him to create similarly scandalous pictures of her and threatened to spread the picture he
sent through the internet.

The trial court later found Rustan guilty of the violation of Section 5(h) of R.A. 9262. On
Rustan’s appeal to the Court of Appeals (CA), the latter rendered a decision affirming the RTC
decision. The CA denied Rustan’s motion for reconsideration in a resolution dated April 25,
2008. Thus, Rustan filed the present for review on certiorari.
ISSUES:

Whether or not the RTC properly admitted in evidence the obscene picture presented in the
case?

HELD:
 Yes. The Supreme Court affirms the decision of the CA.

Rustan claims that the obscene picture sent to Irish through a text message constitutes an
electronic document. Thus, it should be authenticated by means of an electronic signature, as
provided under Section 1, Rule 5 of the Rules on Electronic Evidence (A.M. 01-7-01-SC).

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However, the ITO failed to materialize. Instead, there was the General Agreement on Trades
and Tariffs. It was on the Uruguay Round of the GATT that the WTO was then
established.
 The WTO is an institution regulating trade among nations, including the reduction
of tariff and barriers.

Petitioners filed a case assailing the WTO Agreement for violating the mandate of the 1987
Constitution to “develop a self-reliant and independent national economy effectively controlled
by Filipinos, to give preference to qualified Filipinos and to promote the preferential use of
Filipino labor, domestic materials and locally produced goods.”

It is petitioners’ position that the “national treatment” and “parity provisions” of the WTO
Agreement “place nationals and products of member countries on the same footing as Filipinos
and local products,” in contravention of the “Filipino First” policy of the Constitution. They
allegedly render meaningless the phrase “effectively controlled by Filipinos.”

Petitioners argue that the “letter, spirit and intent” of the Constitution mandating “economic
nationalism” are violated by the so-called “parity provisions” and “national treatment” clauses
scattered in parts of WTO Agreement.

ISSUE:

W/N the provisions provisions of the WTO Agreement contravene Section 19, Article II and
Section 10 & 12, Artilce XII of the 1987 Constitution? – NO.

RULING:
 The provisions invoked are not self-executing. Said provisions merely guides in
the exercise of judicial review and in making laws.

Secs. 10 and 12 of Article XII should be read and understood in relation to the other sections in
said article, especially Sec. 1 and 13:
• A more equitable distribution of opportunities, income and wealth;

• A sustained increase in the amount of goods and services

• An expanding productivity as the key to raising the quality of life.
 The provisions in WTO
contains balancing provisions sufficient to allow the Senate to ratify the Philippine
concurrence in the WTO Agreement, thus it does not violate the constitution.

• The WTO Recognizes the need to protect weak economies

• Unlike in the UN where major states have permanent seats and veto powers in the Security
Council, in the WTO, decisions are made on the basis of sovereign equality, with each
member’s vote equal in weight.

• Specific WTO Provisos Protect Developing Countries
 • Tariff reduction – developed

countries must reduce at rate of 36%

in 6 years, developing 24% in 10 years

• Domestic susbsidy – developed countries must reduce 20% over six (6) years, developing
countries at 13% in 10 years

• Export subsidy – developed countries, 36% in 6 years; developing countries, 3/4ths of 36% in
10 years

• Constitution Does Not Rule Out Foreign Competition

. Encourages industries that are competitive in both domestic and 
 foreign markets 


. The Court will not pass upon the advantages and disadvantages of trade liberalization as an
economic policy. It will only perform its constitutional duty of determining whether the
Senate committed grave abuse of discretion 
 While sovereignty has traditionally been
deemed absolute and all- encompassing on the domestic level, it is however subject to
restrictions and limitations voluntarily agreed to by the Philippines, expressly or
impliedly, as a member of the family of nations. 
 In its Declaration of Principles and
State Policies, the Constitution "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." 
 By the doctrine of incorporation,
the country is bound by generally accepted principles of international law, which
are considered to be automatically part of our own laws. One of the oldest and most
 fundamental rules in international law is pacta sunt servanda — international
agreements must be performed in good faith. "A treaty engagement is not a mere moral
obligation but creates a legally binding obligation on the parties . . . A state which has
contracted valid international obligations is bound to make in its legislations such
modifications as may be necessary to ensure the fulfillment of the obligations
undertaken." 


Page 28 of 174

By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their
voluntary act, nations may surrender some aspects of their state power in exchange for greater
benefits granted by or derived from a convention or pact. After all, states, like individuals, live
with coequals, and in pursuit of mutually covenanted objectives and benefits, they also
commonly agree to limit the exercise of their otherwise absolute rights.

Discussion by Joaquin G. Bernas (An Introduction to Public International Law, 2002 ed.)

What is the traditional definition of international law?

It is a body of rules and principles of action which are binding upon civilized states in their
relations to one another.

What is the (modern) definition of international law according to the Third

Restatement?
 It is the law which deals with the conduct of states and of international
organizations and with their relations inter se, as well as with some of their relations with
persons, whether natural or juridical.

What is the Command Theory?

In this view, international law is not law because it does not come from a command of a
sovereign.

What is the Consensual Theory?

Under this theory, international law derives its binding force form the consent of the states.

What is the Natural Law Theory?

This theory posits that law is derived by reason form the nature of man. International law is said
to be an application of natural reason to the nature of the state-person.

What is Public International Law?

This governs the relationships between and among states and also their relations with
international organizations and individual persons.

What is Private International Law?

It is really domestic law which deals with cases where foreign law intrudes in the domestic
sphere where there are questions of the applicability of foreign law or the role of foreign courts.

How are sources of international law classified?

(1) Formal and (2) Material

What are formal sources?

It refer to the various processes by which rules come into existence.

What are material sources?

It is concerned with the substance and content of the obligation.

Sometimes referred to as the evidence if international law.

What are the sources of international law?

(1) International conventions, whether general or particular, establishing rules expressly

recognized by contesting states;

(2) International custom, as evidence of a general practice accepted as law;

(3) General principles of law recognized by civilized nations;
 (4) Judicial decisions and
teachings of the most highly qualified publicists of the various nations, as subsidiary means for
the determination of

rules of law.

What is Custom or Customary International Law?

It means a general and consistent practice of states followed by them from a sense of legal
obligation.

What are the 2 basis elements of Custom?

. (1) Material Factor (usus) – how the states behave 


. (2) Subjective Factor – why they behave the way they do 


What are the elements of usus?

. (1) duration, 


. (2) consistency, and 


. (3) generality of practice of states. 


What is Opinio Juris?

It is the belief that a certain form of behavior is obligatory.

Would dissenting states be bound by custom?

Yes, unless they had consistently objected to it while the custom was merely in the process of
formation.

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Who has the burden of proving the existence of opinion juris? The existence of opinio juris
is a matter of proof. The burden of proving its existence falls on the state claiming it.

What is Instant Custom?

It comes about as a spontaneous activity of a great number of states supporting a specific line
of action.

If a treaty comes later than a particular custom, as between the parties to the treaty,
which should prevail?
 The treaty.

If a later treaty is contrary to a customary rule that has the status of jus cogens, which
will prevail?
 Custom will prevail.

Is Equity a source of law?

Yes. The Permanent Court of Justice had occasion to use equity as a source of law in one case.
Equity, when accepted, is an instrument whereby convetional or customary law may be
supplemented or modified in order achieve justice.

What is a Soft Law?

It is an international agreement no concluded as treaty and threfore not covered by the Vienna
Convention on the Law of Treaties.
What is the dualist or pluralist theory?

It holds that international law and mnicpal law are essentially different from each other.

How does municipal and international law differ with regard to what they
regulate?
 Municipal law regulates relations between individual persons under the state
whereas international law regulates relations between states.

For dualists, when international law and municipal law conflict, which must
prevail?
 Municipal Law must prevail.

What is the monistic theory or monism?

Under this theory, international law and domestic law belong to only one system of law.

How does international law become part of domestic law for dualists?

(1) Doctrine of transformation. – for international law to become part of domestic law, it must be
expressly and specifically transformed into domestic law through the appropriate constitutional
machinery.

(2) Doctrine of incorporation, - the law of natons, wherever any question arises which is properly
the object of its jurisdiction, is here adopted in its full extent by the common law, and it is held to
be part of the law of the land.

Which law prevails in a domestic court?

Municipal Law for the domestic courts are bound to apply the local law.

Which law prevails in an international tribunal.

International Law. It is an established principle that, before an international tribunal, a state may
not plead its own law as an excuse for failure to comply with international law.

Should a conflict arise between an international agreement and the Philippine

Constitution, which should prevail?
 Philippine Constitution. The treaty would not be valid
and operative as domestic law.

FACTS:

Marcos v. Manglapus

G.R. No. 88211 15 September 1989

(What is the Scope of Executive Power, Express, Implied/Residual Power)

Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to die. But
Mrs. Aquino, considering the dire consequences

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to the nation of his return at a time when the stability of government is threatened from various
directions and the economy is just beginning to rise and move forward, has stood firmly on the
decision to bar the return of Mr. Marcos and his family.

This petition for mandamus and prohibition asks the Courts to order the respondents to issue
travel documents to Mr. Marcos and the immediate members of his family and to enjoin the
implementation of the President's decision to bar their return to the Philippines.

The petitioners contend that the President is without power to impair the liberty of abode of the
Marcoses because only a court may do so “within the limits prescribed by law.” Nor may the
President impair their right to travel because no law has authorized her to do so. They advance
the view that before the right to travel may be impaired by any authority or agency of the
government, there must be legislation to that effect.

The petitioners further assert that under international law, the right of Mr. Marcos and his family
to return to the Philippines is guaranteed.

The Universal Declaration of Human Rights provides:
 o. Article 13. (1) Everyone has the right
to freedom of movement

and residence within the borders of each state.
 o. (2) Everyone has the right to leave any
country, including his

own, and to return to his country.

Likewise, the International Covenant on Civil and Political Rights, which had been ratified by
the Philippines, provides:
 Article 12

1) Everyone lawfully within the territory of a State shall, within that territory, have the right to
liberty of movement and freedom to choose his residence.
 2) Everyone shall be free to leave
any country, including his own.

3) The above-mentioned rights shall not be subject to any restrictions except those which are
provided by law, are necessary to protect national security, public order (order public), public
health or morals or the rights and freedoms of others, and are consistent with the other rights
recognized in the present Covenant.

4) No one shall be arbitrarily deprived of the right to enter his own country.
Respondents argue for the primacy of the right of the State to national security over individual
rights. Respondents also point out that the decision to ban Mr. Marcos and his family from
returning to the Philippines for reasons of national security and public safety has international
precedents. Rafael Trujillo of the Dominican Republic, Anastacio Somoza, Jr. of Nicaragua were
among the deposed dictators whose return to their homelands was prevented by their
governments.

ISSUE/S:

. (1) WhetherornottherightofMr.Marcosandhisfamilytoreturnto the Philippines is guaranteed.

(No) 


. (2) Whether or not the President has the power under the Constitution, to bar the Marcoses
from returning to the Philippines. (Yes) 


. (3) Whetherornottheissueconstitutesapoliticalquestionwhichis beyond the jurisdiction of the

Court to decide. (No) 


HELD/RATIO:

It must be emphasized that the individual right involved is not the right to travel from the
Philippines to other countries or within the Philippines. These are what the right to travel would
normally connote. Essentially, the right involved is the right to return to one's country, a totally
distinct right under international law, independent from although related to the right to travel.

Thus, the Universal Declaration of Human Rights and the International Covenant on Civil and
Political Rights treat the right to freedom of movement and abode within the territory of a state,
the right to leave a country, and the right to enter one's country as separate and distinct rights.

The Declaration speaks of the "right to freedom of movement and residence within the borders
of each state" [Art. 13(1)] separately from the "right to leave any country, including his own, and
to return to his country." [Art. 13(2).]

On the other hand, the Covenant guarantees the "right to liberty of movement and freedom to
choose his residence" [Art. 12(1)] and the right to "be free to leave any country, including his
own," [Art. 12(2)] which rights may be restricted by such laws as "are necessary to protect
national security, public order, public health or morals or the separate rights and freedoms of
others." [Art. 12(3)] as distinguished from the "right to enter his own country" of which one
cannot be "arbitrarily deprived." [Art. 12(4).]

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It would therefore be inappropriate to construe the limitations to the right to return to one's
country in the same context as those pertaining to the liberty of abode and the right to travel.

The right to return to one's country is not among the rights specifically guaranteed in the Bill of
Rights, which treats only of the liberty of abode and the right to travel, but it is our well-
considered view that the right to return may be considered, as a generally accepted principle of
international law and under our Constitution, is part of the law of the land [Art. II, Sec. 2 of the
Constitution.] However, it is distinct and separate from the right to travel and enjoys a different
protection under the International Covenant of Civil and Political Rights, i.e., against being
"arbitrarily deprived" thereof [Art. 12 (4).]

Further, the Court holds the view that although the 1987 Constitution imposes limitations on the
exercise of specific powers of the President, it maintains intact what is traditionally considered
as within the scope of "executive power." Corollarily, the powers of the President cannot be said
to be limited only to the specific powers enumerated in the Constitution. In other words,
executive power is more than the sum of specific powers so enumerated,

It has been advanced that whatever power inherent in the government that is neither legislative
nor judicial has to be executive.

To the President, the problem is one of balancing the general welfare and the common good
against the exercise of rights of certain individuals. The power involved is the President's
residual power to protect the general welfare of the people. It is founded on the duty of the
President, as steward of the people.

More particularly, this case calls for the exercise of the President's powers as protector of the
peace. [Rossiter, The American Presidency.] The power of the President to keep the peace is
not limited merely to exercising the commander-in-chief powers in times of emergency or to
leading the State against external and internal threats to its existence.

The President is not only clothed with extraordinary powers in times of emergency, but is also
tasked with attending to the day-to-day problems of maintaining peace and order and ensuring
domestic tranquility in times when no foreign foe appears on the horizon.

The present Constitution limits resort to the political question doctrine and broadens the scope
of judicial inquiry into areas which the Court, under previous constitutions, would have normally
left to the political departments to decide.

There is nothing in the case before us that precludes our determination thereof on the political
question doctrine. When political questions are involved, the Constitution limits the
determination to whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the official whose action is being questioned.

Accordingly, the question for the Court to determine is whether or not there exist factual bases
for the President to conclude that it was in the national interest to bar the return of the Marcoses
to the Philippines. If such postulates do exist, it cannot be said that she has acted, or acts,
arbitrarily or that she has gravely abused her discretion in deciding to bar their return.

As divergent and discordant forces, the enemies of the State may be contained. The military
establishment has given assurances that it could handle the threats posed by particular groups.
But it is the catalytic effect of the return of the Marcoses that may prove to be the proverbial
final straw that would break the camel's back.

With these before her, the President cannot be said to have acted arbitrarily and capriciously
and whimsically in determining that the return of the Marcoses poses a serious threat to the
national interest and welfare and in prohibiting their return.

Lagman v. Medialdea

G.R. No. 231658 4 July 2017 Del Castillo, J:

(Executive’s Calling Out Power, Power to Declare Martial Law, Power to Suspend the
Privilege of the Writ of Habeas Corpus)

FACTS:

Starting May 23, 2017, and for a period not exceeding 60 days, President Rodrigo Roa Duterte
issued Proclamation No. 216 (Proclamation) declaring a state of martial law and suspending the
privilege of the writ of habeas corpus in the whole of Mindanao. The President then submitted a

Page 32 of 174

Report which was required by the constitution based on the factual basis of the Proclamation
which stated that for decades, Mindanao has been plagued by rebellious groups and lawless
violence. The Proclamation came into being because of the siege of Marawi by the Maute
group, one of the aforesaid rebellious groups. The Report then highlighted the strategic location
of Marawi City and the crucial and significant role it plays in Mindanao, and the Philippines as a
whole. In addition, the Report pointed out the possible tragic repercussions once Marawi City
falls under the control of the lawless groups. Later on, both the Senate and the House of
Representatives both declared their full support for the declaration of Martial Law. There are
three main petitions in this case:

1. Lagman Petition

. a) Declaration of martial law has no sufficient factual basis because there is no rebellion or
invasion in Marawi City or in any part of Mindanao. 

. b) Declaration of martial law has no sufficient factual basis because the President's Report
contained"false, inaccurate, contrived and hyperbolic accounts. 


. c) The declaration of martial law has no sufficient factual basis because of the inclusion of
events in the Report which had long been resolved. 


. d) No sufficient factual basis considering that the President acted alone and did not consult
the military establishment or any ranking official 


. e) No sufficient factual basis because it was shown that military was able to pre-empt the
Maute group in their plan to take over Marawi 


2. Cullamat Petition

a) Seeks the nullification of Proclamation No. 216 fo being unconstitutional because it lacks
sufficient factual basis that there i rebellion in Mindanao and that public safety warrants its
declaration.

3. Mohamad Petition

a) Claims that Martial law is a solution of last resort and should be resorted to only after the
exhaustion of other remedies.

ISSUE/S:

(1) WhetherornotthecallingoutpowerofthePresidentwasvalidly exercised. (YES)

(2) Whether or not there is sufficient factual basis and the requirements for public safety were
sufficient for the declaration of Martial Law. (YES)

(3) Whether or not there is sufficient factual basis and the requirements for public safety were
sufficient for the declaration for the suspension of the privilege of the writ of habeas Corpus.
(YES)

HELD/RATIO:
 FIRST ISSUE:
 The President as the Commander-in-Chief wields the

extraordinary powers of:

a) Calling out the armed forces;
 b) Suspending the privilege of the writ of habeas corpus; and
c) Declaring martial law. These powers may be resorted to only

under specified conditions.

The president may resort to the power of the calling out of the armed forces whenever it
becomes necessary to prevent or suppress lawless violence, invasion, or rebellion. Prior to
Proclamation No. 216 or the declaration of martial law on May 23, 2017, the President had
already issued Proclamation No. 55 on September 4, 2016, declaring a state of national
emergency on account of lawless violence in Mindanao. It was then stated in the case that from
the intent of the framers of the Constitution, both Congress and the Court do not have the power
to interfere with the decision-making power of the President. In other words, they have no power
to force the President to choose which of the three extraordinary powers to wield when
responding to a crisis. Thus, it was deemed that the exercise of this power by the President was
indeed valid.

SECOND AND THIRD ISSUE:

Section 18, Article VII itself sets the parameters for determining the sufficiency of the factual
basis for the declaration of martial law and/or the suspension of the privilege of the writ of
habeas corpus, "namely (1) actual invasion or rebellion, and (2) public safety requires the
exercise of such power. For rebellion to exist, the following elements must be present, to wit: "(l)
there is a (a) public uprising and (b) taking arms against the Government; and (2) the purpose of
the uprising or movement is either (a) to remove from the allegiance to the Government or its
laws: (i) the territory of the Philippines or any part thereof; or (ii) any body of land, naval, or other
armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of
their powers and prerogatives. Examples of the factual details which occurred in Marawi which
led the President to declare Martial Law and suspend the writ are as follows:

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. 1) Burning of government and private property. 


. 2) Establishment of checkpoints. 


. 3) Hoisting of the ISIS flag. 


. 4) Takeover of a hospital. 


. 5) Attacks on various facilities. 


. 6) Taking of hostages. 


. 7) Links and potential alliances with other terrorist groups. 


A review of the aforesaid facts similarly leads the Court to conclude that the President, in
issuing Proclamation No. 216, had sufficient factual basis tending to show that actual rebellion
exists. The President's conclusion, that there was an armed public uprising, the culpable
purpose of which was the removal from the allegiance of the Philippine Government a portion of
its territory and the deprivation of the President from performing his powers and prerogatives,
was reached after a consideration of the facts.

In fine, the President satisfactorily discharged his burden of proof. The declaration of Martial
Law over the whole of Mindanao is allowed since The 1987 Constitution grants to the President,
as Commander-in-Chief, the discretion to determine the territorial coverage or application of
martial law and the suspension of the privilege of the writ of habeas corpus. This is both an
acknowledgement and a recognition that it is the Executive Department, particularly the
President as Commander -in-Chief, who is the repository of vital, classified, and live information
necessary for and relevant in calibrating the territorial application of martial law and the
suspension of the privilege of the writ of habeas corpus. It, too, is a concession that the
President has the tactical and military support, and thus has a more informed understanding of
what is happening on the ground.

Although the President is not required to impose martial law only within the Court's compound
because it is where the armed public uprising actually transpired, he may do so if he sees fit.

At the same time, however, he is not precluded from expanding the coverage of martial law
beyond the Court's compound. After all, rebellion is not confined within predetermined bounds.

Petition denied. The Court upholds the validity of all the exercised powers of the President.

U.S. v. Nixon

418 US 683
 24 July 1974
 Burger, J.
 (The Concept of Executive Privilege)

FACTS:

In light of the watergate scandal, upon motion of the Special Prosecutor, a subpoena duces
tucem was issued pursuant to the rules of court where it required the production of certain tapes
between Nixon and his advisers.

The President released them but later filed a motion to quash where such was accompanied by
a claim of executive privilege.

The President also challenged the jurisdiction of the court based on a contention that the
dispute was nonjusticiable because it was between the Special Prosecutor and the Chief
Executive and hence "intra-executive" in character.

Since the Executive Branch has exclusive authority and absolute discretion to decide whether to
prosecute a case, it is contended that a President's decision is final in determining what
evidence is to be used in a given criminal case. (Note: The president was the one who
appointed the Special Prosecutor to investigate the case)

ISSUE/S:
(1) WhetherornotthePresident'srighttosafeguardcertaininformation, using his "executive
privilege", entirely immune from judicial review. (No)

(2) WhetherornottheJudiciaryhavejurisdictionoverthecase.(Yes)

HELD/RATIO:

FIRST ISSUE:

The Court held that neither the doctrine of separation of powers, nor the generalized need for
confidentiality of high-level communications, without more, can sustain an absolute, unqualified,
presidential privilege. The Court granted that there was a limited executive privilege in areas of
military or diplomatic affairs, but gave preference to "the fundamental demands of due process
of law in the fair administration of justice." Therefore, the president must obey the subpoena and
produce the tapes and documents.

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SECOND ISSUE

The mere assertion of a claim of an "intra-branch dispute," without more, has never operated to
defeat federal jurisdiction; justiciability does not depend on such a surface inquiry. The issue is
the production or nonproduction of specified evidence deemed by the Special Prosecutor to be
relevant and admissible in a pending criminal case. It is sought by one official of the Executive
Branch within the scope of his express authority; it is resisted by the Chief Executive on the
ground of his duty to preserve the confidentiality of the communications of the President.
Whatever the correct answer on the merits, these issues are "of a type which are traditionally
justiciable." In light of the uniqueness of the setting in which the conflict arises, the fact that both
parties are officers of the Executive Branch cannot be viewed as a barrier to justiciability.

petitioner did not appear before respondent Committees. On November 22, 2007, the
respondent Committees issued the show-cause letter requiring him to explain why he should not
be cited in contempt. On November 29, 2007, in petitioners reply to respondent Committees, he
manifested that it was not his intention to ignore the Senate hearing and that he thought the only
remaining questions were those he claimed to be covered by executive privilege. Respondent
Committees found petitioners explanations unsatisfactory. They issued an order citing petitioner
in contempt of respondent Committees and ordering his arrest and detention at the Office of the
Senate Sergeant-at-Arms until such time that he would appear and give his testimony.

The petitioner moved for reconsideration insisting that he had not shown any contemptible
conduct worthy of contempt and arrest. Petitioner filed a Supplemental Petition for Certiorari and
granted by the Court on the ground that, first, the communications elicited by the three (3)
questions were covered by executive privilege; and second, respondent Committees committed
grave abuse of discretion in issuing the contempt order.
ISSUE/S:

(1) Whether the three questions posed by Congress to Romulo Neri are covered by the
executive privilege and therefore should not be disclosed to them. (Yes)

(2) Whetherthereisarecognizedpresumptivepresidential communications privilege in our legal

system. (Yes)

(3) Whether the respondent Committees have shown that the communications elicited by the
three (3) questions are critical to the exercise of their functions. (No)

(4) Whether the respondent Committees committed grave abuse of discretion in issuing the
contempt order. (Yes)

HELD/RATIO:

FIRST ISSUE:

The three questions posed by Congress to Romulo Neri are covered by the executive privilege
and therefore should not be disclosed to the Congress. The Supreme Court ruled that the
executive privilege which is the Presidential communication privilege pertains to
communications, documents or other materials that reflect presidential decision-making and
deliberations and that the President believes should remain confidential. Presidential
communications privilege applies to decision- making of the President. The elements of the
Presidential Communication Privilege are, to wit:

FACTS:

Neri v. Senate

G.R. No. 180643
 25 March 2008 Leonardo-De Castro, J.
 (The Concept of Executive
Privilege)

On September 26, 2007, petitioner, Romulo Neri, appeared before respondent Committees and
testified for 11 hours on matters concerning the National Broadband Project (the NBN Project),
a project awarded by the Department of Transportation and Communications (DOTC) to Zhong
Xing Telecommunications

Equipment (ZTE). Petitioner disclosed that then Commission on Elections (COMELEC)

Chairman Benjamin Abalos offered him P200 Million in exchange for his approval of the NBN
Project. He further narrated that he informed President Gloria Macapagal Arroyo (President
Arroyo) of the bribery attempt and that she instructed him not to accept the bribe. However,
when probed further on President Arroyo and petitioners discussions relating to the NBN
Project, petitioner refused to answer, invoking executive privilege on whether President Arroyo
followed up the NBN Project, whether she directed him to prioritize it, and whether she directed
him to approve it. Respondent Committees persisted in knowing petitioners answers to these
three questions by requiring him to appear and testify once more on November 20, 2007.

On November 15, 2007, Executive Secretary Eduardo R. Ermita wrote to respondent

Committees and requested them to dispense with petitioners testimony on the ground of
executive privilege. On November 20, 2007,

Page 35 of 174

a.) Theprotectedcommunicationmustrelatetoa“quintessentialand non-delegable presidential

power.”

b.) The communication must be authored or “solicited and received” by a close advisor of the
President or the President himself. The judicial test is that an advisor must be in “operational
proximity” with the President.

c.) The presidential communications privilege remains a qualified privilege that may be
overcome by a showing of adequate need, such that the information sought “likely contains
important evidence” and by the unavailability of the information elsewhere by an appropriate
investigating authority.

In this case, this Court, in upholding executive privilege with respect to three (3) specific
questions, did not in any way curb the public’s right to information or diminish the importance of
public accountability and transparency and there is no adequate showing of a compelling need
that would justify the limitation of the privilege and of the unavailability of the information
elsewhere by an appropriate investigating authority. Thus, the three questions posed by
Congress to Romulo Neri are covered by the executive privilege and therefore should not be
disclosed to the Congress since it did not entail the right to information of the public or diminish
the public accountability and transparency’s significance and there is no showing of compelling
need for disclosure of the information covered by executive privilege.

SECOND ISSUE:

There is a recognized presumptive presidential communications privilege in our legal system.

The Supreme Court ruled that there are certain types of information which the government may
withhold from the public, that there is a governmental privilege against public disclosure with
respect to state secrets regarding military, diplomatic and other national security matters; and
that the right to information does not extend to matters recognized as privileged information
under the separation of powers, by which the Court meant Presidential conversations,
correspondences, and discussions in closed-door Cabinet meetings. Here, it was the President
herself, through Executive Secretary Ermita, who invoked executive privilege on a specific
matter involving an executive agreement between the Philippines and China, which was the
subject of the three (3) questions propounded to petitioner Neri in the course of the Senate
Committees investigation. Hence, there is a recognized presumptive presidential
communications privilege in our legal system since there are only certain types of information
which the government may withhold from the public with respect to military, diplomatic and other
national security matters.

THIRD ISSUE:

The respondent Committees failed to show that the communications elicited by the three (3)
questions are critical to the exercise of their functions. The Supreme Court ruled that the
presumption in favor of Presidential communications puts the burden on the respondent Senate
Committees to overturn the presumption by demonstrating their specific need for the information
to be elicited by the answers to the three (3) questions subject of this case, to enable them to
craft legislation. Here, there is simply a generalized assertion that the information is pertinent to
the exercise of the power to legislate and a broad and non-specific reference to pending Senate
bills. It is not clear what matters relating to these bills could not be determined without the said
information sought by the three (3) questions. Therefore, the respondent Committees failed to
show that the communications elicited by the three (3) questions are critical to the exercise of
their functions since there is only a generalized assertion that the information is pertinent to the
exercise of the power to legislate and a broad and non-specific reference to pending Senate
bills.

FOURTH ISSUE:

Therespondent Committees committed grave abuse of discretion in issuing the contempt order.
The Supreme Court held that accused should have been adequately informed what matters are
to be covered by the inquiry. It will also allow them to prepare the pertinent information and
documents. Another thing, while it is true that this Court must refrain from reviewing the internal
processes of Congress, as a co-equal branch of government, however, when a constitutional
requirement exists, the Court has the duty to look into Congress compliance therewith. We
cannot turn a blind eye to possible violations of the Constitution simply out of courtesy. In this
case, the petitioners request a copy of questions the committee did not grant it and Subpoena
Ad Testificandum made no specific reference to any pending Senate bill. It did not also inform
petitioner of the questions to be asked. As it were, the subpoena merely commanded him to
testify on what he knows relative to the subject matter under inquiry. Hence, the respondent
Committees committed grave abuse of discretion in issuing the contempt order since there was
no copy of questions before the inquiry and the Subpoena Ad Testificandum was generally
issued.

Soliven v. Makasiar

G.R. No. 82585 14 November 1988

Page 36 of 174
FACTS:

Per Curiam
 (Immunity of the President from Suit)

This privilege of immunity from suit only pertains to the President by virtue of the office and may
be invoked only be the holder of the office, and not by any other person in the President’s
behalf.

Consequently, Beltran, in this criminal case, in which the President is the complainant cannot
raise the presidential privilege as a defense to prevent the case from proceeding against the
accused.

PROCEDURAL ISSUES
 FIRST ISSUE:
 Due process of law does not require that the
respondent in a criminal case actually file his counter-affidavits before the preliminary
investigation is deemed completed. All that is required is that the respondent be given the
opportunity to submit counter-affidavits if he is so minded.

This is negated by the fact that instead of submitting his counter-affidavits, he filed a “Motion to
Declare Proceedings Closed”, in effect, waiving his right to refute the complaint by filing counter-
affidavits.

SECOND ISSUE:

This calls for an interpretation of the constitutional provision on the issuance of warrants of
arrest:

Art. III, Sec.2. The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.

Petitioner Beltran is convinced that the Constitution requires the judge to personally examine
the complainant and his witness in his determination of probable cause for the issuance of
warrants of arrests.

However, what the Constitution underscores is the exclusive and personal responsibility of the
issuing judge to satisfy himself of the existence of probable cause. In doing so, the judge is not
required to personally examine the complainant and his witness.

Guitierrez, Jr., J, separate concurring:

Luis Beltran (Beltran), along with the others (as petitioners), were charged with libel by the then
President Corazon Aquino (Cory). Cory filed a complaint-affidavit against Beltran and others.
Makasair averred that Cory cannot file a complaint because this would defeat the presidential
immunity from suit.

Makasiar contends that the president cannot be sued. However, if a president would sue, then
the president would allow herself to be placed under the court’s jurisdiction and conversely she
would be consenting to be sued back. Also, considering the functions of a president, the
president may not be able to appear in court to be a witness for herself thus she may be liable
for contempt.

ISSUE/S: SUBSTANTIVE ISSUES

. (1) Whetherthepresidentialimmunityfromsuitbewaived.(YES) 


. (2) Whetherthepresidentialimmunityfromsuitcanbeinvokedby 
 Beltran (an individual other

than the President. (NO) 


PROCEDURAL ISSUES

. (1) WhetherBeltranwasdenieddueprocess.(NO) 


. (2) WhetherBeltran’sconstitutionalrightswereviolatedwhenRTCjudge 
 issued a warrant of

arrest w/o personally examining the complaint and 
 the witnesses, if any, to determine
probable cause. (NO) 


HELD/RATIO: SUBSTANTIVE ISSUES FIRST ISSUE:

The rationale for the grant to the President of the privilege of immunity from suit is 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

There is nothing in our present laws which prevents the President from

waiving the privilege. Thus, the choice of whether to exercise the privilege
or to waive it is solely the President’s prerogative.

SECOND ISSUE:

attention.

Page 37 of 174

Concurs with the majority opinion insofar as it revolves around the three principal issues. With
regard to whether or not the libel case would produce a “chilling effect” on press freedom,
Gutierrez believes that this particular issue is the most important and should be resolved now
rather than later.

Beltran contends that he could not be held liable for libel because of the privileged character of
the publication. He also says that to allow the libel case to proceed would produce a “chilling
effect” on press freedom.

Court reiterates that it is not a trier of facts And Court finds no basis at this stage to rule on the
“chilling effect” point. (majority decision)

Armed Forces of the Philippines, to maintain law and order throughout the Philippines,
prevent or suppress all forms of lawless violence as well as any act of insurrection or
rebellion and to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction ; and as provided in
Section 17, Article 12 of the Constitution do hereby declare a State of National
Emergency.

She cited the following facts as bases:
 WHEREAS, over these past months, elements in the
political opposition have conspired with authoritarians of the extreme Left represented
by the NDF-CPP-NPA and the extreme Right, represented by military adventurists – the
historical enemies of the democratic Philippine State – who are now in a tactical alliance
and engaged in a concerted and systematic conspiracy, over a broad front, to bring down the
duly constituted Government elected in May 2004;
 WHEREAS, the claims of these elements
have been recklessly magnified by certain segments of the national media;
 xxx xxx
xxx
 NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested
in me under the Constitution as President of the Republic of the Philippines, and Commander-
in-Chief of the Republic of the Philippines, and pursuant to Proclamation No. 1017 dated
February 24, 2006, do hereby call upon the Armed Forces of the Philippines (AFP) and the
Philippine National Police (PNP), to prevent and suppress acts of terrorism and lawless violence
in the country;

In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that
the proximate cause behind the executive issuances was the conspiracy among some military
officers, leftist insurgents of the New People’s Army (NPA), and some members of the

4
political opposition in a plot to unseat or assassinate President Arroyo. They considered the
aim to oust or assassinate the President and take- over the reigns of government as a clear and
present danger.

The Office of the President announced the cancellation of all programs and activities related to
the 20th anniversary celebration of Edsa People Power I; and revoked the permits to hold rallies
issued earlier by the local governments. Justice Secretary Raul Gonzales stated that political
rallies, which to the President’s mind were organized for purposes of destabilization, are
cancelled. Presidential Chief of Staff Michael Defensor announced that "warrantless arrests

and take-over of facilities, including media, can already be implemented.” Page 38 of 174

FACTS:

David v. Arroyo

G.R. No. 171396
 3 May 2006 Sandoval-Gutierrez, J. (Immunity of the President from Suit)

These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing
Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President
Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioners contend that
respondent officials of the Government, in their professed efforts to defend and preserve
democratic institutions, are actually trampling upon the very freedom guaranteed and protected
by the Constitution. Hence, such issuances are void for being unconstitutional.

On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power
I, President Arroyo issued PP 1017 declaring a state of national emergency, thus:
 NOW,
THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and
Commander-in- Chief of the Armed Forces of the Philippines, by virtue of the powers vested
upon me by Section 18, Article 7 of the Philippine Constitution which states that: "The President.
. . whenever it becomes necessary, . . . may call out (the) armed forces to prevent or suppress. .
.rebellion. . .," and in my capacity as their Commander-in-Chief, do hereby command the

Undeterred by the announcements that rallies and public assemblies would not be allowed,
groups of protesters (members of Kilusang Mayo Uno [KMU] and National Federation of Labor
Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts of Metro Manila with
the intention of converging at the EDSA shrine. Those who were already near the EDSA site
were violently dispersed by huge clusters of anti-riot police. The well-trained policemen used
truncheons, big fiber glass shields, water cannons, and tear gas to stop and break up the
marching groups, and scatter the massed participants. The same police action was used
against the protesters marching forward to Cubao, Quezon City and to the corner of Santolan
Street and EDSA. That same evening, hundreds of riot policemen broke up an EDSA
celebration rally held along Ayala Avenue and Paseo de Roxas Street in Makati City.

During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner
Randolf S. David, a professor at the University of the Philippines and newspaper columnist. Also
arrested was his companion, Ronald Llamas, president of party-list Akbayan.

At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal
Investigation and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5,
raided the Daily Tribune offices in Manila. The raiding team confiscated news stories by
reporters, documents, pictures, and mock-ups of the Saturday issue. Policemen from Camp
Crame in Quezon City were stationed inside the editorial and business offices of the newspaper;
while policemen from the Manila Police District were stationed outside the building. A few
minutes after the search and seizure at the Daily Tribune offices, the police surrounded the
premises of another pro-opposition paper, Malaya, and its sister publication, the tabloid Abante.

Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing the
Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse in
Bulacan. The police showed a warrant for his arrest dated 1985. Beltran’s lawyer explained that
the warrant, which stemmed from a case of inciting to rebellion filed during the Marcos regime,
had long been quashed. Beltran, however, is not a party in any of these petitions.

When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they
could not be admitted because of PP 1017 and G.O. No. 5. Two members were arrested and
detained, while the rest were dispersed by the police.

Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during
a public forum at the Sulo Hotel in Quezon City. But his two drivers, identified as Roel and Art,
were taken into custody.

Retired Major General Ramon Montaño, former head of the Philippine Constabulary, was
arrested while with his wife and golfmates at the Orchard Golf and Country Club in Dasmariñas,
Cavite.

Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael
Mariano, Bayan Muna Representative Teodoro Casiño and Gabriela Representative Liza Maza.
Bayan Muna Representative Josel Virador was arrested at the PAL Ticket Office in Davao City.
Later, he was turned over to the custody of the House of Representatives where the "Batasan
5" decided to stay indefinitely.

Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran,
Satur Ocampo, et al., are not being raised in these petitions.
On March 3, 2006, exactly one week after the declaration of a state of national emergency and
after all these petitions had been filed, the President lifted PP 1017. She issued Proclamation
No. 1021.

ISSUE/S:

Whether or not it is proper to implead President Arroyo as a respondent. (No)

HELD/RATIO:

It is not proper to implead President Arroyo as respondent. Settled is the doctrine that the
President, during his tenure of office or actual incumbency, may not be sued in any civil or
criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the
dignity of the high office of the President, the Head of State, if he can be dragged into court
litigations while serving as such. Furthermore, it is important that he be freed from any form of
harassment, hindrance or distraction to enable him to fully attend to the performance of his
official duties and functions. Unlike the legislative and judicial branch, only one constitutes the
executive branch and anything which impairs his usefulness in the discharge of the many great
and important duties imposed upon him by the Constitution necessarily impairs the operation of
the Government. However, this does not mean that the President is not accountable to anyone.
Like any other official, he remains accountable to

Page 39 of 174

the people but he may be removed from office only in the mode provided by law and that is by
impeachment.

FIRST ISSUE:

Congress have recognized Arroyo as the President. Impliedly, such recognition presupposes
the inability of petitioner Estrada is no longer temporary. Congress has clearly Estrada’s claim of
temporary incapacity. The question at bar is purely political which cannot be decided by the
Supreme Court without violating the principle of separation of powers. As such, the SC cannot
exercise its judicial power for full discretionary authority has been delegated to the Legislative
branch.

SECOND ISSUE:

A resignation is not governed by any formal requirements, what is required merely is that there
is an intent to resign and acts of relinquishment. Resignation canbe oral, written, expressed
or implied.

Petitioner did not write any formal letter of resignation before he evacuated Malacañang Palace
in the Afternoon of January 20, 2000. However, using totality test (via his acts and omissions)
as to determine whether or not he resigned has it can be shown that clearly, on his part,
President Estrada INTENDED TO RESIGN.

Acts which showed his intention to resign:
 1. leaving the Palace for the sake of peace and in
order;
 2. expressed his gratitude to the people for the opportunity to serve

them;
 3. called on his supporters to join him in promotion of a constructive

national spirit of reconciliation and solidarity. 4. Recognition of the oath-taking of PGMA;

THIRD ISSUE:

What is the scope of immunity that can be claimed by petitioner as a non-sitting

President?
 The cases filed against petitioner Estrada are
 criminal in character. They involve
plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes,
especially plunder which carries the death penalty, be covered by the allege mantle of immunity
of a non-sitting president. Petitioner cannot cite any decision of this Court licensing the
President to commit criminal acts and wrapping him with post-tenure immunity from liability. It
will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and
omissions. The rule is that unlawful acts of public officials are not acts of the State and the
officer who acts illegally is not acting as such but stands in the same footing as any other
trespasser.

Estrada v. Desierto

G.R. Nos. 146710-15 2 March 2001 Puno, J.

(Impeachment of the President)

FACTS:

Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate President
and Speaker of the House.
 Unaware of the letter, respondent Arroyo took her oath of office as
President on January 20, 2001 at about 12:30 p.m.

Despite receipt of the letter, the House of Representative passed on January 24, 2001 House
Resolution No. 175. On the same date, the House of the Representatives passed House
Resolution No. 176.

On February 8, the Senate also passed Resolution No. 84 certifying to the existence of a
vacancy in the Senate and calling on the COMELEC to fill up such vacancy through election to
be held simultaneously with the regular election on May 14, 2001 and the senatorial candidate
garnering

th
the thirteenth (13 ) highest number of votes shall serve only for the unexpired term of Senator
Teofisto T. Guingona, Jr.

Both houses of Congress started sending bills to be signed into law by respondent Arroyo as
President.Despite the lapse of time and still without any functioning Cabinet, without any
recognition from any sector of government, and without any support from the Armed Forces of
the Philippines and the Philippine National Police, the petitioner continues to claim that his
inability to govern is only momentary.

ISSUE/S:

. (1) Whether or not Estrada is only temporarily disabled to act as the President. (No) 


. (2) Whether or not Estrada’s actions were considered as an effective resignation. (Yes) 


(3) Whether or not the petitioner enjoys immunity from suit. Assuming he enjoys immunity, the
extent of the immunity. (No)

HELD/RATIO:

Page 40 of 174

Indeed, a critical reading of current literature on executive immunity will reveal a judicial
disinclination to expand the privilege especially when it impedes the search for truth or impairs
the vindication of a right. A public office is a public trust.

THE LEGISLATURE
 Araneta v. Gatmaitan

G.R. Nos. L-8895 and L-9191 30 April 1957
 Felix, J.

(Law-making of the Legislature as Distinguished from Rule-Making Authority of the

Executive or Law Execution)

FACTS:

In 1950, trawl operators from Malabon and Navotas migrated to the Bicol region in order to fish
in the San Miguel Bay, located between the provinces of Camarines Norte and Camarines Sur,
which is considered the most important fishing area in the Pacific side of the Bicol region.

Subsistence fisherman, in the belief that such practices caused the depletion of the marine
resources in the area, clamored to prohibit the operation of trawls within the bay.
The Municipal Mayor’s League condemned the trawl operations as the cause of the wanton
destruction of the shrimp specie and resolved to petition the President to ban or regulate the
operations of trawls to certain periods of the year. Two resolutions were issued to this effect.

President Magsaysay issued Executive Order No. 22 prohibiting the use of trawls in San Miguel
Bay; it was amended by E.O. No. 66 allowing trawl fishing during the typhoon season only.
Subsequently, E.O. No. 80 was issued which effectively revived EO No. 22.

Trawl Operators filled a complaint for injunction and/or declaratory relief with preliminary
injunction with the CFI of Manila restrain the respondents and declare the EOs void.

The Governor of Camarines Sur called the attention of the Court that the Solicitor General had
not been notified of the proceeding. The Court ordered that the trial could go on and the
SolGencould be notified before judgement was entered. The SolGen was allowed to file his
memorandum after the evidence for both parties was submitted.

Ruling of the CFI: Congress may define the conditions which the power to close any definite
area of the Philippine waters may be exercised. It is primarily within the fields of legislation not
of execution. Congress had not intended to abdicate its inherent right to legislate on matters of
national importance. To accept respondents' view would be to sanction the exercise of
legislative power by executive decrees. Until the trawler is outlawed by legislative enactment, it
cannot be banned from San Miguel Bay by executive proclamation. The remedy for respondents
and population of the coastal towns of Camarines Sur is to go to the Legislature.

Petitioners filed for a writ of injunction and respondent were ordered to file a bond of P30,000 for
the non-issuance of the injunction, pending appeal. Respondents raised this matter to SC
contending that by requiring the bond the Republic of the Philippines was made a party
defendant which transformed the suit into one against the Government which is beyond the
jurisdiction of the respondent Judge.

ISSUE/S:

. (1) Whether or not the Respondents, acting in their capacity as Government officials, could
be required to post bond in an action against them. (No) 


. (2) WhetherornottheE.O.swasvalidlyissuedbythePresident.(Yes) 


. (3) WhetherornottheaboveE.O.swereavaliddelegationofpowersof 
 the Congress. (Yes) 


HELD/RATIO:
 FIRST ISSUE:
 The SC held that the present action being one against
petitioners, acting in their capacity as Government officials, is essentially one against the
Government, and to require these officials to file a bond would be indirectly a requirement
against the Government. (Note: If they ask why the republic cannot be a party defendant it’s
because the State cannot be sued without its consent.)
Page 41 of 174

However, as the records show that respondents failed to put up the bond allegedly due to
difficulties encountered with the Auditor General's Office but since they failed to issue bond for
reasons beyond their control the issue becomes moot and academic.

SECOND ISSUE:

First, the SolGen avers that the constitutionality of an executive order cannot be assailed in
petition for declaratory relief. However, in Hilado vs. De la Costa, the Court in effect accepted
the propriety of such action.

The SC cited various provisions of the Fisheries law. Pertinently, the law declares unlawful and
fixes the penalty for the taking, destroying or killing of any fish fry or fish eggs. It authorizes the
Secretary of Agriculture and Natural Resources to promulgate regulations restricting the use of
any fish net or fishing device (includes the net used by trawl fishermen) for the protection of fry
or fish eggs, as well as to set aside and establish fishery reservations or fish refuges and
sanctuaries to be administered in the manner prescribed by him.

Section 75 mentions certain streams, ponds and waters within the game refuges, . . . communal
forest, etc., which the law itself declares fish refuges and sanctuaries, but this enumeration of
places does not curtail the general and unlimited power of the Secretary of Agriculture and
Natural Resources in the first part of section 75, to set aside and establish fishery reservations
or fish refuges and sanctuaries, which naturally include seas or bays, like the San Miguel Bay in
Camarines.

From both the law and the preceding manifestations, the Court held that even without the EO,
the restriction and banning of trawl fishing come within the powers of the Secretary of
Agriculture and Natural Resources, who in compliance with his duties may even cause the
criminal prosecution of those who in violation of his instructions, regulations or orders are
caught fishing with trawls in the Philippine waters.

Since the Secretary of Agriculture and Natural Resources has authority to regulate or ban the
fishing by trawl, the President by virtue of the Constitution (Art. VII, Sec. 10(1)) and the
Administrative Code (Sections 63, 74, 79) may also exercise that same power and authority.
The EOs are therefore valid.

THIRD ISSUE:

The true distinction between delegation of the power to legislate and the conferring of authority
or discretion as to the execution of law consists in that the former necessary involves a
discretion as to what the law shall be, while in the latter, the authority or discretion as to its
execution has to be exercised under and in pursuance of the law. The first cannot be done; to
the latter no valid objection can be made.
In US v. Ang Tang Ho, the Legislature cannot delegate legislative power to enact any law. If Act
No. 2868 is a law unto itself, and it does nothing more than to authorize the Governor- General
to make rules and regulations to carry it into effect. There is no delegation of power and it is
valid. On the other hand, if the act itself does not define a crime and is not complete, and some
legislative act remains to be done to make it a law or a crime, the doing of which is vested in the
Governor-General, the act is delegation of legislative power, is unconstitutional and void.

In this case, Congress (a) declared it unlawful "to take or catch fry or fish eggs in the territorial
waters of the Philippines; (b) it authorized the Secretary of Agriculture and Natural Resources to
provide by the regulations such restrictions as may be deemed necessary to be imposed on the
use of any fishing net or fishing device for the protection of fish fry or fish eggs ; (c) authorized
the Secretary of Agriculture and Natural Resources to set aside and establish fishery
reservations or fish refuges and sanctuaries to be administered in the manner to be prescribed
by him and declared it unlawful for any person to take, destroy or kill in any of said places, or, in
any manner disturb or drive away or take therefrom, any fish fry or fish eggs; and

(d) it penalizes the execution of such acts declared unlawful and in violation of this Act (No.
4003) or of any rules and regulations promulgated thereunder, making the offender subject to a
fine of not more than P200, or imprisonment for not more than 6 months, or both, in the
discretion of the court (Sec. 83).

As the protection of fish fry or fish egg is concerned from the foregoing, the Fisheries Act is
complete in itself. Leaving to the Secretary of Agriculture and Natural Resources the
promulgation of rules and regulations to carry into effect the legislative intent.

Eastern Shipping Line v. POEA

G.R. No. 76633 18 October 1988 Cruz, J.

Page 42 of 174

(Law-making of the Legislature as Distinguished from Rule-Making Authority of the

Executive or Law Execution)

FACTS:

Vitaliano Saco was Chief Officer of the M/V Eastern Polaris when he was killed in an accident in
Tokyo, Japan, March 15, 1985.

His widow sued for damages under Executive Order No. 797 and Memorandum Circular No. 2.

Eastern Shipping Lines questioned the validity of the memorandum circular as violative of the
principle of non -delegation of legislative power issued by the POEA which stipulated death
benefits and burial for the family of overseas workers.

It contends that no authority had been given the POEA to promulgate the said regulation; and
even with such authorization, the regulation represents an exercise of legislative discretion
which, under the principle, is not subject to delegation.

Nevertheless, POEA assumed jurisdiction and decided the case.

ISSUE/S:

(1) WhetherorNotPOEAviolatedtheprincipleofnon-delegationof powers. (NO)

HELD/RATIO:

SC held that there was a valid delegation of powers.

The authority to issue the said regulation is clearly provided in Section 4(a) of Executive Order
No. 797:

"The governing Board of the Administration (POEA), as hereunder provided shall promulgate
the necessary rules and regulations to govern the exercise of the adjudicatory functions of the
Administration (POEA)."

Legislative discretion as to the substantive contents of the law cannot be delegated. What can
be delegated is the discretion to determine how the law may be enforced, not what the law shall
be. The ascertainment of the latter subject is a prerogative of the legislature. This prerogative
cannot be abdicated or surrendered by the legislature to the delegate.

The reasons given above for the delegation of legislative powers in general are particularly
applicable to administrative bodies. With the proliferation of specialized activities and their
attendant peculiar problems, the national legislature has found it more and more necessary to
entrust to administrative agencies the authority to issue rules to carry out the general provisions
of the statute. This is called the "power of subordinate legislation."

With this power, administrative bodies may implement the broad policies laid down in a statute
by "filling in' the details which the Congress may not have the opportunity or competence to
provide. This is effected by their promulgation of what are known as supplementary regulations,
such as the implementing rules issued by the Department of Labor on the new Labor Code.
These regulations have the force and effect of law.

There are two accepted tests to determine whether or not there is a valid delegation of
legislative power:

1. Completeness test - the law must be complete in all its terms and conditions when it leaves
the legislature such that when it reaches the delegate the only thing he will have to do is enforce
it.

2. Sufficient standard test - there must be adequate guidelines or stations in the law to map
out the boundaries of the delegate's authority and prevent the delegation from running riot.

Both tests are intended to prevent a total transference of legislative authority to the delegate,
who is not allowed to step into the shoes of the legislature and exercise a power essentially
legislative.

Belgica v. Ochoa

G.R. No. 208566 19 November 2013 Perlas-Bernabe, J.

(Undue Delegation of Legislative Power) FACTS:

Pork Barrel: General Concept.

"Pork Barrel" is political parlance of American -English origin. Historically, its usage may be
traced to the degrading ritual of rolling out a barrel stuffed with pork to a multitude of black
slaves who would cast their famished bodies into the porcine feast to assuage their hunger with

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morsels coming from the generosity of their well-fed master. This practice was later compared
to the actions of American legislators in trying to direct federal budgets in favor of their districts.
While the advent of refrigeration has made the actual pork barrel obsolete, it persists in
reference to political bills that "bring home the bacon" to a legislator‘s district and constituents.
In a more technical sense, "Pork Barrel" refers to an appropriation of government spending
meant for localized projects and secured solely or primarily to bring money to a representative's
district. Some scholars on the subject further use it to refer to legislative control of local
appropriations.

In the Philippines, "Pork Barrel" has been commonly referred to as lump- sum, discretionary
funds of Members of the Legislature, although, as will be later discussed, its usage would
evolve in reference to certain funds of the Executive.

History of Congressional Pork Barrel in the Philippines

The Congressional Pork Barrel dates back from 1922 (Pre Martial Law Era) in the form of Act
3044 or the Public Works Act of 1922, it is considered as the earliest form of "Congressional
Pork Barrel" in the Philippines since the utilization of the funds appropriated therein were
subjected to post-enactment legislator approval. During the Martial Law Era, the Pork Barrel
System was discontinued due to the era of one -man controlled legislature. But in 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". At this moment, the Congressional Pork Barrel
projects under the SLDP also began to cover not only public works projects, or so- called "hard
projects", but also "soft projects", or non-public works projects such as those which would fall
under the categories of, among others, education, health and livelihood.

After the EDSA People Power Revolution in 1986 and the restoration of Philippine democracy,
"Congressional Pork Barrel" was revived in the form of the "Mindanao Development Fund" and
the "Visayas Development Fund" which were created with lump-sum appropriations of ₱480
Million and ₱240 Million, respectively, for the funding of development projects in the Mindanao
and Visayas areas in 1989. It has been documented that the clamor raised by the Senators and
the Luzon legislators for a similar funding, prompted the creation of the "Countrywide
Development Fund" (CDF) which was integrated into the 1990 GAA with an initial funding of

₱2.3 Billion to cover "small local infrastructure and other priority community projects."

The administrations after the EDSA revolution have been consistent in adopting the Pork Barrel
System. 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.

In the 2012 and 2013 PDAF Articles (Aquino Administration), 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).”

However, as practiced, it would still be the individual legislator who would choose and identify
the project from the said priority list.

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.

President Ferdinand E. Marcos, on March 22, 1976, issued PD 910. 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.

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.

Controversies in the Philippines

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It was in 1996 when the first controversy surrounding the "Pork Barrel" erupted. Former
Marikina City Representative Romeo Candazo (Candazo), then an anonymous source, "blew
the lid on the huge sums of government money that regularly went into the pockets of legislators
in the form of kickbacks." He said that "the kickbacks were ‘SOP‘ (standard operating
procedure) among legislators and ranged from a low 19 percent to a high 52 percent of the cost
of each project, which could be anything from dredging, rip rapping, asphalting, concreting, and
construction of school buildings."

"The publication of the stories, including those about congressional initiative allocations of
certain lawmakers, including P3.6 Billion for a Congressman, sparked public outrage."

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.

Recently, or in July of the present year, the National Bureau of Investigation (NBI) began its
probe into allegations that "the government has been defrauded of some P10 Billion over the
past 10 years by a syndicate using funds from the pork barrel of lawmakers and various
government agencies for scores of ghost projects."

The investigation was spawned by sworn affidavits of six (6) whistle-- blowers who declared that
JLN Corporation – "JLN" standing for Janet Lim Napoles (Napoles) – had swindled billions of
pesos from the public coffers for "ghost projects" using no fewer than 20 dummy NGOs for an
entire decade. While the NGOs were supposedly the ultimate recipients of PDAF funds, the
whistle--blowers declared that the money was diverted into Napoles‘ private accounts. Thus,
after its investigation on the Napoles controversy, criminal complaints were filed before the
Office of the Ombudsman, charging five (5) lawmakers for Plunder, and three (3) other
lawmakers for Malversation, Direct Bribery, and Violation of the Anti--Graft and Corrupt
Practices Act.

Commission on Audit (CoA) released the results of a three--year audit investigation covering the
use of legislators' PDAF from 2007 to 2009, or during the last three (3) years of the Arroyo
administration. The purpose of the audit was to determine the propriety of releases of funds
under PDAF and the Various Infrastructures including Local Projects (VILP) by
the DBM, the application of these funds and the implementation of projects by the appropriate
implementing agencies and several government--owned--and--controlled corporations
(GOCCs). The total releases covered by the audit amounted to P8.374 Billion in PDAF and
P32.664 Billion in VILP, representing 58% and 32%, respectively, of the total PDAF and VILP
releases that were found to have been made nationwide during the audit period.

Accordingly, the CoA‘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. As for the "Presidential Pork Barrel", whistle-- blowers
alleged that" at least P900 Million from royalties in the operation of the Malampaya gas project
off Palawan province intended for agrarian reform beneficiaries has gone into a dummy NGO."
According to incumbent CoA Chairperson Maria Gracia Pulido Tan (CoA Chairperson), the CoA
is, as of this writing, in the process of preparing "one consolidated report" on the Malampaya
Funds.

ISSUE/S: PROCEDURAL ISSUES

(1) Whether or not the issues raised in the consolidated petitions involve an actual and
justiciable controversy. (YES)

(2) Whether or not the issues raised in the consolidated petitions are matters of policy not
subject to judicial review. (NO)

(3) Whetherornotpetitionershavelegalstandingtosue.(YES)
 (4) Whether or not the Court‘s

Decision in "Philippine Constitution Association v. Enriquez" (Philconsa) and in "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 decisis.

(NO)

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
 (1) separationofpowers(YES)

(2) non--delegabilityoflegislativepower(YES) (3) checksandbalances(YES)
 (4)

accountability(YES)

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(5) politicaldynasties(NO) (6) local autonomy (NO)

SUBSTANTIVE ISSUES on the "Presidential Pork Barrel"

(1) Whether or not the phrases (a) "and for such other purposes as may be hereafter directed by
the President" under Section 8 of PD 910, relating to the Malampaya Funds, and (b) "to finance
the priority infrastructure development projects and to finance the restoration of damaged or
destroyed facilities due to calamities, as may be directed and authorized by the Office of the
President of the Philippines" under Section 12 of PD 1869, as amended by PD 1993, relating to
the Presidential Social Fund, are unconstitutional insofar as they constitute undue delegation of
legislative power. (YES)

HELD/RATIO:
 PROCEDURAL ISSUES
 Res Judicata and Stare Decisis

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.

SUBSTANTIVE ISSUES

A. Definition of Terms

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; 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, the Court shall delimit the use of such term to refer only to the
Malampaya Funds and the Presidential Social Fund.

B. Substantive Issues on the Congressional Pork Barrel

1. Separation of Powers
a. Statement of Principle
 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 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.

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."

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.

b. Application

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.

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 2
paragraph of Special Provision 4.

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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".

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.

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.

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

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.

That the power to appropriate must be exercised only through legislation is clear from Section
29(1), Article VI of the 1987 Constitution which states that: "No money shall be paid out of the
Treasury except in pursuance of an appropriation made by law."

To understand what constitutes an act of appropriation, the Court, in Bengzon v. Secretary of

Justice and Insular Auditor (Bengzon), held that the power of appropriation involves (a) the
setting apart by law of a certain sum from the public revenue for (b) a specified purpose.

Essentially, under the 2013 PDAF Article, individual legislators are given a personal 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

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."

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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.”

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.

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.

b. Application

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.

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." Accordingly, she
recommends the adoption of a "line by line budget or amount per proposed program, activity or
project, and per implementing agency."

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.

c. Accountability.

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

Page 48 of 174
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.

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.

4. Political Dynasties

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

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."

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.

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.

C. Substantive Issues on the Presidential Pork Barrel 1. Validity of Appropriation

Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of PD1869 (now, amended
by PD 1993), which respectively provide for the Malampaya Funds and the Presidential Social
Fund, as invalid appropriations laws since they do not have the "primary and specific" purpose
of authorizing the release of public funds from the National Treasury.

Petitioners submit that Section 8 of PD 910 is not an appropriation law since the "primary and
specific purpose of PD 910 is the creation of an Energy Development Board and Section 8
thereof only created a Special Fund incidental thereto.

In similar regard, petitioners argue that Section 12 of PD 1869 is neither a valid appropriations
law since the allocation of the Presidential Social Fund is merely incidental to the "primary and
specific" purpose of PD 1869 which is the amendment of the Franchise and Powers of
PAGCOR.

In view of the foregoing, petitioners suppose that such funds are being used without any valid
law allowing for their proper appropriation in

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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."

The Court disagrees.

"An appropriation made by law under the contemplation of Section 29(1), Article VI of the 1987
Constitution exists when a provision of law (a) sets apart a determinate or determinable amount
of money and (b) allocates the same for a particular public purpose.

These two minimum designations of amount and purpose stem from the very definition of the
word "appropriation," which means "to allot, assign, set apart or apply to a particular use or
purpose," and hence, if written into the law, demonstrate that the legislative intent to appropriate
exists.
As the Constitution "does not provide or prescribe any particular form of words or religious
recitals in which an authorization or appropriation by Congress shall be made, except that it be
‘made by law,‘" an appropriation law may – according to Philconsa – be "detailed and as broad
as Congress wants it to be" for as long as the intent to appropriate may be gleaned from the
same.

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.

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.

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.

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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.

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."

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 for the Presidential Social Fund, the Court takes judicial notice of the fact that Section 12 of
PD 1869 has already been amended by PD 1993 which thus moots the parties‘ submissions on
the same. Nevertheless, since the amendatory provision may be readily examined under the
current parameters of discussion, the Court proceeds to resolve its constitutionality.

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 infrastructure development projects" and
hence, leaves the President without any guideline to construe the same. As they are severable,
all other provisions of Section 12 of PD 1869, as amended by PD 1993, remains legally effective
and subsisting.

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

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