Consti 1

G.R. No.
193462
February 4, 2014
DENNIS A.B. FUNA, Petitioner,

vs.
MANILA ECONOMIC AND CULTURAL OFFICE and the COMMISSION ON AUDIT, Respondents.
DECISION
PEREZ, J.:
The Philippines commitment to the One China policy of the PROC, however, did not preclude the country from
keeping unofficial relations with Taiwan on a "people-to-people" basis.10 Maintaining ties with Taiwan that is
permissible by the terms of the Joint Communiqu, however, necessarily required the Philippines, and Taiwan, to
course any such relations thru offices outside of the official or governmental organs.
Hence, despite ending their diplomatic ties, the people of Taiwan and of the Philippines maintained an unofficial
relationship facilitated by the offices of the Taipei Economic and Cultural Office, for the former, and the MECO, for the
latter.11
The MECO12 was organized on 16 December 1997 as a non-stock, non-profit corporation under Batas Pambansa
Blg. 68 or the Corporation Code.13 The purposes underlying the incorporation of MECO, as stated in its articles of
incorporation,14 are as follows:
This is a petition for mandamus1 to compel:

1.) the Commission on Audit (COA) to audit and examine the funds of the Manila Economic and Cultural
Office (MECO), and
1. To establish and develop the commercial and industrial interests of Filipino nationals here and abroad,
and assist on all measures designed to promote and maintain the trade relations of the country with the
citizens of other foreign countries;
2.) the MECO to submit to such audit and examination.

The antecedents:
Prelude
The aftermath of the Chinese civil war2 left the country of China with two (2) governments in a stalemate espousing
competing assertions of sovereignty.3 On one hand is the communist Peoples Republic of China (PROC) which
controls the mainland territories, and on the other hand is the nationalist Republic of China (ROC) which controls the
island of Taiwan. For a better part of the past century, both the PROC and ROC adhered to a policy of "One China"
i.e., the view that there is only one legitimate government in China, but differed in their respective interpretation as to
which that government is.4
With the existence of two governments having conflicting claims of sovereignty over one country, came the question
as to which of the two is deserving of recognition as that countrys legitimate government. Even after its relocation to
Taiwan, the ROC used to enjoy diplomatic recognition from a majority of the worlds states, partly due to being a
founding member of the United Nations (UN).5 The number of states partial to the PROCs version of the One China
policy, however, gradually increased in the 1960s and 70s, most notably after the UN General Assembly adopted the
monumental Resolution 2758 in 1971.6 Since then, almost all of the states that had erstwhile recognized the ROC as
the legitimate government of China, terminated their official relations with the said government, in favor of
establishing diplomatic relations with the PROC.7 The Philippines is one of such states.
The Philippines formally ended its official diplomatic relations with the government in Taiwan on 9 June 1975, when
the country and the PROC expressed mutual recognition thru the Joint Communiqu of the Government of the
Republic of the Philippines and the Government of the Peoples Republic of China (Joint Communiqu).8
2. To receive and accept grants and subsidies that are reasonably necessary in carrying out the corporate
purposes provided they are not subject to conditions defeatist for or incompatible with said purpose;
3. To acquire by purchase, lease or by any gratuitous title real and personal properties as may be
necessary for the use and need of the corporation, and to dispose of the same in like manner when they
are no longer needed or useful; and
4. To do and perform any and all acts which are deemed reasonably necessary to carry out the purposes.
(Emphasis supplied)
From the moment it was incorporated, the MECO became the corporate entity "entrusted" by the Philippine
government with the responsibility of fostering "friendly" and "unofficial" relations with the people of Taiwan,
particularly in the areas of trade, economic cooperation, investment, cultural, scientific and educational
exchanges.15 To enable it to carry out such responsibility, the MECO was "authorized" by the government to perform
certain "consular and other functions" that relates to the promotion, protection and facilitation of Philippine interests
in Taiwan.16
At present, it is the MECO that oversees the rights and interests of Overseas Filipino Workers (OFWs) in Taiwan;
promotes the Philippines as a tourist and investment destination for the Taiwanese; and facilitates the travel of
Filipinos and Taiwanese from Taiwan to the Philippines, and vice versa.17
Facts Leading to the Mandamus Petition
Under the Joint Communiqu, the Philippines categorically stated its adherence to the One China policy of the
PROC. The pertinent portion of the Joint Communiqu reads:9
On 23 August 2010, petitioner sent a letter18 to the COA requesting for a "copy of the latest financial and audit
report" of the MECO invoking, for that purpose, his "constitutional right to information on matters of public concern."
The petitioner made the request on the belief that the MECO, being under the "operational supervision" of the
Department of Trade and Industry (DTI), is a government owned and controlled corporation (GOCC) and thus
subject to the audit jurisdiction of the COA.19
The Philippine Government recognizes the Government of the Peoples Republic of China as the sole legal
government of China, fully understands and respects the position of the Chinese Government that there is but one
China and that Taiwan is an integral part of Chinese territory, and decides to remove all its official representations
from Taiwan within one month from the date of signature of this communiqu. (Emphasis supplied)
Petitioners letter was received by COA Assistant Commissioner Jaime P. Naranjo, the following day.
On 25 August 2010, Assistant Commissioner Naranjo issued a memorandum20 referring the petitioners request to
COA Assistant Commissioner Emma M. Espina for "further disposition." In this memorandum, however, Assistant
Commissioner Naranjo revealed that the MECO was "not among the agencies audited by any of the three Clusters of
the Corporate Government Sector."21
On 7 September 2010, petitioner learned about the 25 August 2010 memorandum and its contents.
Mandamus Petition
Taking the 25 August 2010 memorandum as an admission that the COA had never audited and examined the
accounts of the MECO, the petitioner filed the instant petition for mandamus on 8 September 2010. Petitioner filed
the suit in his capacities as "taxpayer, concerned citizen, a member of the Philippine Bar and law book author."22 He
impleaded both the COA and the MECO.
Petitioner posits that by failing to audit the accounts of the MECO, the COA is neglecting its duty under Section 2(1),
Article IX-D of the Constitution to audit the accounts of an otherwise bona fide GOCC or government instrumentality.
It is the adamant claim of the petitioner that the MECO is a GOCC without an original charter or, at least, a
government instrumentality, the funds of which partake the nature of public funds.23
According to petitioner, the MECO possesses all the essential characteristics of a GOCC and an instrumentality
under the Executive Order No. (EO) 292, s. 1987 or the Administrative Code: it is a non-stock corporation vested
with governmental functions relating to public needs; it is controlled by the government thru a board of directors
appointed by the President of the Philippines; and while not integrated within the executive departmental framework,
it is nonetheless under the operational and policy supervision of the DTI.24 As petitioner substantiates:
1. The MECO is vested with government functions. It performs functions that are equivalent to those of an
embassy or a consulate of the Philippine government.25 A reading of the authorized functions of the
MECO as found in EO No. 15, s. 2001, reveals that they are substantially the same functions performed by
the Department of Foreign Affairs (DFA), through its diplomatic and consular missions, per the
Administrative Code.26
2. The MECO is controlled by the government. It is the President of the Philippines that actually appoints
the directors of the MECO, albeit indirectly, by way of "desire letters" addressed to the MECOs board of
directors.27 An illustration of this exercise is the assumption by Mr. Antonio Basilio as chairman of the
board of directors of the MECO in 2001, which was accomplished when former President Gloria
Macapagal-Arroyo, through a memorandum28 dated 20 February 2001, expressed her "desire" to the
board of directors of the MECO for the election of Mr. Basilio as chairman.29
3. The MECO is under the operational and policy supervision of the DTI. The MECO was placed under the
operational supervision of the DTI by EO No. 328, s. of 2004, and again under the policy supervision of the
same department by EO No. 426, s. 2005.30
To further bolster his position that the accounts of the MECO ought to be audited by the COA, the petitioner calls
attention to the practice, allegedly prevailing in the United States of America, wherein the American Institute in
Taiwan (AIT)the counterpart entity of the MECO in the United Statesis supposedly audited by that countrys
Comptroller General.31 Petitioner claims that this practice had been confirmed in a decision of the United States
Court of Appeals for the District of Columbia Circuit, in the case of Wood, Jr., ex rel. United States of America v. The
American Institute in Taiwan, et al.32
The Position of the MECO
The MECO prays for the dismissal of the mandamus petition on procedural and substantial grounds.
On procedure, the MECO argues that the mandamus petition was prematurely filed.33
The MECO posits that a cause of action for mandamus to compel the performance of a ministerial duty required by
law only ripens once there has been a refusal by the tribunal, board or officer concerned to perform such a
duty.34The MECO claims that there was, in this case, no such refusal either on its part or on the COAs because the
petitioner never made any demand for it to submit to an audit by the COA or for the COA to perform such an audit,
prior to filing the instant mandamus petition.35 The MECO further points out that the only "demand" that the
petitioner made was his request to the COA for a copy of the MECOs latest financial and audit report which
request was not even finally disposed of by the time the instant petition was filed.36
On the petitions merits, the MECO denies the petitioners claim that it is a GOCC or a government
instrumentality.37 While performing public functions, the MECO maintains that it is not owned or controlled by the
government, and its funds are private funds.38 The MECO explains:
1. It is not owned or controlled by the government. Contrary to the allegations of the petitioner, the
President of the Philippines does not appoint its board of directors.39 The "desire letter" that the President
transmits is merely recommendatory and not binding on the corporation.40 As a corporation organized
under the Corporation Code, matters relating to the election of its directors and officers, as well as its
membership, are governed by the appropriate provisions of the said code, its articles of incorporation and
its by-laws.41 Thus, it is the directors who elect the corporations officers; the members who elect the
directors; and the directors who admit the members by way of a unanimous resolution. All of its officers,
directors, and members are private individuals and are not government officials.42
2. The government merely has policy supervision over it. Policy supervision is a lesser form of supervision
wherein the governments oversight is limited only to ensuring that the corporations activities are in tune
with the countrys commitments under the One China policy of the PROC.43 The day-to-day operations of
the corporation, however, remain to be controlled by its duly elected board of directors.44
The MECO emphasizes that categorizing it as a GOCC or a government instrumentality can potentially violate the
countrys commitment to the One China policy of the PROC.45 Thus, the MECO cautions against applying to the
present mandamus petition the pronouncement in the Wood decision regarding the alleged auditability of the AIT in
the United States.46
The Position of the COA
The COA, on the other hand, advances that the mandamus petition ought to be dismissed on procedural grounds
and on the ground of mootness.
The COA argues that the mandamus petition suffers from the following procedural defects:
1. The petitioner lacks locus standi to bring the suit. The COA claims that the petitioner has not shown, at
least in a concrete manner, that he had been aggrieved or prejudiced by its failure to audit the accounts of
the MECO.47
2. The petition was filed in violation of the doctrine of hierarchy of courts. The COA faults the filing of the
instant mandamus petition directly with this Court, when such petition could have very well been
presented, at the first instance, before the Court of Appeals or any Regional Trial Court.48 The COA claims
that the petitioner was not able to provide compelling reasons to justify a direct resort to the Supreme
Court.49
At any rate, the COA argues that the instant petition already became moot when COA Chairperson Maria Gracia M.
Pulido-Tan (Pulido-Tan) issued Office Order No. 2011-69850 on 6 October 2011.51 The COA notes that under Office
Order No. 2011-698, Chairperson Pulido-Tan already directed a team of auditors to proceed to Taiwan, specifically
for the purpose of auditing the accounts of, among other government agencies based therein, the MECO.52
In this case, We find that the issuance by the COA of Office Order No. 2011-698 indeed qualifies as a supervening
event that effectively renders moot and academic the main prayer of the instant mandamus petition. A writ of
mandamus to compel the COA to audit the accounts of the MECO would certainly be a mere superfluity, when the
former had already obliged itself to do the same.
In conceding that it has audit jurisdiction over the accounts of the MECO, however, the COA clarifies that it does not
consider the former as a GOCC or a government instrumentality. On the contrary, the COA maintains that the MECO
is a non-governmental entity.53
Be that as it may, this Court refrains from dismissing outright the petition. We believe that the mandamus petition was
able to craft substantial issues presupposing the commission of a grave violation of the Constitution and involving
paramount public interest, which need to be resolved nonetheless:
The COA argues that, despite being a non-governmental entity, the MECO may still be audited with respect to the
"verification fees" for overseas employment documents that it collects from Taiwanese employers on behalf of the
DOLE.54 The COA claims that, under Joint Circular No. 3-99,55 the MECO is mandated to remit to the Department
of Labor and Employment (DOLE) a portion of such "verification fees."56 The COA, therefore, classifies the MECO
as a non-governmental entity "required to pay xxx government share" subject to a partial audit of its accounts under
Section 26 of the Presidential Decree No. 1445 or the State Audit Code of the Philippines (Audit Code).57
First. The petition makes a serious allegation that the COA had been remiss in its constitutional or legal duty to audit
and examine the accounts of an otherwise auditable entity in the MECO.
OUR RULING
We grant the petition in part. We declare that the MECO is a non-governmental entity. However, under existing laws,
the accounts of the MECO pertaining to the "verification fees" it collects on behalf of the DOLE as well as the fees it
was authorized to collect under Section 2(6) of EO No. 15, s. 2001, are subject to the audit jurisdiction of the COA.
Such fees pertain to the government and should be audited by the COA.
I
Second. There is paramount public interest in the resolution of the issue concerning the failure of the COA to audit
the accounts of the MECO. The propriety or impropriety of such a refusal is determinative of whether the COA was
able to faithfully fulfill its constitutional role as the guardian of the public treasury, in which any citizen has an interest.
Third. There is also paramount public interest in the resolution of the issue regarding the legal status of the MECO; a
novelty insofar as our jurisprudence is concerned. We find that the status of the MECOwhether it may be
considered as a government agency or nothas a direct bearing on the countrys commitment to the One China
policy of the PROC.67
An allegation as serious as a violation of a constitutional or legal duty, coupled with the pressing public interest in the
resolution of all related issues, prompts this Court to pursue a definitive ruling thereon, if not for the proper guidance
of the government or agency concerned, then for the formulation of controlling principles for the education of the
bench, bar and the public in general.68 For this purpose, the Court invokes its symbolic function.69
We begin with the preliminary issues.

If the foregoing reasons are not enough to convince, We still add another:
Mootness of Petition
The first preliminary issue relates to the alleged mootness of the instant mandamus petition, occasioned by the
COAs issuance of Office Order No. 2011-698. The COA claims that by issuing Office Order No. 2011-698, it had
already conceded its jurisdiction over the accounts of the MECO and so fulfilled the objective of the instant
petition.58 The COA thus urges that the instant petition be dismissed for being moot and academic.59
We decline to dismiss the mandamus petition on the ground of mootness.
A case is deemed moot and academic when, by reason of the occurrence of a supervening event, it ceases to
present any justiciable controversy.60 Since they lack an actual controversy otherwise cognizable by courts, moot
cases are, as a rule, dismissible.61
The rule that requires dismissal of moot cases, however, is not absolute. It is subject to exceptions. In David v.
Macapagal-Arroyo,62 this Court comprehensively captured these exceptions scattered throughout our jurisprudence:
The "moot and academic" principle is not a magical formula that can automatically dissuade the courts in resolving a
case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the
Constitution;63 second, the exceptional character of the situation and the paramount public interest is
involved;64third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the
bar, and the public;65 and fourth, the case is capable of repetition yet evading review.66
Assuming that the allegations of neglect on the part of the COA were true, Office Order No. 2011-698 does not offer
the strongest certainty that they would not be replicated in the future. In the first place, Office Order No. 2011-698 did
not state any legal justification as to why, after decades of not auditing the accounts of the MECO, the COA suddenly
decided to do so. Neither does it state any determination regarding the true status of the MECO. The justifications
provided by the COA, in fact, only appears in the memorandum70 it submitted to this Court for purposes of this case.
Thus, the inclusion of the MECO in Office Order No. 2011-698 appears to be entirely dependent upon the judgment
of the incumbent chairperson of the COA; susceptible of being undone, with or without reason, by her or even her
successor. Hence, the case now before this Court is dangerously capable of being repeated yet evading review.
Verily, this Court should not dismiss the mandamus petition on the ground of mootness.
Standing of Petitioner
The second preliminary issue is concerned with the standing of the petitioner to file the instant mandamus petition.
The COA claims that petitioner has none, for the latter was not able to concretely establish that he had been
aggrieved or prejudiced by its failure to audit the accounts of the MECO.71
Related to the issue of lack of standing is the MECOs contention that petitioner has no cause of action to file the
instant mandamus petition. The MECO faults petitioner for not making any demand for it to submit to an audit by the
COA or for the COA to perform such an audit, prior to filing the instant petition.72
We sustain petitioners standing, as a concerned citizen, to file the instant petition.
Law, of course, identifies which accounts of what entities are subject to the audit jurisdiction of the COA.
The rules regarding legal standing in bringing public suits, or locus standi, are already well-defined in our case law.
Again, We cite David, which summarizes jurisprudence on this point:73
Under Section 2(1) of Article IX-D of the Constitution,77 the COA was vested with the "power, authority and duty" to
"examine, audit and settle" the "accounts" of the following entities:
By way of summary, the following rules may be culled from the cases decided by this Court.1a\^/phi1 Taxpayers,
voters, concerned citizens, and legislators may be accorded standing to sue, provided that the following
requirements are met:
(1) the cases involve constitutional issues;
1. The government, or any of its subdivisions, agencies and instrumentalities;

2. GOCCs with original charters;
3. GOCCs without original charters;
(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure
isunconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of the election law in question;
(4) for concerned citizens, there must be a showing that the issues raised are of transcendental
importance which must be settled early; and
(5) for legislators, there must be a claim that the official action complained of infringes upon their
prerogatives as legislators.
We rule that the instant petition raises issues of transcendental importance, involved as they are with the
performance of a constitutional duty, allegedly neglected, by the COA. Hence, We hold that the petitioner, as a
concerned citizen, has the requisite legal standing to file the instant mandamus petition.
4. Constitutional bodies, commissions and offices that have been granted fiscal autonomy under the
Constitution; and
5. Non-governmental entities receiving subsidy or equity, directly or indirectly, from or through the
government, which are required by law or the granting institution to submit to the COA for audit as a
condition of subsidy or equity.78
The term "accounts" mentioned in the subject constitutional provision pertains to the "revenue," "receipts,"
"expenditures" and "uses of funds and property" of the foregoing entities.79
Complementing the constitutional power of the COA to audit accounts of "non-governmental entities receiving
subsidy or equity xxx from or through the government" is Section 29(1)80 of the Audit Code, which grants the COA
visitorial authority over the following non-governmental entities:
1. Non-governmental entities "subsidized by the government";
To be sure, petitioner does not need to make any prior demand on the MECO or the COA in order to maintain the
instant petition. The duty of the COA sought to be compelled by mandamus, emanates from the Constitution and law,
which explicitly require, or "demand," that it perform the said duty. To the mind of this Court, petitioner already
established his cause of action against the COA when he alleged that the COA had neglected its duty in violation of
the Constitution and the law.
2. Non-governmental entities "required to pay levy or government share";

3. Non-governmental entities that have "received counterpart funds from the government"; and
4. Non-governmental entities "partly funded by donations through the government."
Principle of Hierarchy of Courts

The last preliminary issue is concerned with the petitions non-observance of the principle of hierarchy of courts. The
COA assails the filing of the instant mandamus petition directly with this Court, when such petition could have very
well been presented, at the first instance, before the Court of Appeals or any Regional Trial Court.74 The COA claims
that the petitioner was not able to provide compelling reasons to justify a direct resort to the Supreme Court.75
In view of the transcendental importance of the issues raised in the mandamus petition, as earlier mentioned, this
Court waives this last procedural issue in favor of a resolution on the merits.76
II
To the merits of this petition, then.
The single most crucial question asked by this case is whether the COA is, under prevailing law, mandated to audit
the accounts of the MECO. Conversely, are the accounts of the MECO subject to the audit jurisdiction of the COA?
Section 29(1) of the Audit Code, however, limits the audit of the foregoing non-governmental entities only to "funds
xxx coming from or through the government."81 This section of the Audit Code is, in turn, substantially reproduced in
Section 14(1), Book V of the Administrative Code.82
In addition to the foregoing, the Administrative Code also empowers the COA to examine and audit "the books,
records and accounts" of public utilities "in connection with the fixing of rates of every nature, or in relation to the
proceedings of the proper regulatory agencies, for purposes of determining franchise tax."83
Both petitioner and the COA claim that the accounts of the MECO are within the audit jurisdiction of the COA, but
vary on the extent of the audit and on what type of auditable entity the MECO is. The petitioner posits that all
accounts of the MECO are auditable as the latter is a bona fide GOCC or government instrumentality.84 On the other
hand, the COA argues that only the accounts of the MECO that pertain to the "verification fees" it collects on behalf
of the DOLE are auditable because the former is merely a non-governmental entity "required to pay xxx government
share" per the Audit Code.85
We examine both contentions.

The MECO Is Not a GOCC or
Government Instrumentality
We start with the petitioners contention.
Petitioner claims that the accounts of the MECO ought to be audited by the COA because the former is a GOCC or
government instrumentality. Petitioner points out that the MECO is a non-stock corporation "vested with
governmental functions relating to public needs"; it is "controlled by the government thru a board of directors
appointed by the President of the Philippines"; and it operates "outside of the departmental framework," subject only
to the "operational and policy supervision of the DTI."86 The MECO thus possesses, petitioner argues, the essential
characteristics of a bona fide GOCC and government instrumentality.87
We take exception to petitioners characterization of the MECO as a GOCC or government instrumentality. The
MECO is not a GOCC or government instrumentality.
Government instrumentalities are agencies of the national government that, by reason of some "special function or
jurisdiction" they perform or exercise, are allotted "operational autonomy" and are "not integrated within the
department framework."88 Subsumed under the rubric "government instrumentality" are the following entities:89
1. regulatory agencies,
entity a GOCC: first, its organization as stock or non-stock corporation;94 second, the public character of its function;
and third, government ownership over the same.
Possession of all three attributes is necessary to deem an entity a GOCC.
In this case, there is not much dispute that the MECO possesses the first and second attributes. It is the third
attribute, which the MECO lacks.
The MECO Is Organized as a Non-Stock Corporation
The organization of the MECO as a non-stock corporation cannot at all be denied. Records disclose that the MECO
was incorporated as a non-stock corporation under the Corporation Code on 16 December 1977.95 The
incorporators of the MECO were Simeon R. Roxas, Florencio C. Guzon, Manuel K. Dayrit, Pio K. Luz and Eduardo
B. Ledesma, who also served as the corporations original members and directors.96
The purposes for which the MECO was organized also establishes its non-profit character, to wit:97
1. To establish and develop the commercial and industrial interests of Filipino nationals here and abroad
and assist on all measures designed to promote and maintain the trade relations of the country with the
citizens of other foreign countries;
2. To receive and accept grants and subsidies that are reasonably necessary in carrying out the corporate
purposes provided they are not subject to conditions defeatist for or incompatible with said purpose;
2. chartered institutions,
3. government corporate entities or government instrumentalities with corporate powers
(GCE/GICP),90 and
4. GOCCs
The Administrative Code defines a GOCC:91
(13) Government-owned or controlled corporation refers to any agency organized as a stock or non-stock
corporation, vested with functions relating to public needs whether governmental or proprietary in nature, and owned
by the Government directly or through its instrumentalities either wholly, or, where applicable as in the case of stock
corporations, to the extent of at least fifty-one (51) per cent of its capital stock: x x x.
The above definition is, in turn, replicated in the more recent Republic Act No. 10149 or the GOCC Governance Act
of 2011, to wit:92
(o) Government-Owned or -Controlled Corporation (GOCC) refers to any agency organized as a stock or non-stock
corporation, vested with functions relating to public needs whether governmental or proprietary in nature, and owned
by the Government of the Republic of the Philippines directly or through its instrumentalities either wholly or, where
applicable as in the case of stock corporations, to the extent of at least a majority of its outstanding capital stock: x x
x.
GOCCs, therefore, are "stock or non-stock" corporations "vested with functions relating to public needs" that are
"owned by the Government directly or through its instrumentalities."93 By definition, three attributes thus make an
3. To acquire by purchase, lease or by any gratuitous title real and personal properties as may be
necessary for the use and need of the corporation, and in like manner when they are
4. To do and perform any and all acts which are deemed reasonably necessary to carry out the purposes.
(Emphasis supplied)
The purposes for which the MECO was organized are somewhat analogous to those of a trade, business or industry
chamber,98 but only on a much larger scale i.e., instead of furthering the interests of a particular line of business or
industry within a local sphere, the MECO seeks to promote the general interests of the Filipino people in a foreign
land.
Finally, it is not disputed that none of the income derived by the MECO is distributable as dividends to any of its
members, directors or officers.
Verily, the MECO is organized as a non-stock corporation.
The MECO Performs Functions with a Public Aspect.
The public character of the functions vested in the MECO cannot be doubted either. Indeed, to a certain degree, the
functions of the MECO can even be said to partake of the nature of governmental functions. As earlier intimated, it is
the MECO that, on behalf of the people of the Philippines, currently facilitates unofficial relations with the people in
Taiwan.
Consistent with its corporate purposes, the MECO was "authorized" by the Philippine government to perform certain
"consular and other functions" relating to the promotion, protection and facilitation of Philippine interests in
Taiwan.99 The full extent of such authorized functions are presently detailed in Sections 1 and 2 of EO No. 15, s.
2001:
SECTION 1. Consistent with its corporate purposes and subject to the conditions stated in Section 3 hereof, MECO
is hereby authorized to assist in the performance of the following functions:
1. Formulation and implementation of a program to attract and promote investments from Taiwan to
Philippine industries and businesses, especially in manufacturing, tourism, construction and other
preferred areas of investments;
2. Promotion of the export of Philippine products and Filipino manpower services, including Philippine
management services, to Taiwan;
3. Negotiation and/or assistance in the negotiation and conclusion of agreements or other arrangements
concerning trade, investment, economic cooperation, technology transfer, banking and finance, scientific,
cultural, educational and other modes of cooperative endeavors between the Philippines and Taiwan, on a
people-to-people basis, in accordance with established rules and regulations;
4. Reporting on, and identification of, employment and business opportunities in Taiwan for the promotion
of Philippine exports, manpower and management services, and tourism;
5. Dissemination in Taiwan of information on the Philippines, especially in the fields of trade, tourism, labor,
economic cooperation, and cultural, educational and scientific endeavors;
6. Conduct of periodic assessment of market conditions in Taiwan, including submission of trade statistics
and commercial reports for use of Philippine industries and businesses; and
7. Facilitation, fostering and cultivation of cultural, sports, social, and educational exchanges between the
peoples of the Philippines and Taiwan.
SECTION 2. In addition to the above-mentioned authority and subject to the conditions stated in Section 3 hereof,
MECO, through its branch offices in Taiwan, is hereby authorized to perform the following functions:
1. Issuance of temporary visitors visas and transit and crew list visas, and such other visa services as may
be authorized by the Department of Foreign Affairs;
2. Issuance, renewal, extension or amendment of passports of Filipino citizens in accordance with existing
regulations, and provision of such other passport services as may be required under the circumstances;
3. Certification or affirmation of the authenticity of documents submitted for authentication;
4. Providing translation services;
5. Assistance and protection to Filipino nationals and other legal/juridical persons working or residing in
Taiwan, including making representations to the extent allowed by local and international law on their
behalf before civil and juridical authorities of Taiwan; and
6. Collection of reasonable fees on the first four (4) functions enumerated above to defray the cost of its
operations.
A perusal of the above functions of the MECO reveals its uncanny similarity to some of the functions typically
performed by the DFA itself, through the latters diplomatic and consular missions.100 The functions of the MECO, in
other words, are of the kind that would otherwise be performed by the Philippines own diplomatic and consular
organs, if not only for the governments acquiescence that they instead be exercised by the MECO.
Evidently, the functions vested in the MECO are impressed with a public aspect.
The MECO Is Not Owned or Controlled by the Government Organization as a non-stock corporation and the mere
performance of functions with a public aspect, however, are not by themselves sufficient to consider the MECO as a
GOCC. In order to qualify as a GOCC, a corporation must also, if not more importantly, be owned by the
government.
The government owns a stock or non-stock corporation if it has controlling interest in the corporation. In a stock
corporation, the controlling interest of the government is assured by its ownership of at least fifty-one percent (51%)
of the corporate capital stock.101 In a non-stock corporation, like the MECO, jurisprudence teaches that the
controlling interest of the government is affirmed when "at least majority of the members are government officials
holding such membership by appointment or designation"102 or there is otherwise "substantial participation of the
government in the selection" of the corporations governing board.103
In this case, the petitioner argues that the government has controlling interest in the MECO because it is the
President of the Philippines that indirectly appoints the directors of the corporation.104 The petitioner claims that the
President appoints directors of the MECO thru "desire letters" addressed to the corporations board.105 As evidence,
the petitioner cites the assumption of one Mr. Antonio Basilio as chairman of the board of directors of the MECO in
2001, which was allegedly accomplished when former President Macapagal-Arroyo, through a memorandum dated
20 February 2001, expressed her "desire" to the board of directors of the MECO for the election of Mr. Basilio as
chairman.106
The MECO, however, counters that the "desire letters" that the President transmits are merely recommendatory and
not binding on it.107 The MECO maintains that, as a corporation organized under the Corporation Code, matters
relating to the election of its directors and officers, as well as its membership, are ultimately governed by the
appropriate provisions of the said code, its articles of incorporation and its by-laws.108
As between the contrasting arguments, We find the contention of the MECO to be the one more consistent with the
law.
The fact of the incorporation of the MECO under the Corporation Code is key. The MECO was correct in postulating
that, as a corporation organized under the Corporation Code, it is governed by the appropriate provisions of the said
code, its articles of incorporation and its by-laws. In this case, it is the by-laws109 of the MECO that stipulates that its
directors are elected by its members; its officers are elected by its directors; and its members, other than the original
incorporators, are admitted by way of a unanimous board resolution, to wit:
SECTION II. MEMBERSHIP
Article 2. Members shall be classified as (a) Regular and (b) Honorary.
(a) Regular members shall consist of the original incorporators and such other members who, upon
application for membership, are unanimously admitted by the Board of Directors.
(b) Honorary member A person of distinction in business who as sympathizer of the objectives of the
corporation, is invited by the Board to be an honorary member.
SECTION III. BOARD OF DIRECTORS
Article 3. At the first meeting of the regular members, they shall organize and constitute themselves as a Board
composed of five (5) members, including its Chairman, each of whom as to serve until such time as his own
successor shall have been elected by the regular members in an election called for the purpose. The number of
members of the Board shall be increased to seven (7) when circumstances so warrant and by means of a majority
vote of the Board members and appropriate application to and approval by the Securities and Exchange
Commission. Unless otherwise provided herein or by law, a majority vote of all Board members present shall be
necessary to carry out all Board resolutions.
During the same meeting, the Board shall also elect its own officers, including the designation of the principal officer
who shall be the Chairman. In line with this, the Chairman shall also carry the title Chief Executive Officer. The officer
who shall head the branch or office for the agency that may be established abroad shall have the title of Director and
Resident Representative. He will also be the Vice-Chairman. All other members of the Board shall have the title of
Director.
xxxx
SECTION IV. EXECUTIVE COMMITTEE
Article 5. There shall be established an Executive Committee composed of at least three (3) members of the Board.
The members of the Executive Committee shall be elected by the members of the Board among themselves.
xxxx
The categorical exclusion of the MECO from a GOCC makes it easier to exclude the same from any other class of
government instrumentality. The other government instrumentalities i.e., the regulatory agencies, chartered
institutions and GCE/GICP are all, by explicit or implicit definition, creatures of the law.110 The MECO cannot be any
other instrumentality because it was, as mentioned earlier, merely incorporated under the Corporation Code.
Hence, unless its legality is questioned, and in this case it was not, the fact that the MECO is operating under the
policy supervision of the DTI is no longer a relevant issue to be reckoned with for purposes of this case.
For whatever it is worth, however, and without justifying anything, it is easy enough for this Court to understand the
rationale, or necessity even, of the executive branch placing the MECO under the policy supervision of one of its
agencies.
It is evident, from the peculiar circumstances surrounding its incorporation, that the MECO was not intended to
operate as any other ordinary corporation. And it is not. Despite its private origins, and perhaps deliberately so, the
MECO was "entrusted"111 by the government with the "delicate and precarious"112 responsibility of pursuing
"unofficial"113 relations with the people of a foreign land whose government the Philippines is bound not to
recognize. The intricacy involved in such undertaking is the possibility that, at any given time in fulfilling the purposes
for which it was incorporated, the MECO may find itself engaged in dealings or activities that can directly contradict
the Philippines commitment to the One China policy of the PROC. Such a scenario can only truly be avoided if the
executive department exercises some form of oversight, no matter how limited, over the operations of this otherwise
private entity.
Indeed, from hindsight, it is clear that the MECO is uniquely situated as compared with other private corporations.
From its over-reaching corporate objectives, its special duty and authority to exercise certain consular functions, up
to the oversight by the executive department over its operationsall the while maintaining its legal status as a nongovernmental entitythe MECO is, for all intents and purposes, sui generis.
Certain Accounts of the MECO May
Be Audited By the COA.
SECTION VI. OFFICERS: DUTIES, COMPENSATION

We now come to the COAs contention.
Article 8. The officers of the corporation shall consist of a Chairman of the Board, Vice-Chairman, Chief Finance
Officer, and a Secretary. Except for the Secretary, who is appointed by the Chairman of the Board, other officers and
employees of the corporation shall be appointed by the Board.
The Deputy Representative and other officials and employees of a branch office or agency abroad are appointed
solely by the Vice Chairman and Resident Representative concerned. All such appointments however are subject to
ratification by the Board.
It is significant to note that none of the original incorporators of the MECO were shown to be government officials at
the time of the corporations organization. Indeed, none of the members, officers or board of directors of the MECO,
from its incorporation up to the present day, were established as government appointees or public officers
designated by reason of their office. There is, in fact, no law or executive order that authorizes such an appointment
or designation. Hence, from a strictly legal perspective, it appears that the presidential "desire letters" pointed out by
petitionerif such letters even exist outside of the case of Mr. Basilioare, no matter how strong its persuasive
effect may be, merely recommendatory.
The MECO Is Not a Government Instrumentality; It Is a Sui Generis Entity.
The COA argues that, despite being a non-governmental entity, the MECO may still be audited with respect to the
"verification fees" for overseas employment documents that the latter collects from Taiwanese employers on behalf of
the DOLE.114 The COA claims that, under Joint Circular No. 3-99, the MECO is mandated to remit to the national
government a portion of such "verification fees."115 The COA, therefore, classifies the MECO as a nongovernmental entity "required to pay xxx government share" per the Audit Code.116
We agree that the accounts of the MECO pertaining to its collection of "verification fees" is subject to the audit
jurisdiction of the COA. However, We digress from the view that such accounts are the only ones that ought to be
audited by the COA. Upon careful evaluation of the information made available by the records vis--vis the spirit and
the letter of the laws and executive issuances applicable, We find that the accounts of the MECO pertaining to the
fees it was authorized to collect under Section 2(6) of EO No. 15, s. 2001, are likewise subject to the audit
jurisdiction of the COA.
Verification Fees Collected by the MECO
In its comment,117 the MECO admitted that roughly 9% of its income is derived from its share in the "verification
fees" for overseas employment documents it collects on behalf of the DOLE.
The "verification fees" mentioned here refers to the "service fee for the verification of overseas employment
contracts, recruitment agreement or special powers of attorney" that the DOLE was authorized to collect under
Section 7 of EO No. 1022,118 which was issued by President Ferdinand E. Marcos on 1 May 1985. These fees are
supposed to be collected by the DOLE from the foreign employers of OFWs and are intended to be used for "the
promotion of overseas employment and for welfare services to Filipino workers within the area of jurisdiction of
[concerned] foreign missions under the administration of the [DOLE]."119
Joint Circular 3-99 was issued by the DOLE, DFA, the Department of Budget Management, the Department of
Finance and the COA in an effort to implement Section 7 of Executive Order No. 1022.120 Thus, under Joint Circular
3-99, the following officials have been tasked to be the "Verification Fee Collecting Officer" on behalf of the
DOLE:121
1. The labor attach or duly authorized overseas labor officer at a given foreign post, as duly designated
by the DOLE Secretary;
Evidently, and just like the peculiarity that attends the DOLE "verification fees," there is no consular office for the
collection of the "consular fees." Thus, the authority for the MECO to collect the "reasonable fees," vested unto it by
the executive order.
The "consular fees," although held and expended by the MECO by virtue of EO No. 15, s. 2001, are, without
question, derived from the exercise by the MECO of consular functionsfunctions it performs by and only through
special authority from the government. There was never any doubt that the visas, passports and other documents
that the MECO issues pursuant to its authorized functions still emanate from the Philippine government itself.
Such fees, therefore, are received by the MECO to be used strictly for the purpose set out under EO No. 15, s. 2001.
They must be reasonable as the authorization requires. It is the government that has ultimate control over the
disposition of the "consular fees," which control the government did exercise when it provided in Section 2(6) of EO
No. 15, s. 2001 that such funds may be kept by the MECO "to defray the cost of its operations."
The Accounts of the MECO Pertaining to the Verification Fees and Consular Fees May Be Audited by the COA.
2. In foreign posts where there is no labor attach or duly authorized overseas labor officer, the finance
officer or collecting officer of the DFA duly deputized by the DOLE Secretary as approved by the DFA
Secretary;
3. In the absence of such finance officer or collecting officer, the alternate duly designated by the head of
the foreign post.
Since the Philippines does not maintain an official post in Taiwan, however, the DOLE entered into a "series" of
Memorandum of Agreements with the MECO, which made the latter the formers collecting agent with respect to the
"verification fees" that may be due from Taiwanese employers of OFWs.122 Under the 27 February 2004
Memorandum of Agreement between DOLE and the MECO, the "verification fees" to be collected by the latter are to
be allocated as follows: (a) US$ 10 to be retained by the MECO as administrative fee, (b) US $10 to be remitted to
the DOLE, and (c) US$ 10 to be constituted as a common fund of the MECO and DOLE.123
Evidently, the entire "verification fees" being collected by the MECO are receivables of the DOLE.124 Such receipts
pertain to the DOLE by virtue of Section 7 of EO No. 1022.
Consular Fees Collected by the MECO
Aside from the DOLE "verification fees," however, the MECO also collects "consular fees," or fees it collects from the
exercise of its delegated consular functions.
The authority behind "consular fees" is Section 2(6) of EO No. 15, s. 2001. The said section authorizes the MECO to
collect "reasonable fees" for its performance of the following consular functions:
1. Issuance of temporary visitors visas and transit and crew list visas, and such other visa services as may
be authorized by the DFA;
2. Issuance, renewal, extension or amendment of passports of Filipino citizens in accordance with existing
regulations, and provision of such other passport services as may be required under the circumstances;
3. Certification or affirmation of the authenticity of documents submitted for authentication; and
4. Providing translation services.
Section 14(1), Book V of the Administrative Code authorizes the COA to audit accounts of non-governmental entities
"required to pay xxx or have government share" but only with respect to "funds xxx coming from or through the
government." This provision of law perfectly fits the MECO:
First. The MECO receives the "verification fees" by reason of being the collection agent of the DOLEa government
agency. Out of its collections, the MECO is required, by agreement, to remit a portion thereof to the DOLE. Hence,
the MECO is accountable to the government for its collections of such "verification fees" and, for that purpose, may
be audited by the COA.
Second. Like the "verification fees," the "consular fees" are also received by the MECO through the government,
having been derived from the exercise of consular functions entrusted to the MECO by the government. Hence, the
MECO remains accountable to the government for its collections of "consular fees" and, for that purpose, may be
audited by the COA.
Tersely put, the 27 February 2008 Memorandum of Agreement between the DOLE and the MECO and Section 2(6)
of EO No. 15, s. 2001, vis--vis, respectively, the "verification fees" and the "consular fees," grant and at the same
time limit the authority of the MECO to collect such fees. That grant and limit require the audit by the COA of the
collections thereby generated.
Conclusion
The MECO is not a GOCC or government instrumentality. It is a sui generis private entity especially entrusted by the
government with the facilitation of unofficial relations with the people in Taiwan without jeopardizing the countrys
faithful commitment to the One China policy of the PROC. However, despite its non-governmental character, the
MECO handles government funds in the form of the "verification fees" it collects on behalf of the DOLE and the
"consular fees" it collects under Section 2(6) of EO No. 15, s. 2001. Hence, under existing laws, the accounts of the
MECO pertaining to its collection of such "verification fees" and "consular fees" should be audited by the COA.
WHEREFORE, premises considered, the petition is PARTIALLY GRANTED. The Manila Economic and Cultural
Office is hereby declared a non-governmental entity. However, the accounts of the Manila Economic and Cultural
Office pertaining to: the verification fees contemplated by Section 7 of Executive Order No. 1022 issued 1 May 1985,
that the former collects on behalf of the Department of Labor and Employment, and the fees it was authorized to
collect under Section 2(6) of Executive Order No. 15 issued 16 May 2001, are subject to the audit jurisdiction of the
COA.
No costs.
SO ORDERED.
G.R. No. 203335

February 11, 2014
JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL and ERNESTO
SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND COMMUNICATIONS TECHNOLOGY
OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE and THE DIRECTOR OF THE NATIONAL
BUREAU OF INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203299
LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL POLICE, Respondents.
x-----------------------x
G.R. No. 203306
ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY S. YAP, BERTENI
"TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E. RENTA, CIRILO P.
SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino III, SENATE OF THE
PHILIPPINES, and HOUSE OF REPRESENTATIVES, Respondents.
x-----------------------x
G.R. No. 203359
SENATOR TEOFISTO DL GUINGONA III, Petitioner,
vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, and DIRECTOR
OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203378
ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY L. ROQUE,
JR., ROMEL R. BAGARES, and GILBERT T. ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE DEPARTMENT OF
JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU OF
INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE INFORMATION AND COMMUNICATIONS
TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE AND TECHNOLOGY, Respondents.
x-----------------------x
G.R. No. 203391
HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF ANAKBAYAN, MA.
KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE THERESE BAGUISI OF THE NATIONAL
UNION OF STUDENTS OF THE PHILIPPINES, ET AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of President Benigno Simeon
Aquino III, LEILA DE LIMA in her capacity as Secretary of Justice, Respondents.
x-----------------------x
G.R. No. 203407
BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR., National Artist
BIENVENIDO L. LUMBERA, Chairperson of Concerned Artists of the Philippines, ELMER C. LABOG,
Chairperson of Kilusang Mayo Uno, CRISTINA E. PALABAY, Secretary General of Karapatan, FERDINAND R.
GAITE, Chairperson of COURAGE, JOEL B. MAGLUNSOD, Vice President of Anakpawis Party-List, LANA R.
LINABAN, Secretary General Gabriela Women's Party, ADOLFO ARES P. GUTIERREZ, and JULIUS GARCIA
MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines, PAQUITO N. OCHOA, JR.,
Executive Secretary, SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT JUAN PONCE
ENRILE, HOUSE OF REPRESENTATIVES, represented by SPEAKER FELICIANO BELMONTE, JR., LEILA DE
LIMA, Secretary of the Department of Justice, LOUIS NAPOLEON C. CASAMBRE, Executive Director of the
Information and Communications Technology Office, NONNATUS CAESAR R. ROJAS, Director of the
National Bureau of Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the Philippine National Police,
MANUEL A. ROXAS II, Secretary of the Department of the Interior and Local Government,Respondents.
x-----------------------x
G.R. No. 203440
MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY PAOLO J. SANTIAGO,
GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN (all of the Ateneo Human Rights
Center), Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary, HONORABLE LEILA DE LIMA in her
capacity as Secretary of Justice, HONORABLE MANUEL ROXAS in his capacity as Secretary of the
Department of Interior and Local Government, The CHIEF of the Philippine National Police, The DIRECTOR
of the National Bureau of Investigation (all of the Executive Department of Government),Respondents.
x-----------------------x
G.R. No. 203453
NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS INSTITUTE (PPI),
CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA CARRANZA PARAAN, MELINDA
QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE PETITIONERS IN THE ePETITION http://www.nujp.org/no-to-ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE INTERIOR AND
LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR GENERAL OF
THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, THE
CYBERCRIME INVESTIGATION AND COORDINATING CENTER, AND ALL AGENCIES AND
INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS,
ORDERS, DIRECTION IN RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO. 10175,Respondents.
x-----------------------x
G.R. No. 203454
PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,
vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT,Respondents.
x-----------------------x
G.R. No. 203469
ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK RONALD C.
RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A. LOZADA; GERARD ADRIAN
P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN; BRENDALYN P. RAMIREZ; MAUREEN A.
HERMITANIO; KRISTINE JOY S. REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON; BENRALPH S.
YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR; and PINOY EXPAT/OFW BLOG
AWARDS, INC. COORDINATOR PEDRO E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the Republic of the Philippines;
SENATE OF THE PHILIPPINES, represented by HON. JUAN PONCE ENRILE, in his capacity as Senate
President; HOUSE OF REPRESENTATIVES, represented by FELICIANO R. BELMONTE, JR., in his capacity
as Speaker of the House of Representatives; HON. PAQUITO N. OCHOA, JR., in his capacity as Executive
Secretary; HON. LEILA M. DE LIMA, in her capacity as Secretary of Justice; HON. LOUIS NAPOLEON C.
CASAMBRE, in his capacity as Executive Director, Information and Communications Technology Office;
HON. NONNATUS CAESAR R. ROJAS, in his capacity as Director, National Bureau of Investigation; and
P/DGEN. NICANOR A. BARTOLOME, in his capacity as Chief, Philippine National Police, Respondents.
x-----------------------x
G.R. No. 203501
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President of the Republic of the
Philippines; HON. PAQUITO N. OCHOA, JR., in his official capacity as Executive Secretary; HON. LEILA M.
DE LIMA, in her official capacity as Secretary of Justice; LOUIS NAPOLEON C. CASAMBRE, in his official
capacity as Executive Director, Information and Communications Technology Office; NONNATUS CAESAR
R. ROJAS, in his official capacity as Director of the National Bureau of Investigation; and DIRECTOR
GENERAL NICANOR A. BARTOLOME, in his official capacity as Chief of the Philippine National
Police, Respondents.
x-----------------------x
G.R. No. 203509
BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,
vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.
x-----------------------x
G.R. No. 203515
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D. ANTIPORDA in his capacity
as President and in his personal capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF JUSTICE,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL
BUREAU OF INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT AND ALL OTHER
GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE AND/OR IMPLEMENTATION OF
REPUBLIC ACT 10175, Respondents.
x-----------------------x
G.R. No. 203518
PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE COLLECTIVE FOR
MODERN HEROISM, represented by Leni Velasco, PARTIDO LAKAS NG MASA, represented by Cesar S.
Melencio, FRANCIS EUSTON R. ACERO, MARLON ANTHONY ROMASANTA TONSON, TEODORO A. CASIO,
NOEMI LARDIZABAL-DADO, IMELDA ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M. RAGRAGIO,
MARIA FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA TOBIAS
SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO, ROMEO FACTOLERIN,
NAOMI L. TUPAS, KENNETH KENG, ANA ALEXANDRA C. CASTRO, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT, THE SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE DIRECTOR OF THE
INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION,
THE CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ OFFICE OF CYBERCRIME, and THE
OTHER MEMBERS OF THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, Respondents.
DECISION
ABAD, J.:
These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175, the Cybercrime
Prevention Act of 2012, unconstitutional and void.
The Facts and the Case
The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or computer, a person
can connect to the internet, a system that links him to other computers and enable him, among other things, to:
1. Access virtual libraries and encyclopedias for all kinds of information that he needs for research, study,
amusement, upliftment, or pure curiosity;
2. Post billboard-like notices or messages, including pictures and videos, for the general public or for
special audiences like associates, classmates, or friends and read postings from them;
3. Advertise and promote goods or services and make purchases and payments;
4. Inquire and do business with institutional entities like government agencies, banks, stock exchanges,
trade houses, credit card companies, public utilities, hospitals, and schools; and
5. Communicate in writing or by voice with any person through his e-mail address or telephone.
This is cyberspace, a system that accommodates millions and billions of simultaneous and ongoing individual
accesses to and uses of the internet. The cyberspace is a boon to the need of the current generation for greater
information and facility of communication. But all is not well with the system since it could not filter out a number of
persons of ill will who would want to use cyberspace technology for mischiefs and crimes. One of them can, for
instance, avail himself of the system to unjustly ruin the reputation of another or bully the latter by posting defamatory
statements against him that people can read.
And because linking with the internet opens up a user to communications from others, the ill-motivated can use the
cyberspace for committing theft by hacking into or surreptitiously accessing his bank account or credit card or
defrauding him through false representations. The wicked can use the cyberspace, too, for illicit trafficking in sex or
for exposing to pornography guileless children who have access to the internet. For this reason, the government has
a legitimate right to regulate the use of cyberspace and contain and punish wrongdoings.
Notably, there are also those who would want, like vandals, to wreak or cause havoc to the computer systems and
networks of indispensable or highly useful institutions as well as to the laptop or computer programs and memories
of innocent individuals. They accomplish this by sending electronic viruses or virtual dynamites that destroy those
computer systems, networks, programs, and memories. The government certainly has the duty and the right to
prevent these tomfooleries from happening and punish their perpetrators, hence the Cybercrime Prevention Act.
But petitioners claim that the means adopted by the cybercrime law for regulating undesirable cyberspace activities
violate certain of their constitutional rights. The government of course asserts that the law merely seeks to
reasonably put order into cyberspace activities, punish wrongdoings, and prevent hurtful attacks on the system.
Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013 the Court extended
the original 120-day temporary restraining order (TRO) that it earlier issued on October 9, 2012, enjoining
respondent government agencies from implementing the cybercrime law until further orders.
The Issues Presented
Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362 of the RPC on the crime of
libel.
Petitioners challenge the constitutionality of the following provisions of the cybercrime law that regard certain acts as
crimes and impose penalties for their commission as well as provisions that would enable the government to track
down and penalize violators. These provisions are:
The Rulings of the Court

Section 4(a)(1)
a. Section 4(a)(1) on Illegal Access;

Section 4(a)(1) provides:
b. Section 4(a)(3) on Data Interference;
Section 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable under this Act:
c. Section 4(a)(6) on Cyber-squatting;
(a) Offenses against the confidentiality, integrity and availability of computer data and systems:
d. Section 4(b)(3) on Identity Theft;
(1) Illegal Access. The access to the whole or any part of a computer system without right.
e. Section 4(c)(1) on Cybersex;
f. Section 4(c)(2) on Child Pornography;
g. Section 4(c)(3) on Unsolicited Commercial Communications;
h. Section 4(c)(4) on Libel;
i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;
j. Section 6 on the Penalty of One Degree Higher;
k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;
Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of laws that interfere with
the fundamental rights of the people and should thus be struck down.
The Court has in a way found the strict scrutiny standard, an American constitutional construct,1 useful in
determining the constitutionality of laws that tend to target a class of things or persons. According to this standard, a
legislative classification that impermissibly interferes with the exercise of fundamental right or operates to the
peculiar class disadvantage of a suspect class is presumed unconstitutional. The burden is on the government to
prove that the classification is necessary to achieve a compelling state interest and that it is the least restrictive
means to protect such interest.2 Later, the strict scrutiny standard was used to assess the validity of laws dealing
with the regulation of speech, gender, or race as well as other fundamental rights, as expansion from its earlier
applications to equal protection.3
In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the application of the strict scrutiny
standard since no fundamental freedom, like speech, is involved in punishing what is essentially a condemnable act
accessing the computer system of another without right. It is a universally condemned conduct.4
l. Section 8 on Penalties;
m. Section 12 on Real-Time Collection of Traffic Data;
n. Section 13 on Preservation of Computer Data;
o. Section 14 on Disclosure of Computer Data;
p. Section 15 on Search, Seizure and Examination of Computer Data;
q. Section 17 on Destruction of Computer Data;
r. Section 19 on Restricting or Blocking Access to Computer Data;
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and
u. Section 26(a) on CICCs Powers and Functions.
Petitioners of course fear that this section will jeopardize the work of ethical hackers, professionals who employ tools
and techniques used by criminal hackers but would neither damage the target systems nor steal information. Ethical
hackers evaluate the target systems security and report back to the owners the vulnerabilities they found in it and
give instructions for how these can be remedied. Ethical hackers are the equivalent of independent auditors who
come into an organization to verify its bookkeeping records.5
Besides, a clients engagement of an ethical hacker requires an agreement between them as to the extent of the
search, the methods to be used, and the systems to be tested. This is referred to as the "get out of jail free
card."6Since the ethical hacker does his job with prior permission from the client, such permission would insulate him
from the coverage of Section 4(a)(1).
Section 4(a)(3) of the Cybercrime Law
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(3) Data Interference. The intentional or reckless alteration, damaging, deletion or deterioration of computer data,
electronic document, or electronic data message, without right, including the introduction or transmission of viruses.
Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to discourage data interference,
it intrudes into the area of protected speech and expression, creating a chilling and deterrent effect on these
guaranteed freedoms.
Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state regulation, may not
be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protected
freedoms.7 But Section 4(a)(3) does not encroach on these freedoms at all. It simply punishes what essentially is a
form of vandalism,8 the act of willfully destroying without right the things that belong to others, in this case their
computer data, electronic document, or electronic data message. Such act has no connection to guaranteed
freedoms. There is no freedom to destroy other peoples computer systems and private documents.
billionaire-philanthropist named "Julio Gandolfo," the law would punish for cyber-squatting both the person who
registers such name because he claims it to be his pseudo-name and another who registers the name because it
happens to be his real name. Petitioners claim that, considering the substantial distinction between the two, the law
should recognize the difference.
But there is no real difference whether he uses "Julio Gandolfo" which happens to be his real name or use it as a
pseudo-name for it is the evil purpose for which he uses the name that the law condemns. The law is reasonable in
penalizing him for acquiring the domain name in bad faith to profit, mislead, destroy reputation, or deprive others who
are not ill-motivated of the rightful opportunity of registering the same. The challenge to the constitutionality of
Section 4(a)(6) on ground of denial of equal protection is baseless.
Section 4(b)(3) of the Cybercrime Law
Section 4(b)(3) provides:
All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem effect9 or the fear of
possible prosecution that hangs on the heads of citizens who are minded to step beyond the boundaries of what is
proper. But to prevent the State from legislating criminal laws because they instill such kind of fear is to render the
state powerless in addressing and penalizing socially harmful conduct.10 Here, the chilling effect that results in
paralysis is an illusion since Section 4(a)(3) clearly describes the evil that it seeks to punish and creates no tendency
to intimidate the free exercise of ones constitutional rights.
Besides, the overbreadth challenge places on petitioners the heavy burden of proving that under no set of
circumstances will Section 4(a)(3) be valid.11 Petitioner has failed to discharge this burden.
Section 4(a)(6) of the Cybercrime Law
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b) Computer-related Offenses:
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(3) Computer-related Identity Theft. The intentional acquisition, use, misuse, transfer, possession, alteration, or
deletion of identifying information belonging to another, whether natural or juridical, without right: Provided: that if no
damage has yet been caused, the penalty imposable shall be one (1) degree lower.
Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy and
correspondence, and transgresses the freedom of the press.
The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet of the right
protected by the guarantee against unreasonable searches and seizures.13 But the Court acknowledged its
existence as early as 1968 in Morfe v. Mutuc,14 it ruled that the right to privacy exists independently of its
identification with liberty; it is in itself fully deserving of constitutional protection.
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(6) Cyber-squatting. The acquisition of domain name over the internet in bad faith to profit, mislead, destroy the
reputation, and deprive others from registering the same, if such a domain name is:
(i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate
government agency at the time of the domain name registration;
(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a personal
name; and
(iii) Acquired without right or with intellectual property interests in it.
Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clause12 in that, not being
narrowly tailored, it will cause a user using his real name to suffer the same fate as those who use aliases or take the
name of another in satire, parody, or any other literary device. For example, supposing there exists a well known
Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy." The Court
explained in "In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon"15 the
relevance of these zones to the right to privacy:
Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is impermissible
unless excused by law and in accordance with customary legal process. The meticulous regard we accord to these
zones arises not only from our conviction that the right to privacy is a "constitutional right" and "the right most valued
by civilized men," but also from our adherence to the Universal Declaration of Human Rights which mandates that,
"no one shall be subjected to arbitrary interference with his privacy" and "everyone has the right to the protection of
the law against such interference or attacks."
Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable searches16 and
seizures, which is the basis of the right to be let alone, and (b) the right to privacy of communication and
correspondence.17 In assessing the challenge that the State has impermissibly intruded into these zones of privacy,
a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that
expectation has been violated by unreasonable government intrusion.18
The usual identifying information regarding a person includes his name, his citizenship, his residence address, his
contact number, his place and date of birth, the name of his spouse if any, his occupation, and similar data.19 The
law punishes those who acquire or use such identifying information without right, implicitly to cause damage.
Petitioners simply fail to show how government effort to curb computer-related identity theft violates the right to
privacy and correspondence as well as the right to due process of law.
The subject of Section 4(c)(1)lascivious exhibition of sexual organs or sexual activityis not novel. Article 201 of
the RPC punishes "obscene publications and exhibitions and indecent shows." The Anti-Trafficking in Persons Act of
2003 penalizes those who "maintain or hire a person to engage in prostitution or pornography."26 The law defines
prostitution as any act, transaction, scheme, or design involving the use of a person by another, for sexual
intercourse or lascivious conduct in exchange for money, profit, or any other consideration.27
Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold water since the specific
conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly, what this section regulates are
specific actions: the acquisition, use, misuse or deletion of personal identifying data of another. There is no
fundamental right to acquire anothers personal data.
The case of Nogales v. People28 shows the extent to which the State can regulate materials that serve no other
purpose than satisfy the market for violence, lust, or pornography.29 The Court weighed the property rights of
individuals against the public welfare. Private property, if containing pornographic materials, may be forfeited and
destroyed. Likewise, engaging in sexual acts privately through internet connection, perceived by some as a right, has
to be balanced with the mandate of the State to eradicate white slavery and the exploitation of women.
Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists would be hindered
from accessing the unrestricted user account of a person in the news to secure information about him that could be
published. But this is not the essence of identity theft that the law seeks to prohibit and punish. Evidently, the theft of
identity information must be intended for an illegitimate purpose. Moreover, acquiring and disseminating information
made public by the user himself cannot be regarded as a form of theft.
The Court has defined intent to gain as an internal act which can be established through the overt acts of the
offender, and it may be presumed from the furtive taking of useful property pertaining to another, unless special
circumstances reveal a different intent on the part of the perpetrator.20 As such, the press, whether in quest of news
reporting or social investigation, has nothing to fear since a special circumstance is present to negate intent to gain
which is required by this Section.
In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds of
obscenity.30The Court will not declare Section 4(c)(1) unconstitutional where it stands a construction that makes it
apply only to persons engaged in the business of maintaining, controlling, or operating, directly or indirectly, the
lascivious exhibition of sexual organs or sexual activity with the aid of a computer system as Congress has intended.
Section 4(c)(2) of the Cybercrime Law
Section 4(c)(2) provides:
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable under this Act:

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(c) Content-related Offenses:
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(1) Cybersex. The willful engagement, maintenance, control, or operation, directly or indirectly, of any lascivious
exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.
Petitioners claim that the above violates the freedom of expression clause of the Constitution.21 They express fear
that private communications of sexual character between husband and wife or consenting adults, which are not
regarded as crimes under the penal code, would now be regarded as crimes when done "for favor" in cyberspace. In
common usage, the term "favor" includes "gracious kindness," "a special privilege or right granted or conceded," or
"a token of love (as a ribbon) usually worn conspicuously."22 This meaning given to the term "favor" embraces
socially tolerated trysts. The law as written would invite law enforcement agencies into the bedrooms of married
couples or consenting individuals.
But the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime Prevention Act give
a proper perspective on the issue. These deliberations show a lack of intent to penalize a "private showing x x x
between and among two private persons x x x although that may be a form of obscenity to some."23 The
understanding of those who drew up the cybercrime law is that the element of "engaging in a business" is necessary
to constitute the illegal cybersex.24 The Act actually seeks to punish cyber prostitution, white slave trade, and
pornography for favor and consideration. This includes interactive prostitution and pornography, i.e., by webcam.25
(2) Child Pornography. The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or the
Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That the penalty to be
imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.
It seems that the above merely expands the scope of the Anti-Child Pornography Act of 200931 (ACPA) to cover
identical activities in cyberspace. In theory, nothing prevents the government from invoking the ACPA when
prosecuting persons who commit child pornography using a computer system. Actually, ACPAs definition of child
pornography already embraces the use of "electronic, mechanical, digital, optical, magnetic or any other means."
Notably, no one has questioned this ACPA provision.
Of course, the law makes the penalty higher by one degree when the crime is committed in cyberspace. But no one
can complain since the intensity or duration of penalty is a legislative prerogative and there is rational basis for such
higher penalty.32 The potential for uncontrolled proliferation of a particular piece of child pornography when
uploaded in the cyberspace is incalculable.
Petitioners point out that the provision of ACPA that makes it unlawful for any person to "produce, direct, manufacture
or create any form of child pornography"33 clearly relates to the prosecution of persons who aid and abet the core
offenses that ACPA seeks to punish.34 Petitioners are wary that a person who merely doodles on paper and
imagines a sexual abuse of a 16-year-old is not criminally liable for producing child pornography but one who
formulates the idea on his laptop would be. Further, if the author bounces off his ideas on Twitter, anyone who replies
to the tweet could be considered aiding and abetting a cybercrime.
The question of aiding and abetting the offense by simply commenting on it will be discussed elsewhere below. For
now the Court must hold that the constitutionality of Section 4(c)(2) is not successfully challenged.
What matters is that the recipient has the option of not opening or reading these mail ads. That is true with spams.
Their recipients always have the option to delete or not to read them.
To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even unsolicited
commercial ads addressed to him. Commercial speech is a separate category of speech which is not accorded the
same level of protection as that given to other constitutionally guaranteed forms of expression but is nonetheless
entitled to protection.36 The State cannot rob him of this right without violating the constitutionally guaranteed
freedom of expression. Unsolicited advertisements are legitimate forms of expression.

Articles 353, 354, and 355 of the Penal Code

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Section 4(c)(4) of the Cyber Crime Law
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(3) Unsolicited Commercial Communications. The transmission of commercial electronic communication with the
use of computer system which seeks to advertise, sell, or offer for sale products and services are prohibited unless:
(i) There is prior affirmative consent from the recipient; or
(ii) The primary intent of the communication is for service and/or administrative announcements from the
sender to its existing users, subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication contains a simple, valid, and reliable way for the
recipient to reject receipt of further commercial electronic messages (opt-out) from the same
source;
(bb) The commercial electronic communication does not purposely disguise the source of the
electronic message; and
(cc) The commercial electronic communication does not purposely include misleading
information in any part of the message in order to induce the recipients to read the message.
The above penalizes the transmission of unsolicited commercial communications, also known as "spam." The term
"spam" surfaced in early internet chat rooms and interactive fantasy games. One who repeats the same sentence or
comment was said to be making a "spam." The term referred to a Monty Pythons Flying Circus scene in which
actors would keep saying "Spam, Spam, Spam, and Spam" when reading options from a menu.35
The Government, represented by the Solicitor General, points out that unsolicited commercial communications or
spams are a nuisance that wastes the storage and network capacities of internet service providers, reduces the
efficiency of commerce and technology, and interferes with the owners peaceful enjoyment of his property.
Transmitting spams amounts to trespass to ones privacy since the person sending out spams enters the recipients
domain without prior permission. The OSG contends that commercial speech enjoys less protection in law.
But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the "efficiency of
computers." Secondly, people, before the arrival of the age of computers, have already been receiving such
unsolicited ads by mail. These have never been outlawed as nuisance since people might have interest in such ads.
Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section 4(c)(4) of the
Cybercrime Prevention Act on cyberlibel.
The RPC provisions on libel read:
Art. 353. Definition of libel. A libel is public and malicious imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or
contempt of a natural or juridical person, or to blacken the memory of one who is dead.
Art. 354. Requirement for publicity. Every defamatory imputation is presumed to be malicious, even if it be true, if
no good intention and justifiable motive for making it is shown, except in the following cases:
1. A private communication made by any person to another in the performance of any legal, moral or social
duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative
or other official proceedings which are not of confidential nature, or of any statement, report or speech
delivered in said proceedings, or of any other act performed by public officers in the exercise of their
functions.
Art. 355. Libel means by writings or similar means. A libel committed by means of writing, printing, lithography,
engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shall
be punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos, or
both, in addition to the civil action which may be brought by the offended party.
The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of it the provisions of
the RPC on libel. Thus Section 4(c)(4) reads:
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(4) Libel. The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as amended,
committed through a computer system or any other similar means which may be devised in the future.
Petitioners lament that libel provisions of the penal code37 and, in effect, the libel provisions of the cybercrime law
carry with them the requirement of "presumed malice" even when the latest jurisprudence already replaces it with the
higher standard of "actual malice" as a basis for conviction.38 Petitioners argue that inferring "presumed malice"
from the accuseds defamatory statement by virtue of Article 354 of the penal code infringes on his constitutionally
guaranteed freedom of expression.
Petitioners would go further. They contend that the laws on libel should be stricken down as unconstitutional for
otherwise good jurisprudence requiring "actual malice" could easily be overturned as the Court has done in Fermin v.
People39 even where the offended parties happened to be public figures.
But General Comment 34 does not say that the truth of the defamatory statement should constitute an allencompassing defense. As it happens, Article 361 recognizes truth as a defense but under the condition that the
accused has been prompted in making the statement by good motives and for justifiable ends. Thus:
Art. 361. Proof of the truth. In every criminal prosecution for libel, the truth may be given in evidence to the court
and if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motives
and for justifiable ends, the defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless the
imputation shall have been made against Government employees with respect to facts related to the discharge of
their official duties.
In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.
The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b) publication of
the charge; (c) identity of the person defamed; and (d) existence of malice.40
There is "actual malice" or malice in fact41 when the offender makes the defamatory statement with the knowledge
that it is false or with reckless disregard of whether it was false or not.42 The reckless disregard standard used here
requires a high degree of awareness of probable falsity. There must be sufficient evidence to permit the conclusion
that the accused in fact entertained serious doubts as to the truth of the statement he published. Gross or even
extreme negligence is not sufficient to establish actual malice.43
The prosecution bears the burden of proving the presence of actual malice in instances where such element is
required to establish guilt. The defense of absence of actual malice, even when the statement turns out to be false, is
available where the offended party is a public official or a public figure, as in the cases of Vasquez (a barangay
official) and Borjal (the Executive Director, First National Conference on Land Transportation). Since the penal code
and implicitly, the cybercrime law, mainly target libel against private persons, the Court recognizes that these laws
imply a stricter standard of "malice" to convict the author of a defamatory statement where the offended party is a
public figure. Societys interest and the maintenance of good government demand a full discussion of public
affairs.44
Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize libel. It simply
suggested that defamation laws be crafted with care to ensure that they do not stifle freedom of
expression.48Indeed, the ICCPR states that although everyone should enjoy freedom of expression, its exercise
carries with it special duties and responsibilities. Free speech is not absolute. It is subject to certain restrictions, as
may be necessary and as may be provided by law.49
The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and that the
government has an obligation to protect private individuals from defamation. Indeed, cyberlibel is actually not a new
crime since Article 353, in relation to Article 355 of the penal code, already punishes it. In effect, Section 4(c)(4)
above merely affirms that online defamation constitutes "similar means" for committing libel.
But the Courts acquiescence goes only insofar as the cybercrime law penalizes the author of the libelous statement
or article. Cyberlibel brings with it certain intricacies, unheard of when the penal code provisions on libel were
enacted. The culture associated with internet media is distinct from that of print.
Parenthetically, the Court cannot accept the proposition that its ruling in Fermin disregarded the higher standard of
actual malice or malice in fact when it found Cristinelli Fermin guilty of committing libel against complainants who
were public figures. Actually, the Court found the presence of malice in fact in that case. Thus:
The internet is characterized as encouraging a freewheeling, anything-goes writing style.50 In a sense, they are a
world apart in terms of quickness of the readers reaction to defamatory statements posted in cyberspace, facilitated
by one-click reply options offered by the networking site as well as by the speed with which such reactions are
disseminated down the line to other internet users. Whether these reactions to defamatory statement posted on the
internet constitute aiding and abetting libel, acts that Section 5 of the cybercrime law punishes, is another matter that
the Court will deal with next in relation to Section 5 of the law.
It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations against
complainants. Thus, petitioner cannot, by simply making a general denial, convince us that there was no malice on
her part. Verily, not only was there malice in law, the article being malicious in itself, but there was also malice in fact,
as there was motive to talk ill against complainants during the electoral campaign. (Emphasis ours)
Section 5 of the Cybercrime Law

Section 5 provides:
Indeed, the Court took into account the relatively wide leeway given to utterances against public figures in the above
case, cinema and television personalities, when it modified the penalty of imprisonment to just a fine ofP6,000.00.
But, where the offended party is a private individual, the prosecution need not prove the presence of malice. The law
explicitly presumes its existence (malice in law) from the defamatory character of the assailed statement.45 For his
defense, the accused must show that he has a justifiable reason for the defamatory statement even if it was in fact
true.46
Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the countrys
obligations under the International Covenant of Civil and Political Rights (ICCPR). They point out that in Adonis v.
Republic of the Philippines,47 the United Nations Human Rights Committee (UNHRC) cited its General Comment 34
to the effect that penal defamation laws should include the defense of truth.
Sec. 5. Other Offenses. The following acts shall also constitute an offense:
(a) Aiding or Abetting in the Commission of Cybercrime. Any person who willfully abets or aids in the
commission of any of the offenses enumerated in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. Any person who willfully attempts to commit any of the
offenses enumerated in this Act shall be held liable.
Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who willfully abets or aids
in the commission or attempts to commit any of the offenses enumerated as cybercrimes. It suffers from
overbreadth, creating a chilling and deterrent effect on protected expression.
The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding and abetting
sufficiently protects the freedom of expression of "netizens," the multitude that avail themselves of the services of the
internet. He points out that existing laws and jurisprudence sufficiently delineate the meaning of "aiding or abetting" a
crime as to protect the innocent. The Solicitor General argues that plain, ordinary, and common usage is at times
sufficient to guide law enforcement agencies in enforcing the law.51 The legislature is not required to define every
single word contained in the laws they craft.
Aiding or abetting has of course well-defined meaning and application in existing laws. When a person aids or abets
another in destroying a forest,52 smuggling merchandise into the country,53 or interfering in the peaceful picketing of
laborers,54 his action is essentially physical and so is susceptible to easy assessment as criminal in character.
These forms of aiding or abetting lend themselves to the tests of common sense and human experience.
interesting and so shares the link to this apparently defamatory blog on her Twitter account. Nenas "Followers" then
"Retweet" the link to that blog site.
Pamela, a Twitter user, stumbles upon a random persons "Retweet" of Nenas original tweet and posts this on her
Facebook account. Immediately, Pamelas Facebook Friends start Liking and making Comments on the assailed
posting. A lot of them even press the Share button, resulting in the further spread of the original posting into tens,
hundreds, thousands, and greater postings.
But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat blurred. The
idea of "aiding or abetting" wrongdoings online threatens the heretofore popular and unchallenged dogmas of
cyberspace use.
The question is: are online postings such as "Liking" an openly defamatory statement, "Commenting" on it, or
"Sharing" it with others, to be regarded as "aiding or abetting?" In libel in the physical world, if Nestor places on the
office bulletin board a small poster that says, "Armand is a thief!," he could certainly be charged with libel. If Roger,
seeing the poster, writes on it, "I like this!," that could not be libel since he did not author the poster. If Arthur, passing
by and noticing the poster, writes on it, "Correct!," would that be libel? No, for he merely expresses agreement with
the statement on the poster. He still is not its author. Besides, it is not clear if aiding or abetting libel in the physical
world is a crime.
According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have accessed the internet within a
year, translating to about 31 million users.55 Based on a recent survey, the Philippines ranks 6th in the top 10 most
engaged countries for social networking.56 Social networking sites build social relations among people who, for
example, share interests, activities, backgrounds, or real-life connections.57
But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site. Would a reader and his Friends
or Followers, availing themselves of any of the "Like," "Comment," and "Share" reactions, be guilty of aiding or
abetting libel? And, in the complex world of cyberspace expressions of thoughts, when will one be liable for aiding or
abetting cybercrimes? Where is the venue of the crime?
Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people with shared
interests use Facebook to get in touch.58 Users register at this site, create a personal profile or an open book of who
they are, add other users as friends, and exchange messages, including automatic notifications when they update
their profile.59 A user can post a statement, a photo, or a video on Facebook, which can be made visible to anyone,
depending on the users privacy settings.
Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and Share) are
essentially knee-jerk sentiments of readers who may think little or haphazardly of their response to the original
posting. Will they be liable for aiding or abetting? And, considering the inherent impossibility of joining hundreds or
thousands of responding "Friends" or "Followers" in the criminal charge to be filed in court, who will make a choice
as to who should go to jail for the outbreak of the challenged posting?
If the post is made available to the public, meaning to everyone and not only to his friends, anyone on Facebook can
react to the posting, clicking any of several buttons of preferences on the programs screen such as "Like,"
"Comment," or "Share." "Like" signifies that the reader likes the posting while "Comment" enables him to post online
his feelings or views about the same, such as "This is great!" When a Facebook user "Shares" a posting, the original
"posting" will appear on his own Facebook profile, consequently making it visible to his down-line Facebook Friends.
The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when applied to
cyberspace libel. Unless the legislature crafts a cyber libel law that takes into account its unique circumstances and
culture, such law will tend to create a chilling effect on the millions that use this new medium of communication in
violation of their constitutionally-guaranteed right to freedom of expression.
Twitter, on the other hand, is an internet social networking and microblogging service that enables its users to send
and read short text-based messages of up to 140 characters. These are known as "Tweets." Microblogging is the
practice of posting small pieces of digital contentwhich could be in the form of text, pictures, links, short videos, or
other mediaon the internet. Instead of friends, a Twitter user has "Followers," those who subscribe to this particular
users posts, enabling them to read the same, and "Following," those whom this particular user is subscribed to,
enabling him to read their posts. Like Facebook, a Twitter user can make his tweets available only to his Followers,
or to the general public. If a post is available to the public, any Twitter user can "Retweet" a given posting.
Retweeting is just reposting or republishing another persons tweet without the need of copying and pasting it.
In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b) the blog service
provider like Yahoo; c) the internet service provider like PLDT, Smart, Globe, or Sun; d) the internet caf that may
have provided the computer used for posting the blog; e) the person who makes a favorable comment on the blog;
and f) the person who posts a link to the blog site.60 Now, suppose Maria (a blogger) maintains a blog on
WordPress.com (blog service provider). She needs the internet to access her blog so she subscribes to Sun
Broadband (Internet Service Provider).
One day, Maria posts on her internet account the statement that a certain married public official has an illicit affair
with a movie star. Linda, one of Marias friends who sees this post, comments online, "Yes, this is so true! They are
so immoral." Marias original post is then multiplied by her friends and the latters friends, and down the line to friends
of friends almost ad infinitum. Nena, who is a stranger to both Maria and Linda, comes across this blog, finds it
The United States Supreme Court faced the same issue in Reno v. American Civil Liberties Union,61 a case
involving the constitutionality of the Communications Decency Act of 1996. The law prohibited (1) the knowing
transmission, by means of a telecommunications device, of
"obscene or indecent" communications to any recipient under 18 years of age; and (2) the knowing use of an
interactive computer service to send to a specific person or persons under 18 years of age or to display in a manner
available to a person under 18 years of age communications that, in context, depict or describe, in terms "patently
offensive" as measured by contemporary community standards, sexual or excretory activities or organs.
Those who challenged the Act claim that the law violated the First Amendments guarantee of freedom of speech for
being overbroad. The U.S. Supreme Court agreed and ruled:
The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. 223, is a matter of special
concern for two reasons. First, the CDA is a content-based regulation of speech. The vagueness of such a regulation
raises special U.S. Const. amend. I concerns because of its obvious chilling effect on free speech. Second, the CDA
is a criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA threatens violators
with penalties including up to two years in prison for each act of violation. The severity of criminal sanctions may well
cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images. As a
practical matter, this increased deterrent effect, coupled with the risk of discriminatory enforcement of vague
regulations, poses greater U.S. Const. amend. I concerns than those implicated by certain civil regulations.
xxxx
The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. 223, presents a great threat of censoring speech
that, in fact, falls outside the statute's scope. Given the vague contours of the coverage of the statute, it
unquestionably silences some speakers whose messages would be entitled to constitutional protection. That danger
provides further reason for insisting that the statute not be overly broad. The CDAs burden on protected speech
cannot be justified if it could be avoided by a more carefully drafted statute. (Emphasis ours)
Libel in the cyberspace can of course stain a persons image with just one click of the mouse. Scurrilous statements
can spread and travel fast across the globe like bad news. Moreover, cyberlibel often goes hand in hand with
cyberbullying that oppresses the victim, his relatives, and friends, evoking from mild to disastrous reactions. Still, a
governmental purpose, which seeks to regulate the use of this cyberspace communication technology to protect a
persons reputation and peace of mind, cannot adopt means that will unnecessarily and broadly sweep, invading the
area of protected freedoms.62
If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet users will
suppress otherwise robust discussion of public issues. Democracy will be threatened and with it, all liberties. Penal
laws should provide reasonably clear guidelines for law enforcement officials and triers of facts to prevent arbitrary
and discriminatory enforcement.63 The terms "aiding or abetting" constitute broad sweep that generates chilling
effect on those who express themselves through cyberspace posts, comments, and other messages.64 Hence,
Section 5 of the cybercrime law that punishes "aiding or abetting" libel on the cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-forvagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully delineated. As Justice Antonio
T. Carpio explained in his dissent in Romualdez v. Commission on Elections,65 "we must view these statements of
the Court on the inapplicability of the overbreadth and vagueness doctrines to penal statutes as appropriate only
insofar as these doctrines are used to mount facial challenges to penal statutes not involving free speech."
In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise any
constitutional ground absence of due process, lack of fair notice, lack of ascertainable standards, overbreadth, or
vagueness. Here, one can challenge the constitutionality of a statute only if he asserts a violation of his own rights. It
prohibits one from assailing the constitutionality of the statute based solely on the violation of the rights of third
persons not before the court. This rule is also known as the prohibition against third-party standing.66
But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the constitutionality of a
statute even if he claims no violation of his own rights under the assailed statute where it involves free speech on
grounds of overbreadth or vagueness of the statute.
The rationale for this exception is to counter the "chilling effect" on protected speech that comes from statutes
violating free speech. A person who does not know whether his speech constitutes a crime under an overbroad or
vague law may simply restrain himself from speaking in order to avoid being charged of a crime. The overbroad or
vague law thus chills him into silence.67
As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is inevitable that any
government threat of punishment regarding certain uses of the medium creates a chilling effect on the
constitutionally-protected freedom of expression of the great masses that use it. In this case, the particularly complex
web of interaction on social media websites would give law enforcers such latitude that they could arbitrarily or
selectively enforce the law.
Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by liking it? Netizens
are not given "fair notice" or warning as to what is criminal conduct and what is lawful conduct. When a case is filed,
how will the court ascertain whether or not one netizens comment aided and abetted a cybercrime while another
comment did not?
Of course, if the "Comment" does not merely react to the original posting but creates an altogether new defamatory
story against Armand like "He beats his wife and children," then that should be considered an original posting
published on the internet. Both the penal code and the cybercrime law clearly punish authors of defamatory
publications. Make no mistake, libel destroys reputations that society values. Allowed to cascade in the internet, it will
destroy relationships and, under certain circumstances, will generate enmity and tension between social or economic
groups, races, or religions, exacerbating existing tension in their relationships.
In regard to the crime that targets child pornography, when "Google procures, stores, and indexes child pornography
and facilitates the completion of transactions involving the dissemination of child pornography," does this make
Google and its users aiders and abettors in the commission of child pornography crimes?68 Byars highlights a
feature in the American law on child pornography that the Cybercrimes law lacksthe exemption of a provider or
notably a plain user of interactive computer service from civil liability for child pornography as follows:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information
provided by another information content provider and cannot be held civilly liable for any action voluntarily taken in
good faith to restrict access to or availability of material that the provider or user considers to be obscene...whether
or not such material is constitutionally protected.69
When a person replies to a Tweet containing child pornography, he effectively republishes it whether wittingly or
unwittingly. Does this make him a willing accomplice to the distribution of child pornography? When a user
downloads the Facebook mobile application, the user may give consent to Facebook to access his contact details. In
this way, certain information is forwarded to third parties and unsolicited commercial communication could be
disseminated on the basis of this information.70 As the source of this information, is the user aiding the distribution of
this communication? The legislature needs to address this clearly to relieve users of annoying fear of possible
criminal prosecution.
Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on the part of
internet users because of its obvious chilling effect on the freedom of expression, especially since the crime of aiding
or abetting ensnares all the actors in the cyberspace front in a fuzzy way. What is more, as the petitioners point out,
formal crimes such as libel are not punishable unless consummated.71 In the absence of legislation tracing the
interaction of netizens and their level of responsibility such as in other countries, Section 5, in relation to Section 4(c)
(4) on Libel, Section 4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography,
cannot stand scrutiny.
But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be permitted to apply to
Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference,
Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting,
Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on
Computer-related Identity Theft, and Section 4(c)(1) on Cybersex. None of these offenses borders on the exercise of
the freedom of expression.
The crime of willfully attempting to commit any of these offenses is for the same reason not objectionable. A hacker
may for instance have done all that is necessary to illegally access another partys computer system but the security
employed by the systems lawful owner could frustrate his effort. Another hacker may have gained access to
usernames and passwords of others but fail to use these because the system supervisor is alerted.72 If Section 5
that punishes any person who willfully attempts to commit this specific offense is not upheld, the owner of the
username and password could not file a complaint against him for attempted hacking. But this is not right. The
hacker should not be freed from liability simply because of the vigilance of a lawful owner or his supervisor.
Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent.73 While this may be true
with respect to cybercrimes that tend to sneak past the area of free expression, any attempt to commit the other acts
specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4), Section 4(a)(5), Section 4(a)(6), Section
4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well as the actors aiding and abetting the commission
of such acts can be identified with some reasonable certainty through adroit tracking of their works. Absent concrete
proof of the same, the innocent will of course be spared.
Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with imprisonment of prision
mayor or a fine of not more than Five hundred thousand pesos (PhP500,000.00) or both.
Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by,
through and with the use of information and communications technologies shall be covered by the relevant
provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for
by the Revised Penal Code, as amended, and special laws, as the case may be.
Section 6 merely makes commission of existing crimes through the internet a qualifying circumstance. As the
Solicitor General points out, there exists a substantial distinction between crimes committed through the use of
information and communications technology and similar crimes committed using other means. In using the
technology in question, the offender often evades identification and is able to reach far more victims or cause greater
harm. The distinction, therefore, creates a basis for higher penalties for cybercrimes.
If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion temporal or a
fine of at least Five hundred thousand pesos (PhP500,000.00) up to maximum amount commensurate to the
damage incurred or both, shall be imposed.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be punished with
imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (PhP200,000.00) but not exceeding
One million pesos (PhP1,000,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall be punished with
the penalties as enumerated in Republic Act No. 9775 or the "Anti-Child Pornography Act of 2009:" Provided, That
the penalty to be imposed shall be one (1) degree higher than that provided for in Republic Act No. 9775, if
committed through a computer system.

Section 7 provides:
Sec. 7. Liability under Other Laws. A prosecution under this Act shall be without prejudice to any liability for
violation of any provision of the Revised Penal Code, as amended, or special laws.
The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set of acts may be
prosecuted and penalized simultaneously under two laws, a special law and the Revised Penal Code. When two
different laws define two crimes, prior jeopardy as to one does not bar prosecution of the other although both
offenses arise from the same fact, if each crime involves some important act which is not an essential element of the
other.74 With the exception of the crimes of online libel and online child pornography, the Court would rather leave
the determination of the correct application of Section 7 to actual cases.
Online libel is different. There should be no question that if the published material on print, said to be libelous, is
again posted online or vice versa, that identical material cannot be the subject of two separate libels. The two
offenses, one a violation of Article 353 of the Revised Penal Code and the other a violation of Section 4(c)(4) of R.A.
10175 involve essentially the same elements and are in fact one and the same offense. Indeed, the OSG itself
claims that online libel under Section 4(c)(4) is not a new crime but is one already punished under Article 353.
Section 4(c)(4) merely establishes the computer system as another means of publication.75 Charging the offender
under both laws would be a blatant violation of the proscription against double jeopardy.76
The same is true with child pornography committed online. Section 4(c)(2) merely expands the ACPAs scope so as
to include identical activities in cyberspace. As previously discussed, ACPAs definition of child pornography in fact
already covers the use of "electronic, mechanical, digital, optical, magnetic or any other means." Thus, charging the
offender under both Section 4(c)(2) and ACPA would likewise be tantamount to a violation of the constitutional
prohibition against double jeopardy.
Section 8 provides:
Sec. 8. Penalties. Any person found guilty of any of the punishable acts enumerated in Sections 4(a) and 4(b) of
this Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(PhP200,000.00) up to a maximum amount commensurate to the damage incurred or both.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be punished with
imprisonment of arresto mayor or a fine of at least Fifty thousand pesos (PhP50,000.00) but not exceeding Two
hundred fifty thousand pesos (PhP250,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished with imprisonment
one (1) degree lower than that of the prescribed penalty for the offense or a fine of at least One hundred thousand
pesos (PhP100,000.00) but not exceeding Five hundred thousand pesos (PhP500,000.00) or both.
Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses Against the Confidentiality,
Integrity and Availability of Computer Data and Systems; 4(b) on Computer-related Offenses; 4(a)(5) on Misuse of
Devices; when the crime punishable under 4(a) is committed against critical infrastructure; 4(c)(1) on Cybersex; 4(c)
(2) on Child Pornography; 4(c)(3) on Unsolicited Commercial Communications; and Section 5 on Aiding or Abetting,
and Attempt in the Commission of Cybercrime.
The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here the legislature
prescribed a measure of severe penalties for what it regards as deleterious cybercrimes. They appear proportionate
to the evil sought to be punished. The power to determine penalties for offenses is not diluted or improperly wielded
simply because at some prior time the act or omission was but an element of another offense or might just have
been connected with another crime.77 Judges and magistrates can only interpret and apply them and have no
authority to modify or revise their range as determined by the legislative department.
The courts should not encroach on this prerogative of the lawmaking body.78
Section 12 provides:
Sec. 12. Real-Time Collection of Traffic Data. Law enforcement authorities, with due cause, shall be authorized to
collect or record by technical or electronic means traffic data in real-time associated with specified communications
transmitted by means of a computer system.
Traffic data refer only to the communications origin, destination, route, time, date, size, duration, or type of
underlying service, but not content, nor identities.
All other data to be collected or seized or disclosed will require a court warrant.
Service providers are required to cooperate and assist law enforcement authorities in the collection or recording of
the above-stated information.
making certain important decisions, while informational privacy refers to the interest in avoiding disclosure of
personal matters. It is the latter rightthe right to informational privacythat those who oppose government
collection or recording of traffic data in real-time seek to protect.
The court warrant required under this section shall only be issued or granted upon written application and the
examination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) that
there are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or is
being committed, or is about to be committed; (2) that there are reasonable grounds to believe that evidence that will
be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any such
crimes; and (3) that there are no other means readily available for obtaining such evidence.
Informational privacy has two aspects: the right not to have private information disclosed, and the right to live freely
without surveillance and intrusion.91 In determining whether or not a matter is entitled to the right to privacy, this
Court has laid down a two-fold test. The first is a subjective test, where one claiming the right must have an actual or
legitimate expectation of privacy over a certain matter. The second is an objective test, where his or her expectation
of privacy must be one society is prepared to accept as objectively reasonable.92
Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data in real time as
tending to curtail civil liberties or provide opportunities for official abuse. They claim that data showing where digital
messages come from, what kind they are, and where they are destined need not be incriminating to their senders or
recipients before they are to be protected. Petitioners invoke the right of every individual to privacy and to be
protected from government snooping into the messages or information that they send to one another.
Since the validity of the cybercrime law is being challenged, not in relation to its application to a particular person or
group, petitioners challenge to Section 12 applies to all information and communications technology (ICT) users,
meaning the large segment of the population who use all sorts of electronic devices to communicate with one
another. Consequently, the expectation of privacy is to be measured from the general publics point of view. Without
reasonable expectation of privacy, the right to it would have no basis in fact.
The first question is whether or not Section 12 has a proper governmental purpose since a law may require the
disclosure of matters normally considered private but then only upon showing that such requirement has a rational
relation to the purpose of the law,79 that there is a compelling State interest behind the law, and that the provision
itself is narrowly drawn.80 In assessing regulations affecting privacy rights, courts should balance the legitimate
concerns of the State against constitutional guarantees.81
As the Solicitor General points out, an ordinary ICT user who courses his communication through a service provider,
must of necessity disclose to the latter, a third person, the traffic data needed for connecting him to the recipient ICT
user. For example, an ICT user who writes a text message intended for another ICT user must furnish his service
provider with his cellphone number and the cellphone number of his recipient, accompanying the message sent. It is
this information that creates the traffic data. Transmitting communications is akin to putting a letter in an envelope
properly addressed, sealing it closed, and sending it through the postal service. Those who post letters have no
expectations that no one will read the information appearing outside the envelope.
Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need to put order to the
tremendous activities in cyberspace for public good.82 To do this, it is within the realm of reason that the government
should be able to monitor traffic data to enhance its ability to combat all sorts of cybercrimes.
Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to provide law
enforcement authorities with the power they need for spotting, preventing, and investigating crimes committed in
cyberspace. Crime-fighting is a state business. Indeed, as Chief Justice Sereno points out, the Budapest Convention
on Cybercrimes requires signatory countries to adopt legislative measures to empower state authorities to collect or
record "traffic data, in real time, associated with specified communications."83 And this is precisely what Section 12
does. It empowers law enforcement agencies in this country to collect or record such data.
But is not evidence of yesterdays traffic data, like the scene of the crime after it has been committed, adequate for
fighting cybercrimes and, therefore, real-time data is superfluous for that purpose? Evidently, it is not. Those who
commit the crimes of accessing a computer system without right,84 transmitting viruses,85 lasciviously exhibiting
sexual organs or sexual activity for favor or consideration;86 and producing child pornography87 could easily evade
detection and prosecution by simply moving the physical location of their computers or laptops from day to day. In
this digital age, the wicked can commit cybercrimes from virtually anywhere: from internet cafs, from kindred places
that provide free internet services, and from unregistered mobile internet connectors. Criminals using cellphones
under pre-paid arrangements and with unregistered SIM cards do not have listed addresses and can neither be
located nor identified. There are many ways the cyber criminals can quickly erase their tracks. Those who peddle
child pornography could use relays of computers to mislead law enforcement authorities regarding their places of
operations. Evidently, it is only real-time traffic data collection or recording and a subsequent recourse to courtissued search and seizure warrant that can succeed in ferreting them out.
Petitioners of course point out that the provisions of Section 12 are too broad and do not provide ample safeguards
against crossing legal boundaries and invading the peoples right to privacy. The concern is understandable. Indeed,
the Court recognizes in Morfe v. Mutuc88 that certain constitutional guarantees work together to create zones of
privacy wherein governmental powers may not intrude, and that there exists an independent constitutional right of
privacy. Such right to be left alone has been regarded as the beginning of all freedoms.89
But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme Court classified privacy into two
categories: decisional privacy and informational privacy. Decisional privacy involves the right to independence in
Computer datamessages of all kindstravel across the internet in packets and in a way that may be likened to
parcels of letters or things that are sent through the posts. When data is sent from any one source, the content is
broken up into packets and around each of these packets is a wrapper or header. This header contains the traffic
data: information that tells computers where the packet originated, what kind of data is in the packet (SMS, voice
call, video, internet chat messages, email, online browsing data, etc.), where the packet is going, and how the packet
fits together with other packets.93 The difference is that traffic data sent through the internet at times across the
ocean do not disclose the actual names and addresses (residential or office) of the sender and the recipient, only
their coded internet protocol (IP) addresses. The packets travel from one computer system to another where their
contents are pieced back together.
Section 12 does not permit law enforcement authorities to look into the contents of the messages and uncover the
identities of the sender and the recipient.
For example, when one calls to speak to another through his cellphone, the service providers communications
system will put his voice message into packets and send them to the other persons cellphone where they are refitted
together and heard. The latters spoken reply is sent to the caller in the same way. To be connected by the service
provider, the sender reveals his cellphone number to the service provider when he puts his call through. He also
reveals the cellphone number to the person he calls. The other ways of communicating electronically follow the same
basic pattern.
In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court reasoned that telephone
users in the 70s must realize that they necessarily convey phone numbers to the telephone company in order to
complete a call. That Court ruled that even if there is an expectation that phone numbers one dials should remain
private, such expectation is not one that society is prepared to recognize as reasonable.
In much the same way, ICT users must know that they cannot communicate or exchange data with one another over
cyberspace except through some service providers to whom they must submit certain traffic data that are needed for
a successful cyberspace communication. The conveyance of this data takes them out of the private sphere, making
the expectation to privacy in regard to them an expectation that society is not prepared to recognize as reasonable.
The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of traffic data are
gathered in bulk, pooled together, and analyzed, they reveal patterns of activities which can then be used to create
profiles of the persons under surveillance. With enough traffic data, analysts may be able to determine a persons
close associations, religious views, political affiliations, even sexual preferences. Such information is likely beyond
what the public may expect to be disclosed, and clearly falls within matters protected by the right to privacy. But has
the procedure that Section 12 of the law provides been drawn narrowly enough to protect individual rights?
Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical or electronic
means traffic data in real-time. Petitioners point out that the phrase "due cause" has no precedent in law or
jurisprudence and that whether there is due cause or not is left to the discretion of the police. Replying to this, the
Solicitor General asserts that Congress is not required to define the meaning of every word it uses in drafting the law.
Indeed, courts are able to save vague provisions of law through statutory construction. But the cybercrime law,
dealing with a novel situation, fails to hint at the meaning it intends for the phrase "due cause." The Solicitor General
suggests that "due cause" should mean "just reason or motive" and "adherence to a lawful procedure." But the Court
cannot draw this meaning since Section 12 does not even bother to relate the collection of data to the probable
commission of a particular crime. It just says, "with due cause," thus justifying a general gathering of data. It is akin
to the use of a general search warrant that the Constitution prohibits.
Due cause is also not descriptive of the purpose for which data collection will be used. Will the law enforcement
agencies use the traffic data to identify the perpetrator of a cyber attack? Or will it be used to build up a case against
an identified suspect? Can the data be used to prevent cybercrimes from happening?
The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint. While it says that
traffic data collection should not disclose identities or content data, such restraint is but an illusion. Admittedly,
nothing can prevent law enforcement agencies holding these data in their hands from looking into the identity of their
sender or receiver and what the data contains. This will unnecessarily expose the citizenry to leaked information or,
worse, to extortion from certain bad elements in these agencies.
Section 12, of course, limits the collection of traffic data to those "associated with specified communications." But this
supposed limitation is no limitation at all since, evidently, it is the law enforcement agencies that would specify the
target communications. The power is virtually limitless, enabling law enforcement authorities to engage in "fishing
expedition," choosing whatever specified communication they want. This evidently threatens the right of individuals
to privacy.
The Solicitor General points out that Section 12 needs to authorize collection of traffic data "in real time" because it is
not possible to get a court warrant that would authorize the search of what is akin to a "moving vehicle." But
warrantless search is associated with a police officers determination of probable cause that a crime has been
committed, that there is no opportunity for getting a warrant, and that unless the search is immediately carried out,
the thing to be searched stands to be removed. These preconditions are not provided in Section 12.
The Solicitor General is honest enough to admit that Section 12 provides minimal protection to internet users and
that the procedure envisioned by the law could be better served by providing for more robust safeguards. His bare
assurance that law enforcement authorities will not abuse the provisions of Section 12 is of course not enough. The
grant of the power to track cyberspace communications in real time and determine their sources and destinations
must be narrowly drawn to preclude abuses.95
Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-vagueness doctrine and
the overbreadth doctrine. These doctrines however, have been consistently held by this Court to apply only to free
speech cases. But Section 12 on its own neither regulates nor punishes any type of speech. Therefore, such
analysis is unnecessary.
This Court is mindful that advances in technology allow the government and kindred institutions to monitor
individuals and place them under surveillance in ways that have previously been impractical or even impossible. "All
the forces of a technological age x x x operate to narrow the area of privacy and facilitate intrusions into it. In modern
terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic
and a totalitarian society."96 The Court must ensure that laws seeking to take advantage of these technologies be
written with specificity and definiteness as to ensure respect for the rights that the Constitution guarantees.
Sec. 13. Preservation of Computer Data. The integrity of traffic data and subscriber information relating to
communication services provided by a service provider shall be preserved for a minimum period of six (6) months
from the date of the transaction. Content data shall be similarly preserved for six (6) months from the date of receipt
of the order from law enforcement authorities requiring its preservation.
Law enforcement authorities may order a one-time extension for another six (6) months: Provided, That once
computer data preserved, transmitted or stored by a service provider is used as evidence in a case, the mere
furnishing to such service provider of the transmittal document to the Office of the Prosecutor shall be deemed a
notification to preserve the computer data until the termination of the case.
The service provider ordered to preserve computer data shall keep confidential the order and its compliance.
Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of the right to property. They
liken the data preservation order that law enforcement authorities are to issue as a form of garnishment of personal
property in civil forfeiture proceedings. Such order prevents internet users from accessing and disposing of traffic
data that essentially belong to them.
No doubt, the contents of materials sent or received through the internet belong to their authors or recipients and are
to be considered private communications. But it is not clear that a service provider has an obligation to indefinitely
keep a copy of the same as they pass its system for the benefit of users. By virtue of Section 13, however, the law
now requires service providers to keep traffic data and subscriber information relating to communication services for
at least six months from the date of the transaction and those relating to content data for at least six months from
receipt of the order for their preservation.
Actually, the user ought to have kept a copy of that data when it crossed his computer if he was so minded. The
service provider has never assumed responsibility for their loss or deletion while in its keep.
At any rate, as the Solicitor General correctly points out, the data that service providers preserve on orders of law
enforcement authorities are not made inaccessible to users by reason of the issuance of such orders. The process of
preserving data will not unduly hamper the normal transmission or use of the same.
Sec. 14. Disclosure of Computer Data. Law enforcement authorities, upon securing a court warrant, shall issue an
order requiring any person or service provider to disclose or submit subscribers information, traffic data or relevant
data in his/its possession or control within seventy-two (72) hours from receipt of the order in relation to a valid
complaint officially docketed and assigned for investigation and the disclosure is necessary and relevant for the
purpose of investigation.
The process envisioned in Section 14 is being likened to the issuance of a subpoena. Petitioners objection is that
the issuance of subpoenas is a judicial function. But it is well-settled that the power to issue subpoenas is not
exclusively a judicial function. Executive agencies have the power to issue subpoena as an adjunct of their
investigatory powers.98
Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a function usually
lodged in the hands of law enforcers to enable them to carry out their executive functions. The prescribed procedure
for disclosure would not constitute an unlawful search or seizure nor would it violate the privacy of communications
and correspondence. Disclosure can be made only after judicial intervention.
Sec. 15. Search, Seizure and Examination of Computer Data. Where a search and seizure warrant is properly
issued, the law enforcement authorities shall likewise have the following powers and duties.
Sec. 17. Destruction of Computer Data. Upon expiration of the periods as provided in Sections 13 and 15, service
providers and law enforcement authorities, as the case may be, shall immediately and completely destroy the
computer data subject of a preservation and examination.
Section 17 would have the computer data, previous subject of preservation or examination, destroyed or deleted
upon the lapse of the prescribed period. The Solicitor General justifies this as necessary to clear up the service
providers storage systems and prevent overload. It would also ensure that investigations are quickly concluded.
Petitioners claim that such destruction of computer data subject of previous preservation or examination violates the
users right against deprivation of property without due process of law. But, as already stated, it is unclear that the
user has a demandable right to require the service provider to have that copy of the data saved indefinitely for him in
its storage system. If he wanted them preserved, he should have saved them in his computer when he generated the
data or received it. He could also request the service provider for a copy before it is deleted.
Section 19 empowers the Department of Justice to restrict or block access to computer data:
Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:
(a) To secure a computer system or a computer data storage medium;
(b) To make and retain a copy of those computer data secured;
(c) To maintain the integrity of the relevant stored computer data;
(d) To conduct forensic analysis or examination of the computer data storage medium; and
(e) To render inaccessible or remove those computer data in the accessed computer or computer and
communications network.
Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the functioning of
the computer system and the measures to protect and preserve the computer data therein to provide, as is
reasonable, the necessary information, to enable the undertaking of the search, seizure and examination.
Law enforcement authorities may request for an extension of time to complete the examination of the computer data
storage medium and to make a return thereon but in no case for a period longer than thirty (30) days from date of
approval by the court.
Petitioners challenge Section 15 on the assumption that it will supplant established search and seizure procedures.
On its face, however, Section 15 merely enumerates the duties of law enforcement authorities that would ensure the
proper collection, preservation, and use of computer system or data that have been seized by virtue of a court
warrant. The exercise of these duties do not pose any threat on the rights of the person from whom they were taken.
Section 15 does not appear to supersede existing search and seizure rules but merely supplements them.
Sec. 19. Restricting or Blocking Access to Computer Data. When a computer data is prima facie found to be in
violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to such computer data.
Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against unreasonable
searches and seizures. The Solicitor General concedes that this provision may be unconstitutional. But since laws
enjoy a presumption of constitutionality, the Court must satisfy itself that Section 19 indeed violates the freedom and
right mentioned.
Computer data99 may refer to entire programs or lines of code, including malware, as well as files that contain texts,
images, audio, or video recordings. Without having to go into a lengthy discussion of property rights in the digital
space, it is indisputable that computer data, produced or created by their writers or authors may constitute personal
property. Consequently, they are protected from unreasonable searches and seizures, whether while stored in their
personal computers or in the service providers systems.
Section 2, Article III of the 1987 Constitution provides that the right to be secure in ones papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable. Further, it states
that no search warrant shall issue except upon probable cause to be determined personally by the judge. Here, the
Government, in effect, seizes and places the computer data under its control and disposition without a warrant. The
Department of Justice order cannot substitute for judicial search warrant.
The content of the computer data can also constitute speech. In such a case, Section 19 operates as a restriction on
the freedom of expression over cyberspace. Certainly not all forms of speech are protected. Legislature may, within
constitutional bounds, declare certain kinds of expression as illegal. But for an executive officer to seize content
alleged to be unprotected without any judicial warrant, it is not enough for him to be of the opinion that such content
violates some law, for to do so would make him judge, jury, and executioner all rolled into one.100
Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential guidelines
established to determine the validity of restrictions on speech. Restraints on free speech are generally evaluated on
one of or a combination of three tests: the dangerous tendency doctrine, the balancing of interest test, and the clear
and present danger rule.101 Section 19, however, merely requires that the data to be blocked be found prima facie
in violation of any provision of the cybercrime law. Taking Section 6 into consideration, this can actually be made to
apply in relation to any penal provision. It does not take into consideration any of the three tests mentioned above.
The Court is therefore compelled to strike down Section 19 for being violative of the constitutional guarantees to
freedom of expression and against unreasonable searches and seizures.
Petitioners mainly contend that Congress invalidly delegated its power when it gave the Cybercrime Investigation
and Coordinating Center (CICC) the power to formulate a national cybersecurity plan without any sufficient standards
or parameters for it to follow.

Sec. 20. Noncompliance. Failure to comply with the provisions of Chapter IV hereof specifically the orders from
law enforcement authorities shall be punished as a violation of Presidential Decree No. 1829 with imprisonment of
prision correctional in its maximum period or a fine of One hundred thousand pesos (Php100,000.00) or both, for
each and every noncompliance with an order issued by law enforcement authorities.
Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere failure to comply
constitutes a legislative finding of guilt, without regard to situations where non-compliance would be reasonable or
valid.
But since the non-compliance would be punished as a violation of Presidential Decree (P.D.) 1829,102 Section 20
necessarily incorporates elements of the offense which are defined therein. If Congress had intended for Section 20
to constitute an offense in and of itself, it would not have had to make reference to any other statue or provision.
P.D. 1829 states:
Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to 6,000 pesos, or
both, shall be imposed upon any person who knowingly or willfully obstructs, impedes, frustrates or delays the
apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following
acts:
In order to determine whether there is undue delegation of legislative power, the Court has adopted two tests: the
completeness test and the sufficient standard test. Under the first test, the law must be complete in all its terms and
conditions when it leaves the legislature such that when it reaches the delegate, the only thing he will have to do is to
enforce it.1avvphi1 The second test mandates adequate guidelines or limitations in the law to determine the
boundaries of the delegates authority and prevent the delegation from running riot.103
Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement a national
cybersecurity plan. Also, contrary to the position of the petitioners, the law gave sufficient standards for the CICC to
follow when it provided a definition of cybersecurity.
Cybersecurity refers to the collection of tools, policies, risk management approaches, actions, training, best
practices, assurance and technologies that can be used to protect cyber environment and organization and users
assets.104 This definition serves as the parameters within which CICC should work in formulating the cybersecurity
plan.
Further, the formulation of the cybersecurity plan is consistent with the policy of the law to "prevent and combat such
[cyber] offenses by facilitating their detection, investigation, and prosecution at both the domestic and international
levels, and by providing arrangements for fast and reliable international cooperation."105 This policy is clearly
adopted in the interest of law and order, which has been considered as sufficient standard.106 Hence, Sections 24
and 26(a) are likewise valid.
WHEREFORE, the Court DECLARES:
1. VOID for being UNCONSTITUTIONAL:
x x x.
Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or willfully." There must still be
a judicial determination of guilt, during which, as the Solicitor General assumes, defense and justifications for noncompliance may be raised. Thus, Section 20 is valid insofar as it applies to the provisions of Chapter IV which are
not struck down by the Court.
Sections 24 and 26(a) of the Cybercrime Law
Sections 24 and 26(a) provide:
Sec. 24. Cybercrime Investigation and Coordinating Center. There is hereby created, within thirty (30) days from the
effectivity of this Act, an inter-agency body to be known as the Cybercrime Investigation and Coordinating Center
(CICC), under the administrative supervision of the Office of the President, for policy coordination among concerned
agencies and for the formulation and enforcement of the national cybersecurity plan.
Sec. 26. Powers and Functions. The CICC shall have the following powers and functions:
(a) To formulate a national cybersecurity plan and extend immediate assistance of real time commission of
cybercrime offenses through a computer emergency response team (CERT); x x x.
a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited commercial
communications;
b. Section 12 that authorizes the collection or recording of traffic data in real-time; and
c. Section 19 of the same Act that authorizes the Department of Justice to restrict or block
access to suspected Computer Data.
2. VALID and CONSTITUTIONAL:
a. Section 4(a)(1) that penalizes accessing a computer system without right;
b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;
c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the internet in
bad faith to the prejudice of others;
d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying information
belonging to another;
e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual organs or sexual
activity for favor or consideration;
1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act 10175 and
Article 353 of the Revised Penal Code constitutes a violation of the proscription against double jeopardy;
as well as
f. Section 4(c)(2) that penalizes the production of child pornography;

g. Section 6 that imposes penalties one degree higher when crimes defined under the Revised
Penal Code are committed with the use of information and communications technologies;
h. Section 8 that prescribes the penalties for cybercrimes;
i. Section 13 that permits law enforcement authorities to require service providers to preserve
traffic data and subscriber information as well as specified content data for six months;
j. Section 14 that authorizes the disclosure of computer data under a court-issued warrant;
k. Section 15 that authorizes the search, seizure, and examination of computer data under a
court-issued warrant;
l. Section 17 that authorizes the destruction of previously preserved computer data after the
expiration of the prescribed holding periods;
m. Section 20 that penalizes obstruction of justice in relation to cybercrime investigations;
n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center (CICC);
o. Section 26(a) that defines the CICCs Powers and Functions; and
p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.
Further, the Court DECLARES:
1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect to the original
author of the post; but VOID and UNCONSTITUTIONAL with respect to others who simply receive the post
and react to it; and
2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes as VA L I D
and CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal
Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on
Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-related Identity
Theft, and Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with respect to Sections 4(c)(2) on
Child Pornography, 4(c)(3) on Unsolicited Commercial Communications, and 4(c)(4) on online Libel.1wphi1
Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section 7 that authorizes
prosecution of the offender under both the Revised Penal Code and Republic Act 10175 to actual cases, WITH THE
EXCEPTION of the crimes of:
2. Child pornography committed online as to which, charging the offender under both Section 4(c)(2) of
Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of 2009 also constitutes a
violation of the same proscription, and, in respect to these, is VOID and UNCONSTITUTIONAL.
SO ORDERED.
G.R. No. 204819

April 8, 2014
JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and in behalf of their minor children,
LUCIA CARLOS IMBONG and BERNADETTE CARLOS IMBONG and MAGNIFICAT CHILD DEVELOPMENT
CENTER, INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of
Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, Culture and Sports and HON. MANUELA. ROXAS II,
Secretary, Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 204934
ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC. [ALFI], represented by its President, Maria
Concepcion S. Noche, Spouses Reynaldo S. Luistro & Rosie B . Luistro, Jose S. Sandejas & Elenita S.A.
Sandejas, Arturo M. Gorrez & Marietta C. Gorrez, Salvador S. Mante, Jr. & Hazeleen L. Mante, Rolando M.
Bautista & Maria Felisa S. Bautista, Desiderio Racho & Traquilina Racho, F emand Antonio A. Tansingco &
Carol Anne C. Tansingco for themselves and on behalf of their minor children, Therese Antonette C.
Tansingco, Lorenzo Jose C. Tansingco, Miguel F emando C. Tangsingco, Carlo Josemaria C. Tansingco &
Juan Paolo C. Tansingco, Spouses Mariano V. Araneta & Eileen Z. Araneta for themselves and on behalf of
their minor children, Ramon Carlos Z. Araneta & Maya Angelica Z. Araneta, Spouses Renato C. Castor &
Mildred C. Castor for themselves and on behalf of their minor children, Renz Jeffrey C. Castor, Joseph Ramil
C. Castor, John Paul C. Castor & Raphael C. Castor, Spouses Alexander R. Racho & Zara Z. Racho for
themselves and on behalf of their minor children Margarita Racho, Mikaela Racho, Martin Racho, Mari Racho
& Manolo Racho, Spouses Alfred R. Racho & Francine V. Racho for themselves and on behalf of their minor
children Michael Racho, Mariana Racho, Rafael Racho, Maxi Racho, Chessie Racho & Laura Racho, Spouses
David R. Racho & Armilyn A. Racho for themselves and on behalf of their minor child Gabriel Racho, Mindy
M. Juatas and on behalf of her minor children Elijah Gerald Juatas and Elian Gabriel Juatas, Salvacion M.
Monteiro, Emily R. Laws, Joseph R . Laws & Katrina R. Laws, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports, HON. CORAZON
SOLIMAN, Secretary, Department of Social Welfare and Development, HON. MANUELA. ROXAS II, Secretary,
Department of Interior and Local Government, HON. FLORENCIO B. ABAD, Secretary, Department of Budget
and Management, HON. ARSENIO M. BALISACAN, Socio-Economic Planning Secretary and NEDA DirectorGeneral, THE PHILIPPINE COMMISSION ON WOMEN, represented by its Chairperson, Remedios lgnacioRikken, THE PHILIPPINE HEALTH INSURANCE CORPORATION, represented by its President Eduardo
Banzon, THE LEAGUE OF PROVINCES OF THE PHILIPPINES, represented by its President Alfonso Umali,
THE LEAGUE OF CITIES OF THE PHILIPPINES, represented by its President Oscar Rodriguez, and THE
LEAGUE OF MUNICIPALITIES OF THE PHILIPPINES, represented by its President Donato
Marcos, Respondents.
x---------------------------------x
G.R. No. 204957
TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and VALERIANO S. AVILA, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary, Department of
Budget and Management; HON. ENRIQUE T. ONA, Secretary, Department of Education; and HON. MANUELA.
ROXAS II, Secretary, Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 204988
SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr. Nestor B. Lumicao, M.D., as President and in
his personal capacity, ROSEVALE FOUNDATION INC., represented by Dr. Rodrigo M. Alenton, M.D., as
member of the school board and in his personal capacity, ROSEMARIE R. ALENTON, IMELDA G. IBARRA,
CPA, LOVENIAP. NACES, Phd., ANTHONY G. NAGAC, EARL ANTHONY C. GAMBE and MARLON I.
YAP, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF REPRESENTATIVES, HON.
PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget
and Management; HON. ENRIQUE T. ONA, Secretary, Department of Health; HON. ARMIN A. LUISTRO,
Secretary, Department of Education and HON. MANUELA. ROXAS II, Secretary, Department of Interior and
Local Government, Respondents.
x---------------------------------x
G.R. No. 205003
EXPEDITO A. BUGARIN, JR., Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, HON. SENATE PRESIDENT, HON.
SPEAKER OF THE HOUSE OF REPRESENTATIVES and HON. SOLICITOR GENERAL, Respondents.
x---------------------------------x
G.R. No. 205043
EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE APOSTOLATE OF THE PHILIPPINES, Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE H. LAZO, DBM SECRETARY FLORENCIO B.
ABAD, DILG SECRETARY MANUELA. ROXAS II, DECS SECRETARY ARMIN A. LUISTRO, Respondents.
x---------------------------------x
G.R. No. 205138
PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein represented by its National President, Atty.
Ricardo M . Ribo, and in his own behalf, Atty. Lino E.A. Dumas, Romeo B. Almonte, Osmundo C. Orlanes,
Arsenio Z. Menor, Samuel J. Yap, Jaime F. Mateo, Rolly Siguan, Dante E. Magdangal, Michael Eugenio O.
Plana, Bienvenido C. Miguel, Jr., Landrito M. Diokno and Baldomero Falcone, Petitioners,
vs.
LUISTRO, Secretary, Department of Education, HON. MANUELA. ROXAS II, Secretary, Department of Interior
and Local Government, HON. CORAZON J. SOLIMAN, Secretary, Department of Social Welfare and
Development, HON. ARSENIO BALISACAN, Director-General, National Economic and Development
Authority, HON. SUZETTE H. LAZO, Director-General, Food and Drugs Administration, THE BOARD OF
DIRECTORS, Philippine Health Insurance Corporation, and THE BOARD OF COMMISSIONERS, Philippine
Commission on Women, Respondents.
x---------------------------------x
G.R. No. 205478
REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D., CYNTHIA T. DOMINGO, M.D., AND JOSEPHINE
MILLADO-LUMITAO, M.D., collectively known as Doctors For Life, and ANTHONY PEREZ, MICHAEL
ANTHONY G. MAPA, CARLOS ANTONIO PALAD, WILFREDO JOSE, CLAIRE NAVARRO, ANNA COSIO, and
GABRIEL DY LIACCO collectively known as Filipinos For Life, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary of the
Department of Budget and Management; HON. ENRIQUE T. ONA, Secretary of the Department of Health;
HON. ARMIN A. LUISTRO, Secretary of the Department of Education; and HON. MANUELA. ROXAS II,
Secretary of the Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 205491
SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD & ALA F. PAGUIA, for themselves, their
Posterity, and the rest of Filipino posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic of the Philippines, Respondent.
x---------------------------------x
G.R. No. 205720
PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by Loma Melegrito, as Executive Director, and in her
personal capacity, JOSELYN B. BASILIO, ROBERT Z. CORTES, ARIEL A. CRISOSTOMO, JEREMY I.
GATDULA, CRISTINA A. MONTES, RAUL ANTONIO A. NIDOY, WINSTON CONRAD B. PADOJINOG, RUFINO L.
POLICARPIO III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF REPRESENTATIVES, HON.
PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget
and Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO,
Secretary, Department of Education and HON. MANUEL A. ROXAS II, Secretary, Department of Interior and
Local Government, Respondents.
x---------------------------------x
G.R. No. 206355
MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON PEDROSA, ATTY. CITA BORROMEO-GARCIA,
STELLAACEDERA, ATTY. BERTENI CATALUNA CAUSING, Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE SECRETARY, DEPARTMENT OF HEALTH,
DEPARTMENT OF EDUCATION, Respondents.
x---------------------------------x
G.R. No. 207111
JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY VICTORIO B. LUMICAO, JOSEPH MARTIN Q.
VERDEJO, ANTONIA EMMA R. ROXAS and LOTA LAT-GUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO ABAD, Secretary, Department of
LUISTRO, Secretary, Department of Education, Culture and Sports and HON. MANUEL A. ROXAS II,
x---------------------------------x
G.R. No. 207172
COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN CARLOS ARTADI SARMIENTO AND
FRANCESCA ISABELLE BESINGA-SARMIENTO, AND SPOUSES LUIS FRANCIS A. RODRIGO, JR. and
DEBORAH MARIE VERONICA N. RODRIGO, Petitioners,
vs.
LUISTRO, Secretary, Department of Education, Culture and Sports and HON. MANUELA. ROXAS II,
x---------------------------------x
G.R. No. 207563
ALMARIM CENTI TILLAH and ABDULHUSSEIN M. KASHIM, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary of the Department of
Health, and HON. ARMIN A. LUISTRO,Secretary of the Department of Budget and Management,Respondents.
Freedom of religion was accorded preferred status by the framers of our fundamental law. And this Court has
consistently affirmed this preferred status, well aware that it is "designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to profess his beliefs , and to live as he believes
he ought to live, consistent with the liberty of others and with the common good."1
DECISION
(6) Petition for Certiorari and Prohibition,15 filed by Eduardo Olaguer and the Catholic Xybrspace
Apostolate of the Philippines,16 in their capacities as a citizens and taxpayers (Olaguer);
MENDOZA, J.:
To this day, poverty is still a major stumbling block to the nation's emergence as a developed country, leaving our
people beleaguered in a state of hunger, illiteracy and unemployment. While governmental policies have been
geared towards the revitalization of the economy, the bludgeoning dearth in social services remains to be a problem
that concerns not only the poor, but every member of society. The government continues to tread on a trying path to
the realization of its very purpose, that is, the general welfare of the Filipino people and the development of the
country as a whole. The legislative branch, as the main facet of a representative government, endeavors to enact
laws and policies that aim to remedy looming societal woes, while the executive is closed set to fully implement
these measures and bring concrete and substantial solutions within the reach of Juan dela Cruz. Seemingly distant
is the judicial branch, oftentimes regarded as an inert governmental body that merely casts its watchful eyes on
clashing stakeholders until it is called upon to adjudicate. Passive, yet reflexive when called into action, the Judiciary
then willingly embarks on its solemn duty to interpret legislation vis-a-vis the most vital and enduring principle that
holds Philippine society together - the supremacy of the Philippine Constitution.
Nothing has polarized the nation more in recent years than the issues of population growth control, abortion and
contraception. As in every democratic society, diametrically opposed views on the subjects and their perceived
consequences freely circulate in various media. From television debates2 to sticker campaigns,3 from rallies by
socio-political activists to mass gatherings organized by members of the clergy4 - the clash between the seemingly
antithetical ideologies of the religious conservatives and progressive liberals has caused a deep division in every
level of the society. Despite calls to withhold support thereto, however, Republic Act (R.A.) No. 10354, otherwise
known as the Responsible Parenthood and Reproductive Health Act of 2012 (RH Law), was enacted by Congress on
December 21, 2012.
Shortly after the President placed his imprimatur on the said law, challengers from various sectors of society came
knocking on the doors of the Court, beckoning it to wield the sword that strikes down constitutional disobedience.
Aware of the profound and lasting impact that its decision may produce, the Court now faces the iuris controversy, as
presented in fourteen (14) petitions and two (2) petitions- in-intervention, to wit:
(1) Petition for Certiorari and Prohibition,5 filed by spouses Attys. James M. Imbong and Lovely Ann C.
Imbong, in their personal capacities as citizens, lawyers and taxpayers and on behalf of their minor
children; and the Magnificat Child Leaming Center, Inc., a domestic, privately-owned educational institution
(Jmbong);
(2) Petition for Prohibition,6 filed by the Alliance for the Family Foundation Philippines, Inc., through its
president, Atty. Maria Concepcion S. Noche7 and several others8 in their personal capacities as citizens
and on behalf of the generations unborn (ALFI);
(3) Petition for Certiorari,9 filed by the Task Force for Family and Life Visayas, Inc., and Valeriano S. Avila,
in their capacities as citizens and taxpayers (Task Force Family);
(4) Petition for Certiorari and Prohibition,10 filed by Serve Life Cagayan De Oro City, Inc.,11 Rosevale
Foundation, Inc.,12 a domestic, privately-owned educational institution, and several others,13 in their
capacities as citizens (Serve Life);
(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his capacity as a citizen (Bugarin);
(7) Petition for Certiorari and Prohibition,17 filed by the Philippine Alliance of Xseminarians Inc.,18 and
several others19 in their capacities as citizens and taxpayers (PAX);
(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and several others,21 in their capacities as citizens and
taxpayers (Echavez);
(9) Petition for Certiorari and Prohibition,22 filed by spouses Francisco and Maria Fenny C. Tatad and Atty.
Alan F. Paguia, in their capacities as citizens, taxpayers and on behalf of those yet unborn. Atty. Alan F.
Paguia is also proceeding in his capacity as a member of the Bar (Tatad);
(10) Petition for Certiorari and Prohibition,23 filed by Pro-Life Philippines Foundation Inc.24 and several
others,25 in their capacities as citizens and taxpayers and on behalf of its associates who are members of
the Bar (Pro-Life);
(11) Petition for Prohibition,26 filed by Millennium Saint Foundation, Inc.,27 Attys. Ramon Pedrosa, Cita
Borromeo-Garcia, Stella Acedera, and Berteni Catalufia Causing, in their capacities as citizens, taxpayers
and members of the Bar (MSF);
(12) Petition for Certiorari and Prohibition,28 filed by John Walter B. Juat and several others,29 in their
capacities as citizens (Juat) ;
(13) Petition for Certiorari and Prohibition,30 filed by Couples for Christ Foundation, Inc. and several
others,31 in their capacities as citizens (CFC);
(14) Petition for Prohibition32 filed by Almarim Centi Tillah and Abdulhussein M. Kashim in their capacities
as citizens and taxpayers (Tillah); and
(15) Petition-In-Intervention,33 filed by Atty. Samson S. Alcantara in his capacity as a citizen and a
taxpayer (Alcantara); and
(16) Petition-In-Intervention,34 filed by Buhay Hayaang Yumabong (B UHAY) , an accredited political party.
A perusal of the foregoing petitions shows that the petitioners are assailing the constitutionality of RH Law on the
following GROUNDS:
The RH Law violates the right to life of the unborn. According to the petitioners, notwithstanding its
declared policy against abortion, the implementation of the RH Law would authorize the purchase of
hormonal contraceptives, intra-uterine devices and injectables which are abortives, in violation of Section
12, Article II of the Constitution which guarantees protection of both the life of the mother and the life of the
unborn from conception.35
The RH Law violates the right to health and the right to protection against hazardous products. The
petitioners posit that the RH Law provides universal access to contraceptives which are hazardous to
one's health, as it causes cancer and other health problems.36
The RH Law violates the right to religious freedom. The petitioners contend that the RH Law violates the
constitutional guarantee respecting religion as it authorizes the use of public funds for the procurement of
contraceptives. For the petitioners, the use of public funds for purposes that are believed to be contrary to
their beliefs is included in the constitutional mandate ensuring religious freedom.37
It is also contended that the RH Law threatens conscientious objectors of criminal prosecution, imprisonment and
other forms of punishment, as it compels medical practitioners 1] to refer patients who seek advice on reproductive
health programs to other doctors; and 2] to provide full and correct information on reproductive health programs and
service, although it is against their religious beliefs and convictions.38
In this connection, Section 5 .23 of the Implementing Rules and Regulations of the RH Law (RH-IRR),39 provides
that skilled health professionals who are public officers such as, but not limited to, Provincial, City, or Municipal
Health Officers, medical officers, medical specialists, rural health physicians, hospital staff nurses, public health
nurses, or rural health midwives, who are specifically charged with the duty to implement these Rules, cannot be
considered as conscientious objectors.40
It is also argued that the RH Law providing for the formulation of mandatory sex education in schools should not be
allowed as it is an affront to their religious beliefs.41
While the petit10ners recognize that the guarantee of religious freedom is not absolute, they argue that the RH Law
fails to satisfy the "clear and present danger test" and the "compelling state interest test" to justify the regulation of
the right to free exercise of religion and the right to free speech.42
The RH Law violates the constitutional provision on involuntary servitude. According to the petitioners,
the RH Law subjects medical practitioners to involuntary servitude because, to be accredited under the
PhilHealth program, they are compelled to provide forty-eight (48) hours of pro bona services for indigent
women, under threat of criminal prosecution, imprisonment and other forms of punishment.43
The petitioners explain that since a majority of patients are covered by PhilHealth, a medical practitioner would
effectively be forced to render reproductive health services since the lack of PhilHealth accreditation would mean that
the majority of the public would no longer be able to avail of the practitioners services.44
The RH Law violates the right to equal protection of the law. It is claimed that the RH Law discriminates
against the poor as it makes them the primary target of the government program that promotes
contraceptive use. The petitioners argue that, rather than promoting reproductive health among the poor,
the RH Law seeks to introduce contraceptives that would effectively reduce the number of the poor.45
The RH Law is "void-for-vagueness" in violation of the due process clause of the Constitution. In
imposing the penalty of imprisonment and/or fine for "any violation," it is vague because it does not define
the type of conduct to be treated as "violation" of the RH Law.46
In this connection, it is claimed that "Section 7 of the RH Law violates the right to due process by removing from
them (the people) the right to manage their own affairs and to decide what kind of health facility they shall be and
what kind of services they shall offer."47 It ignores the management prerogative inherent in corporations for
employers to conduct their affairs in accordance with their own discretion and judgment.
The RH Law violates the right to free speech. To compel a person to explain a full range of family
planning methods is plainly to curtail his right to expound only his own preferred way of family planning.
The petitioners note that although exemption is granted to institutions owned and operated by religious
groups, they are still forced to refer their patients to another healthcare facility willing to perform the service
or procedure.48
The RH Law intrudes into the zone of privacy of one's family protected by the Constitution. It is
contended that the RH Law providing for mandatory reproductive health education intrudes upon their
constitutional right to raise their children in accordance with their beliefs.49
It is claimed that, by giving absolute authority to the person who will undergo reproductive health procedure, the RH
Law forsakes any real dialogue between the spouses and impedes the right of spouses to mutually decide on
matters pertaining to the overall well-being of their family. In the same breath, it is also claimed that the parents of a
child who has suffered a miscarriage are deprived of parental authority to determine whether their child should use
contraceptives.50
The RH Law violates the constitutional principle of non-delegation of legislative authority. The petitioners
question the delegation by Congress to the FDA of the power to determine whether a product is nonabortifacient and to be included in the Emergency Drugs List (EDL).51
The RH Law violates the one subject/one bill rule provision under Section 26( 1 ), Article VI of the
Constitution.52
The RH Law violates Natural Law.53
The RH Law violates the principle of Autonomy of Local Government Units (LGUs) and the Autonomous
Region of Muslim Mindanao {ARMM). It is contended that the RH Law, providing for reproductive health
measures at the local government level and the ARMM, infringes upon the powers devolved to LGUs and
the ARMM under the Local Government Code and R.A . No. 9054.54
Various parties also sought and were granted leave to file their respective comments-in-intervention in defense of the
constitutionality of the RH Law. Aside from the Office of the Solicitor General (OSG) which commented on the
petitions in behalf of the respondents,55 Congressman Edcel C. Lagman,56 former officials of the Department of
Health Dr. Esperanza I. Cabral, Jamie Galvez-Tan, and Dr. Alberto G. Romualdez,57 the Filipino Catholic Voices for
Reproductive Health (C4RH),58 Ana Theresa "Risa" Hontiveros,59 and Atty. Joan De Venecia60 also filed their
respective Comments-in-Intervention in conjunction with several others. On June 4, 2013, Senator Pia Juliana S.
Cayetano was also granted leave to intervene.61
The respondents, aside from traversing the substantive arguments of the petitioners, pray for the dismissal of the
petitions for the principal reasons that 1] there is no actual case or controversy and, therefore, the issues are not yet
ripe for judicial determination.; 2] some petitioners lack standing to question the RH Law; and 3] the petitions are
essentially petitions for declaratory relief over which the Court has no original jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the assailed legislation took effect.
On March 19, 2013, after considering the issues and arguments raised, the Court issued the Status Quo Ante Order
(SQAO), enjoining the effects and implementation of the assailed legislation for a period of one hundred and twenty
(120) days, or until July 17, 2013.62
On May 30, 2013, the Court held a preliminary conference with the counsels of the parties to determine and/or
identify the pertinent issues raised by the parties and the sequence by which these issues were to be discussed in
the oral arguments. On July 9 and 23, 2013, and on August 6, 13, and 27, 2013, the cases were heard on oral
argument. On July 16, 2013, the SQAO was ordered extended until further orders of the Court.63
Thereafter, the Court directed the parties to submit their respective memoranda within sixty (60) days and, at the
same time posed several questions for their clarification on some contentions of the parties.64
The Status Quo Ante
(Population, Contraceptive and Reproductive Health Laws
Prior to the RH Law

Long before the incipience of the RH Law, the country has allowed the sale, dispensation and distribution of
contraceptive drugs and devices. As far back as June 18, 1966, the country enacted R.A. No. 4729 entitled "An Act
to Regu,late the Sale, Dispensation, and/or Distribution of Contraceptive Drugs and Devices." Although contraceptive
drugs and devices were allowed, they could not be sold, dispensed or distributed "unless such sale, dispensation
and distribution is by a duly licensed drug store or pharmaceutical company and with the prescription of a qualified
medical practitioner."65
In addition, R.A. No. 5921,66 approved on June 21, 1969, contained provisions relative to "dispensing of
abortifacients or anti-conceptional substances and devices." Under Section 37 thereof, it was provided that "no drug
or chemical product or device capable of provoking abortion or preventing conception as classified by the Food and
Drug Administration shall be delivered or sold to any person without a proper prescription by a duly licensed
physician."
On December 11, 1967, the Philippines, adhering to the UN Declaration on Population, which recognized that the
population problem should be considered as the principal element for long-term economic development, enacted
measures that promoted male vasectomy and tubal ligation to mitigate population growth.67 Among these measures
included R.A. No. 6365, approved on August 16, 1971, entitled "An Act Establishing a National Policy on Population,
Creating the Commission on Population and for Other Purposes. " The law envisioned that "family planning will be
made part of a broad educational program; safe and effective means will be provided to couples desiring to space or
limit family size; mortality and morbidity rates will be further reduced."
To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos issued Presidential Decree. (P.D.) No.
79,68 dated December 8, 1972, which, among others, made "family planning a part of a broad educational program,"
provided "family planning services as a part of over-all health care," and made "available all acceptable methods of
contraception, except abortion, to all Filipino citizens desirous of spacing, limiting or preventing pregnancies."
Through the years, however, the use of contraceptives and family planning methods evolved from being a
component of demographic management, to one centered on the promotion of public health, particularly,
reproductive health.69 Under that policy, the country gave priority to one's right to freely choose the method of family
planning to be adopted, in conformity with its adherence to the commitments made in the International Conference
on Population and Development.70 Thus, on August 14, 2009, the country enacted R.A. No. 9710 or "The Magna
Carta for Women, " which, among others, mandated the State to provide for comprehensive health services and
programs for women, including family planning and sex education.71
The RH Law
Despite the foregoing legislative measures, the population of the country kept on galloping at an uncontrollable pace.
From a paltry number of just over 27 million Filipinos in 1960, the population of the country reached over 76 million in
the year 2000 and over 92 million in 2010.72 The executive and the legislative, thus, felt that the measures were still
not adequate. To rein in the problem, the RH Law was enacted to provide Filipinos, especially the poor and the
marginalized, access and information to the full range of modem family planning methods, and to ensure that its
objective to provide for the peoples' right to reproductive health be achieved. To make it more effective, the RH Law
made it mandatory for health providers to provide information on the full range of modem family planning methods,
supplies and services, and for schools to provide reproductive health education. To put teeth to it, the RH Law
criminalizes certain acts of refusals to carry out its mandates.
Stated differently, the RH Law is an enhancement measure to fortify and make effective the current laws on
contraception, women's health and population control.
Prayer of the Petitioners - Maintain the Status Quo
The petitioners are one in praying that the entire RH Law be declared unconstitutional. Petitioner ALFI, in particular,
argues that the government sponsored contraception program, the very essence of the RH Law, violates the right to
health of women and the sanctity of life, which the State is mandated to protect and promote. Thus, ALFI prays that
"the status quo ante - the situation prior to the passage of the RH Law - must be maintained."73 It explains:
x x x. The instant Petition does not question contraception and contraceptives per se. As provided under Republic
Act No. 5921 and Republic Act No. 4729, the sale and distribution of contraceptives are prohibited unless dispensed
by a prescription duly licensed by a physician. What the Petitioners find deplorable and repugnant under the RH Law
is the role that the State and its agencies - the entire bureaucracy, from the cabinet secretaries down to the barangay
officials in the remotest areas of the country - is made to play in the implementation of the contraception program to
the fullest extent possible using taxpayers' money. The State then will be the funder and provider of all forms of
family planning methods and the implementer of the program by ensuring the widespread dissemination of, and
universal access to, a full range of family planning methods, devices and supplies.74
8] Involuntary Servitude
9] Delegation of Authority to the FDA
10] Autonomy of Local Govemments/ARMM
DISCUSSION
Before delving into the constitutionality of the RH Law and its implementing rules, it behooves the Court to resolve
some procedural impediments.
I. PROCEDURAL ISSUE: Whether the Court can exercise its power of judicial review over the controversy.
ISSUES
The Power of Judicial Review
After a scrutiny of the various arguments and contentions of the parties, the Court has synthesized and refined them
to the following principal issues:
I. PROCEDURAL: Whether the Court may exercise its power of judicial review over the controversy.
1] Power of Judicial Review
2] Actual Case or Controversy
3] Facial Challenge
4] Locus Standi
5] Declaratory Relief
6] One Subject/One Title Rule
II. SUBSTANTIVE: Whether the RH law is unconstitutional:
1] Right to Life
2] Right to Health
In its attempt to persuade the Court to stay its judicial hand, the OSG asserts that it should submit to the legislative
and political wisdom of Congress and respect the compromises made in the crafting of the RH Law, it being "a
product of a majoritarian democratic process"75 and "characterized by an inordinate amount of transparency."76 The
OSG posits that the authority of the Court to review social legislation like the RH Law by certiorari is "weak," since
the Constitution vests the discretion to implement the constitutional policies and positive norms with the political
departments, in particular, with Congress.77 It further asserts that in view of the Court's ruling in Southern
Hemisphere v. Anti-Terrorism Council,78 the remedies of certiorari and prohibition utilized by the petitioners are
improper to assail the validity of the acts of the legislature.79
Moreover, the OSG submits that as an "as applied challenge," it cannot prosper considering that the assailed law
has yet to be enforced and applied to the petitioners, and that the government has yet to distribute reproductive
health devices that are abortive. It claims that the RH Law cannot be challenged "on its face" as it is not a speechregulating measure.80
In many cases involving the determination of the constitutionality of the actions of the Executive and the Legislature,
it is often sought that the Court temper its exercise of judicial power and accord due respect to the wisdom of its coequal branch on the basis of the principle of separation of powers. To be clear, the separation of powers is a
fundamental principle in our system of government, which obtains not through express provision but by actual
division in our Constitution. Each department of the government has exclusive cognizance of matters within its
jurisdiction and is supreme within its own sphere.81
Thus, the 1987 Constitution provides that: (a) the legislative power shall be vested in the Congress of the
Philippines;82 (b) the executive power shall be vested in the President of the Philippines;83 and (c) the judicial
power shall be vested in one Supreme Court and in such lower courts as may be established by law.84 The
Constitution has truly blocked out with deft strokes and in bold lines, the allotment of powers among the three
branches of government.85
3] Freedom of Religion and the Right to Free Speech

4] The Family
5] Freedom of Expression and Academic Freedom
6] Due Process
7] Equal Protection
In its relationship with its co-equals, the Judiciary recognizes the doctrine of separation of powers which imposes
upon the courts proper restraint, born of the nature of their functions and of their respect for the other branches of
government, in striking down the acts of the Executive or the Legislature as unconstitutional. Verily, the policy is a
harmonious blend of courtesy and caution.86
It has also long been observed, however, that in times of social disquietude or political instability, the great landmarks
of the Constitution are apt to be forgotten or marred, if not entirely obliterated.87 In order to address this, the
Constitution impresses upon the Court to respect the acts performed by a co-equal branch done within its sphere of
competence and authority, but at the same time, allows it to cross the line of separation - but only at a very limited
and specific point - to determine whether the acts of the executive and the legislative branches are null because they
were undertaken with grave abuse of discretion.88 Thus, while the Court may not pass upon questions of wisdom,
justice or expediency of the RH Law, it may do so where an attendant unconstitutionality or grave abuse of discretion
results.89 The Court must demonstrate its unflinching commitment to protect those cherished rights and principles
embodied in the Constitution.
In this connection, it bears adding that while the scope of judicial power of review may be limited, the Constitution
makes no distinction as to the kind of legislation that may be subject to judicial scrutiny, be it in the form of social
legislation or otherwise. The reason is simple and goes back to the earlier point. The Court may pass upon the
constitutionality of acts of the legislative and the executive branches, since its duty is not to review their collective
wisdom but, rather, to make sure that they have acted in consonance with their respective authorities and rights as
mandated of them by the Constitution. If after said review, the Court finds no constitutional violations of any sort,
then, it has no more authority of proscribing the actions under review.90 This is in line with Article VIII, Section 1 of
the Constitution which expressly provides:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established
by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
[Emphases supplied]
As far back as Tanada v. Angara,91 the Court has unequivocally declared that certiorari, prohibition and mandamus
are appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify, when proper, acts of
legislative and executive officials, as there is no other plain, speedy or adequate remedy in the ordinary course of
law. This ruling was later on applied in Macalintal v. COMELEC,92 Aldaba v. COMELEC,93 Magallona v.
Ermita,94and countless others. In Tanada, the Court wrote:
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no
doubt raises a justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed
the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. "The question
thus posed is judicial rather than political. The duty (to adjudicate) remains to assure that the supremacy of the
Constitution is upheld. " Once a "controversy as to the application or interpretation of constitutional provision is raised
before this Court (as in the instant case), it becomes a legal issue which the Court is bound by constitutional
mandate to decide. [Emphasis supplied]
In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "judicial review is essential for the
maintenance and enforcement of the separation of powers and the balancing of powers among the three great
departments of government through the definition and maintenance of the boundaries of authority and control
between them. To him, judicial review is the chief, indeed the only, medium of participation - or instrument of
intervention - of the judiciary in that balancing operation.95
Lest it be misunderstood, it bears emphasizing that the Court does not have the unbridled authority to rule on just
any and every claim of constitutional violation. Jurisprudence is replete with the rule that the power of judicial review
is limited by four exacting requisites, viz : (a) there must be an actual case or controversy; (b) the petitioners must
possess locus standi; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the issue
of constitutionality must be the lis mota of the case.96
Actual Case or Controversy
Proponents of the RH Law submit that the subj ect petitions do not present any actual case or controversy because
the RH Law has yet to be implemented.97 They claim that the questions raised by the petitions are not yet concrete
and ripe for adjudication since no one has been charged with violating any of its provisions and that there is no
showing that any of the petitioners' rights has been adversely affected by its operation.98 In short, it is contended
that judicial review of the RH Law is premature.
An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not
conjectural or anticipatory, lest the decision of the court would amount to an advisory opinion.99 The rule is that
courts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually
challenging. The controversy must be justiciable-definite and concrete, touching on the legal relations of parties
having adverse legal interests. In other words, the pleadings must show an active antagonistic assertion of a legal
right, on the one hand, and a denial thereof, on the other; that is, it must concern a real, tangible and not merely a
theoretical question or issue. There ought to be an actual and substantial controversy admitting of specific relief
through a decree conclusive in nature, as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts.100
Corollary to the requirement of an actual case or controversy is the requirement of ripeness.101 A question is ripe for
adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. For a
case to be considered ripe for adjudication, it is a prerequisite that something has then been accomplished or
performed by either branch before a court may come into the picture, and the petitioner must allege the existence of
an immediate or threatened injury to himself as a result of the challenged action. He must show that he has
sustained or is immediately in danger of sustaining some direct injury as a result of the act complained of102
In The Province of North Cotabato v. The Government of the Republic of the Philippines,103 where the
constitutionality of an unimplemented Memorandum of Agreement on the Ancestral Domain (MOA-AD) was put in
question, it was argued that the Court has no authority to pass upon the issues raised as there was yet no concrete
act performed that could possibly violate the petitioners' and the intervenors' rights. Citing precedents, the Court
ruled that the fact of the law or act in question being not yet effective does not negate ripeness. Concrete acts under
a law are not necessary to render the controversy ripe. Even a singular violation of the Constitution and/or the law is
enough to awaken judicial duty.
In this case, the Court is of the view that an actual case or controversy exists and that the same is ripe for judicial
determination. Considering that the RH Law and its implementing rules have already taken effect and that budgetary
measures to carry out the law have already been passed, it is evident that the subject petitions present a justiciable
controversy. As stated earlier, when an action of the legislative branch is seriously alleged to have infringed the
Constitution, it not only becomes a right, but also a duty of the Judiciary to settle the dispute.104
Moreover, the petitioners have shown that the case is so because medical practitioners or medical providers are in
danger of being criminally prosecuted under the RH Law for vague violations thereof, particularly public health
officers who are threatened to be dismissed from the service with forfeiture of retirement and other benefits. They
must, at least, be heard on the matter NOW.
Facial Challenge
The OSG also assails the propriety of the facial challenge lodged by the subject petitions, contending that the RH
Law cannot be challenged "on its face" as it is not a speech regulating measure.105
The Court is not persuaded.
In United States (US) constitutional law, a facial challenge, also known as a First Amendment Challenge, is one that
is launched to assail the validity of statutes concerning not only protected speech, but also all other rights in the First
Amendment.106 These include religious freedom, freedom of the press, and the right of the people to peaceably
assemble, and to petition the Government for a redress of grievances.107 After all, the fundamental right to religious
freedom, freedom of the press and peaceful assembly are but component rights of the right to one's freedom of
expression, as they are modes which one's thoughts are externalized.
In this jurisdiction, the application of doctrines originating from the U.S. has been generally maintained, albeit with
some modifications. While this Court has withheld the application of facial challenges to strictly penal statues,108 it
has expanded its scope to cover statutes not only regulating free speech, but also those involving religious freedom,
and other fundamental rights.109 The underlying reason for this modification is simple. For unlike its counterpart in
the U.S., this Court, under its expanded jurisdiction, is mandated by the Fundamental Law not only to settle actual
controversies involving rights which are legally demandable and enforceable, but also to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.110 Verily, the framers of Our Constitution envisioned a proactive Judiciary, ever
vigilant with its duty to maintain the supremacy of the Constitution.
Consequently, considering that the foregoing petitions have seriously alleged that the constitutional human rights to
life, speech and religion and other fundamental rights mentioned above have been violated by the assailed
legislation, the Court has authority to take cognizance of these kindred petitions and to determine if the RH Law can
indeed pass constitutional scrutiny. To dismiss these petitions on the simple expedient that there exist no actual case
or controversy, would diminish this Court as a reactive branch of government, acting only when the Fundamental
Law has been transgressed, to the detriment of the Filipino people.
Locus Standi
The OSG also attacks the legal personality of the petitioners to file their respective petitions. It contends that the "as
applied challenge" lodged by the petitioners cannot prosper as the assailed law has yet to be enforced and applied
against them,111 and the government has yet to distribute reproductive health devices that are abortive.112
The petitioners, for their part, invariably invoke the "transcendental importance" doctrine and their status as citizens
and taxpayers in establishing the requisite locus standi.
Locus standi or legal standing is defined as a personal and substantial interest in a case such that the party has
sustained or will sustain direct injury as a result of the challenged governmental act.113 It requires a personal stake
in the outcome of the controversy as to assure the concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of difficult constitutional questions.114
In relation to locus standi, the "as applied challenge" embodies the rule that one can challenge the constitutionality of
a statute only if he asserts a violation of his own rights. The rule prohibits one from challenging the constitutionality of
the statute grounded on a violation of the rights of third persons not before the court. This rule is also known as the
prohibition against third-party standing.115
technicality which the Court has, on more than one occasion, waived or relaxed, thus allowing non-traditional
plaintiffs, such as concerned citizens, taxpayers, voters or legislators, to sue in the public interest, albeit they may not
have been directly injured by the operation of a law or any other government act. As held in Jaworski v.
PAGCOR:119
Granting arguendo that the present action cannot be properly treated as a petition for prohibition, the transcendental
importance of the issues involved in this case warrants that we set aside the technical defects and take primary
jurisdiction over the petition at bar. One cannot deny that the issues raised herein have potentially pervasive
influence on the social and moral well being of this nation, specially the youth; hence, their proper and just
determination is an imperative need. This is in accordance with the well-entrenched principle that rules of procedure
are not inflexible tools designed to hinder or delay, but to facilitate and promote the administration of justice. Their
strict and rigid application, which would result in technicalities that tend to frustrate, rather than promote substantial
justice, must always be eschewed. (Emphasis supplied)
In view of the seriousness, novelty and weight as precedents, not only to the public, but also to the bench and bar,
the issues raised must be resolved for the guidance of all. After all, the RH Law drastically affects the constitutional
provisions on the right to life and health, the freedom of religion and expression and other constitutional rights.
Mindful of all these and the fact that the issues of contraception and reproductive health have already caused deep
division among a broad spectrum of society, the Court entertains no doubt that the petitions raise issues of
transcendental importance warranting immediate court adjudication. More importantly, considering that it is the right
to life of the mother and the unborn which is primarily at issue, the Court need not wait for a life to be taken away
before taking action.
The Court cannot, and should not, exercise judicial restraint at this time when rights enshrined in the Constitution are
being imperilled to be violated. To do so, when the life of either the mother or her child is at stake, would lead to
irreparable consequences.
Declaratory Relief
The respondents also assail the petitions because they are essentially petitions for declaratory relief over which the
Court has no original jurisdiction.120 Suffice it to state that most of the petitions are praying for injunctive reliefs and
so the Court would just consider them as petitions for prohibition under Rule 65, over which it has original
jurisdiction. Where the case has far-reaching implications and prays for injunctive reliefs, the Court may consider
them as petitions for prohibition under Rule 65.121
One Subject-One Title
Transcendental Importance
Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of procedure, hence, can be
relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers, and legislators when the public interest so
requires, such as when the matter is of transcendental importance, of overreaching significance to society, or of
paramount public interest."116
In Coconut Oil Refiners Association, Inc. v. Torres,117 the Court held that in cases of paramount importance where
serious constitutional questions are involved, the standing requirement may be relaxed and a suit may be allowed to
prosper even where there is no direct injury to the party claiming the right of judicial review. In the first Emergency
Powers Cases,118 ordinary citizens and taxpayers were allowed to question the constitutionality of several executive
orders although they had only an indirect and general interest shared in common with the public.
With these said, even if the constitutionality of the RH Law may not be assailed through an "as-applied challenge,
still, the Court has time and again acted liberally on the locus s tandi requirement. It has accorded certain individuals
standing to sue, not otherwise directly injured or with material interest affected by a Government act, provided a
constitutional issue of transcendental importance is invoked. The rule on locus standi is, after all, a procedural
The petitioners also question the constitutionality of the RH Law, claiming that it violates Section 26(1 ), Article VI of
the Constitution,122 prescribing the one subject-one title rule. According to them, being one for reproductive health
with responsible parenthood, the assailed legislation violates the constitutional standards of due process by
concealing its true intent - to act as a population control measure.123
To belittle the challenge, the respondents insist that the RH Law is not a birth or population control measure,124and
that the concepts of "responsible parenthood" and "reproductive health" are both interrelated as they are
inseparable.125
Despite efforts to push the RH Law as a reproductive health law, the Court sees it as principally a population control
measure. The corpus of the RH Law is geared towards the reduction of the country's population. While it claims to
save lives and keep our women and children healthy, it also promotes pregnancy-preventing products. As stated
earlier, the RH Law emphasizes the need to provide Filipinos, especially the poor and the marginalized, with access
to information on the full range of modem family planning products and methods. These family planning methods,
natural or modem, however, are clearly geared towards the prevention of pregnancy.
For said reason, the manifest underlying objective of the RH Law is to reduce the number of births in the country.
It cannot be denied that the measure also seeks to provide pre-natal and post-natal care as well. A large portion of
the law, however, covers the dissemination of information and provisions on access to medically-safe, nonabortifacient, effective, legal, affordable, and quality reproductive health care services, methods, devices, and
supplies, which are all intended to prevent pregnancy.
The Court, thus, agrees with the petitioners' contention that the whole idea of contraception pervades the entire RH
Law. It is, in fact, the central idea of the RH Law.126 Indeed, remove the provisions that refer to contraception or are
related to it and the RH Law loses its very foundation.127 As earlier explained, "the other positive provisions such as
skilled birth attendance, maternal care including pre-and post-natal services, prevention and management of
reproductive tract infections including HIV/AIDS are already provided for in the Magna Carta for Women."128
Be that as it may, the RH Law does not violate the one subject/one bill rule. In Benjamin E. Cawaling, Jr. v. The
Commission on Elections and Rep. Francis Joseph G Escudero, it was written:
It is well-settled that the "one title-one subject" rule does not require the Congress to employ in the title of the
enactment language of such precision as to mirror, fully index or catalogue all the contents and the minute details
therein. The rule is sufficiently complied with if the title is comprehensive enough as to include the general object
which the statute seeks to effect, and where, as here, the persons interested are informed of the nature, scope and
consequences of the proposed law and its operation. Moreover, this Court has invariably adopted a liberal rather
than technical construction of the rule "so as not to cripple or impede legislation." [Emphases supplied]
In this case, a textual analysis of the various provisions of the law shows that both "reproductive health" and
"responsible parenthood" are interrelated and germane to the overriding objective to control the population growth.
As expressed in the first paragraph of Section 2 of the RH Law:
SEC. 2. Declaration of Policy. - The State recognizes and guarantees the human rights of all persons including their
right to equality and nondiscrimination of these rights, the right to sustainable human development, the right to health
which includes reproductive health, the right to education and information, and the right to choose and make
decisions for themselves in accordance with their religious convictions, ethics, cultural beliefs, and the demands of
responsible parenthood.
The one subject/one title rule expresses the principle that the title of a law must not be "so uncertain that the average
person reading it would not be informed of the purpose of the enactment or put on inquiry as to its contents, or which
is misleading, either in referring to or indicating one subject where another or different one is really embraced in the
act, or in omitting any expression or indication of the real subject or scope of the act."129
According to the petitioners, despite its express terms prohibiting abortion, Section 4(a) of the RH Law considers
contraceptives that prevent the fertilized ovum to reach and be implanted in the mother's womb as an abortifacient;
thus, sanctioning contraceptives that take effect after fertilization and prior to implantation, contrary to the intent of
the Framers of the Constitution to afford protection to the fertilized ovum which already has life.
They argue that even if Section 9 of the RH Law allows only "non-abortifacient" hormonal contraceptives, intrauterine
devices, injectables and other safe, legal, non-abortifacient and effective family planning products and supplies,
medical research shows that contraceptives use results in abortion as they operate to kill the fertilized ovum which
already has life.131
As it opposes the initiation of life, which is a fundamental human good, the petitioners assert that the State sanction
of contraceptive use contravenes natural law and is an affront to the dignity of man.132
Finally, it is contended that since Section 9 of the RH Law requires the Food and Drug Administration (FDA) to certify
that the product or supply is not to be used as an abortifacient, the assailed legislation effectively confirms that
abortifacients are not prohibited. Also considering that the FDA is not the agency that will actually supervise or
administer the use of these products and supplies to prospective patients, there is no way it can truthfully make a
certification that it shall not be used for abortifacient purposes.133
Position of the Respondents
For their part, the defenders of the RH Law point out that the intent of the Framers of the Constitution was simply the
prohibition of abortion. They contend that the RH Law does not violate the Constitution since the said law
emphasizes that only "non-abortifacient" reproductive health care services, methods, devices products and supplies
shall be made accessible to the public.134
According to the OSG, Congress has made a legislative determination that contraceptives are not abortifacients by
enacting the RH Law. As the RH Law was enacted with due consideration to various studies and consultations with
the World Health Organization (WHO) and other experts in the medical field, it is asserted that the Court afford
deference and respect to such a determination and pass judgment only when a particular drug or device is later on
determined as an abortive.135
For his part, respondent Lagman argues that the constitutional protection of one's right to life is not violated
considering that various studies of the WHO show that life begins from the implantation of the fertilized ovum.
Consequently, he argues that the RH Law is constitutional since the law specifically provides that only contraceptives
that do not prevent the implantation of the fertilized ovum are allowed.136
The Court's Position
Considering the close intimacy between "reproductive health" and "responsible parenthood" which bears to the
attainment of the goal of achieving "sustainable human development" as stated under its terms, the Court finds no
reason to believe that Congress intentionally sought to deceive the public as to the contents of the assailed
legislation.
II - SUBSTANTIVE ISSUES:
1-The Right to Life
Position of the Petitioners
The petitioners assail the RH Law because it violates the right to life and health of the unborn child under Section 12,
Article II of the Constitution. The assailed legislation allowing access to abortifacients/abortives effectively sanctions
abortion.130
It is a universally accepted principle that every human being enjoys the right to life.137
Even if not formally established, the right to life, being grounded on natural law, is inherent and, therefore, not a
creation of, or dependent upon a particular law, custom, or belief. It precedes and transcends any authority or the
laws of men.
In this jurisdiction, the right to life is given more than ample protection. Section 1, Article III of the Constitution
provides:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be
denied the equal protection of the laws.
As expounded earlier, the use of contraceptives and family planning methods in the Philippines is not of recent
vintage. From the enactment of R.A. No. 4729, entitled "An Act To Regulate The Sale, Dispensation, and/or
Distribution of Contraceptive Drugs and Devices "on June 18, 1966, prescribing rules on contraceptive drugs and
devices which prevent fertilization,138 to the promotion of male vasectomy and tubal ligation,139 and the ratification
of numerous international agreements, the country has long recognized the need to promote population control
through the use of contraceptives in order to achieve long-term economic development. Through the years, however,
the use of contraceptives and other family planning methods evolved from being a component of demographic
management, to one centered on the promotion of public health, particularly, reproductive health.140
This has resulted in the enactment of various measures promoting women's rights and health and the overall
promotion of the family's well-being. Thus, aside from R.A. No. 4729, R.A. No. 6365 or "The Population Act of the
Philippines" and R.A. No. 9710, otherwise known as the "The Magna Carta of Women" were legislated.
Notwithstanding this paradigm shift, the Philippine national population program has always been grounded two
cornerstone principles: "principle of no-abortion" and the "principle of non-coercion."141 As will be discussed later,
these principles are not merely grounded on administrative policy, but rather, originates from the constitutional
protection expressly provided to afford protection to life and guarantee religious freedom.
When Life Begins*
Majority of the Members of the Court are of the position that the question of when life begins is a scientific and
medical issue that should not be decided, at this stage, without proper hearing and evidence. During the deliberation,
however, it was agreed upon that the individual members of the Court could express their own views on this matter.
In this regard, the ponente, is of the strong view that life begins at fertilization.
In answering the question of when life begins, focus should be made on the particular phrase of Section 12 which
reads:
Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic
autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception.
The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development
of moral character shall receive the support of the Government.
should be understood in the sense they have in common use. What it says according to the text of the provision to
be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the
framers and the people mean what they say. Verba legis non est recedendum - from the words of a statute there
should be no departure.
The raison d' etre for the rule is essentially two-fold: First, because it is assumed that the words in which
constitutional provisions are couched express the objective sought to be attained; and second, because the
Constitution is not primarily a lawyer's document but essentially that of the people, in whose consciousness it should
ever be present as an important condition for the rule of law to prevail.
In conformity with the above principle, the traditional meaning of the word "conception" which, as described and
defined by all reliable and reputable sources, means that life begins at fertilization.
Webster's Third New International Dictionary describes it as the act of becoming pregnant, formation of a viable
zygote; the fertilization that results in a new entity capable of developing into a being like its parents.145
Black's Law Dictionary gives legal meaning to the term "conception" as the fecundation of the female ovum by the
male spermatozoon resulting in human life capable of survival and maturation under normal conditions.146
Even in jurisprudence, an unborn child has already a legal personality. In Continental Steel Manufacturing
Corporation v. Hon. Accredited Voluntary Arbitrator Allan S. Montano,147 it was written:
Life is not synonymous with civil personality. One need not acquire civil personality first before he/she could die.
Even a child inside the womb already has life. No less than the Constitution recognizes the life of the unborn from
conception, that the State must protect equally with the life of the mother. If the unborn already has life, then the
cessation thereof even prior to the child being delivered, qualifies as death. [Emphases in the original]
In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the US Supreme Court, said that the State "has
respect for human life at all stages in the pregnancy" and "a legitimate and substantial interest in preserving and
promoting fetal life." Invariably, in the decision, the fetus was referred to, or cited, as a baby or a child.149
Intent of the Framers
Textually, the Constitution affords protection to the unborn from conception. This is undisputable because before
conception, there is no unborn to speak of. For said reason, it is no surprise that the Constitution is mute as to any
proscription prior to conception or when life begins. The problem has arisen because, amazingly, there are quarters
who have conveniently disregarded the scientific fact that conception is reckoned from fertilization. They are waving
the view that life begins at implantation. Hence, the issue of when life begins.
In a nutshell, those opposing the RH Law contend that conception is synonymous with "fertilization" of the female
ovum by the male sperm.142 On the other side of the spectrum are those who assert that conception refers to the
"implantation" of the fertilized ovum in the uterus.143
Plain and Legal Meaning
It is a canon in statutory construction that the words of the Constitution should be interpreted in their plain and
ordinary meaning. As held in the recent case of Chavez v. Judicial Bar Council:144
One of the primary and basic rules in statutory construction is that where the words of a statute are clear, plain, and
free from ambiguity, it must be given its literal meaning and applied without attempted interpretation. It is a wellsettled principle of constitutional construction that the language employed in the Constitution must be given their
ordinary meaning except where technical terms are employed. As much as possible, the words of the Constitution
Records of the Constitutional Convention also shed light on the intention of the Framers regarding the term
"conception" used in Section 12, Article II of the Constitution. From their deliberations, it clearly refers to the moment
of "fertilization." The records reflect the following:
Rev. Rigos: In Section 9, page 3, there is a sentence which reads:
"The State shall equally protect the life of the mother and the life of the unborn from the moment of conception."
When is the moment of conception?
xxx
Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is fertilized by the sperm that there is
human life. x x x.150
xxx
As to why conception is reckoned from fertilization and, as such, the beginning of human life, it was explained:
Mr. Villegas: I propose to review this issue in a biological manner. The first question that needs to be answered is: Is
the fertilized ovum alive? Biologically categorically says yes, the fertilized ovum is alive. First of all, like all living
organisms, it takes in nutrients which it processes by itself. It begins doing this upon fertilization. Secondly, as it takes
in these nutrients, it grows from within. Thirdly, it multiplies itself at a geometric rate in the continuous process of cell
division. All these processes are vital signs of life. Therefore, there is no question that biologically the fertilized ovum
has life.
The second question: Is it human? Genetics gives an equally categorical "yes." At the moment of conception, the
nuclei of the ovum and the sperm rupture. As this happens 23 chromosomes from the ovum combine with 23
chromosomes of the sperm to form a total of 46 chromosomes. A chromosome count of 46 is found only - and I
repeat, only in human cells. Therefore, the fertilized ovum is human.
Since these questions have been answered affirmatively, we must conclude that if the fertilized ovum is both alive
and human, then, as night follows day, it must be human life. Its nature is human.151
Why the Constitution used the phrase "from the moment of conception" and not "from the moment of fertilization"
was not because of doubt when human life begins, but rather, because:
Mr. Tingson: x x x x the phrase from the moment of conception" was described by us here before with the scientific
phrase "fertilized ovum" may be beyond the comprehension of some people; we want to use the simpler phrase
"from the moment of conception."152
Thus, in order to ensure that the fertilized ovum is given ample protection under the Constitution, it was discussed:
Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose of writing a Constitution, without
specifying "from the moment of conception."
fertilized ovum to reach the uterus. Therefore, if we take the provision as it is proposed, these so called
contraceptives should be banned.
Mr. Villegas: Yes, if that physical fact is established, then that is what is called abortifacient and, therefore, would be
unconstitutional and should be banned under this provision.
Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to state whether or not these certain
contraceptives are abortifacient. Scientifically and based on the provision as it is now proposed, they are already
considered abortifacient.154
From the deliberations above-quoted, it is apparent that the Framers of the Constitution emphasized that the State
shall provide equal protection to both the mother and the unborn child from the earliest opportunity of life, that is,
upon fertilization or upon the union of the male sperm and the female ovum. It is also apparent is that the Framers of
the Constitution intended that to prohibit Congress from enacting measures that would allow it determine when life
begins.
Equally apparent, however, is that the Framers of the Constitution did not intend to ban all contraceptives for being
unconstitutional. In fact, Commissioner Bernardo Villegas, spearheading the need to have a constitutional provision
on the right to life, recognized that the determination of whether a contraceptive device is an abortifacient is a
question of fact which should be left to the courts to decide on based on established evidence.155
From the discussions above, contraceptives that kill or destroy the fertilized ovum should be deemed an abortive and
thus prohibited. Conversely, contraceptives that actually prevent the union of the male sperm and the female ovum,
and those that similarly take action prior to fertilization should be deemed non-abortive, and thus, constitutionally
permissible.
As emphasized by the Framers of the Constitution:
xxx
Mr. Davide: I would not subscribe to that particular view because according to the Commissioner's own admission,
he would leave it to Congress to define when life begins. So, Congress can define life to begin from six months after
fertilization; and that would really be very, very, dangerous. It is now determined by science that life begins from the
moment of conception. There can be no doubt about it. So we should not give any doubt to Congress, too.153
Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point. Actually, that is one of the questions I
was going to raise during the period of interpellations but it has been expressed already. The provision, as proposed
right now states:
The State shall equally protect the life of the mother and the life of the unborn from the moment of conception.
When it speaks of "from the moment of conception," does this mean when the egg meets the sperm?
Mr. Villegas: Yes, the ovum is fertilized by the sperm.
Mr. Gascon: Therefore that does not leave to Congress the right to determine whether certain contraceptives that we
know today are abortifacient or not because it is a fact that some of the so-called contraceptives deter the rooting of
the ovum in the uterus. If fertilization has already occurred, the next process is for the fertilized ovum to travel
towards the uterus and to take root. What happens with some contraceptives is that they stop the opportunity for the
xxx
xxx
Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am pro-life, to the point that I would like not only
to protect the life of the unborn, but also the lives of the millions of people in the world by fighting for a nuclear-free
world. I would just like to be assured of the legal and pragmatic implications of the term "protection of the life of the
unborn from the moment of conception." I raised some of these implications this afternoon when I interjected in the
interpellation of Commissioner Regalado. I would like to ask that question again for a categorical answer.
I mentioned that if we institutionalize the term "the life of the unborn from the moment of conception" we are also
actually saying "no," not "maybe," to certain contraceptives which are already being encouraged at this point in time.
Is that the sense of the committee or does it disagree with me?
Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be preventive. There is no unborn yet. That is
yet unshaped.
Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some contraceptives, such as the intra-uterine
device which actually stops the egg which has already been fertilized from taking route to the uterus. So if we say
"from the moment of conception," what really occurs is that some of these contraceptives will have to be
unconstitutionalized.
Mr. Azcuna: Yes, to the extent that it is after the fertilization.
Mr. Gascon: Thank you, Mr. Presiding Officer.156
The fact that not all contraceptives are prohibited by the 1987 Constitution is even admitted by petitioners during the
oral arguments. There it was conceded that tubal ligation, vasectomy, even condoms are not classified as
abortifacients.157
Atty. Noche:
Before the union of the eggs, egg and the sperm, there is no life yet.
Justice Bersamin:
And it's not, I have to admit it's not an abortifacient, Your Honor.158
Medical Meaning
That conception begins at fertilization is not bereft of medical foundation. Mosby s Medical, Nursing, and Allied
Health Dictionary defines conception as "the beginning of pregnancy usually taken to be the instant a spermatozoon
enters an ovum and forms a viable zygote."159
It describes fertilization as "the union of male and female gametes to form a zygote from which the embryo
develops."160
There is no life.
Atty. Noche:
The Textbook of Obstetrics (Physiological & Pathological Obstetrics),161 used by medical schools in the Philippines,
also concludes that human life (human person) begins at the moment of fertilization with the union of the egg and the
sperm resulting in the formation of a new individual, with a unique genetic composition that dictates all
developmental stages that ensue.
So, there is no life to be protected.

Justice Bersamin:
To be protected.
Similarly, recent medical research on the matter also reveals that: "Human development begins after the union of
male and female gametes or germ cells during a process known as fertilization (conception). Fertilization is a
sequence of events that begins with the contact of a sperm (spermatozoon) with a secondary oocyte (ovum) and
ends with the fusion of their pronuclei (the haploid nuclei of the sperm and ovum) and the mingling of their
chromosomes to form a new cell. This fertilized ovum, known as a zygote, is a large diploid cell that is the beginning,
or primordium, of a human being."162
Atty. Noche:
Under Section 12, yes.
Justice Bersamin:
So you have no objection to condoms?
The authors of Human Embryology & Teratology163 mirror the same position. They wrote: "Although life is a
continuous process, fertilization is a critical landmark because, under ordinary circumstances, a new, genetically
distinct human organism is thereby formed.... The combination of 23 chromosomes present in each pronucleus
results in 46 chromosomes in the zygote. Thus the diploid number is restored and the embryonic genome is formed.
The embryo now exists as a genetic unity."
In support of the RH Bill, The Philippine Medical Association came out with a "Paper on the Reproductive Health Bill
(Responsible Parenthood Bill)" and therein concluded that:
Atty. Noche:
CONCLUSION
Not under Section 12, Article II.
Justice Bersamin:
Even if there is already information that condoms sometimes have porosity?
The PMA throws its full weight in supporting the RH Bill at the same time that PMA maintains its strong position that
fertilization is sacred because it is at this stage that conception, and thus human life, begins. Human lives are sacred
from the moment of conception, and that destroying those new lives is never licit, no matter what the purported good
outcome would be. In terms of biology and human embryology, a human being begins immediately at fertilization and
after that, there is no point along the continuous line of human embryogenesis where only a "potential" human being
can be posited. Any philosophical, legal, or political conclusion cannot escape this objective scientific fact.
Atty. Noche:
Well, yes, Your Honor, there are scientific findings to that effect, Your Honor, but I am discussing here Section 12,
Article II, Your Honor, yes.
Justice Bersamin:
Alright.
Atty. Noche:
The scientific evidence supports the conclusion that a zygote is a human organism and that the life of a new human
being commences at a scientifically well defined "moment of conception." This conclusion is objective, consistent
with the factual evidence, and independent of any specific ethical, moral, political, or religious view of human life or of
human embryos.164
Conclusion: The Moment of Conception is Reckoned from
Fertilization
In all, whether it be taken from a plain meaning, or understood under medical parlance, and more importantly,
following the intention of the Framers of the Constitution, the undeniable conclusion is that a zygote is a human
organism and that the life of a new human being commences at a scientifically well-defined moment of conception,
that is, upon fertilization.
For the above reasons, the Court cannot subscribe to the theory advocated by Hon. Lagman that life begins at
implantation.165 According to him, "fertilization and conception are two distinct and successive stages in the
reproductive process. They are not identical and synonymous."166 Citing a letter of the WHO, he wrote that "medical
authorities confirm that the implantation of the fertilized ovum is the commencement of conception and it is only after
implantation that pregnancy can be medically detected."167
(q) Reproductive health care refers to the access to a full range of methods, facilities, services and supplies that
contribute to reproductive health and well-being by addressing reproductive health-related problems. It also includes
sexual health, the purpose of which is the enhancement of life and personal relations. The elements of reproductive
health care include the following:
xxx.
(3) Proscription of abortion and management of abortion complications;
xxx.
This theory of implantation as the beginning of life is devoid of any legal or scientific mooring. It does not pertain to
the beginning of life but to the viability of the fetus. The fertilized ovum/zygote is not an inanimate object - it is a living
human being complete with DNA and 46 chromosomes.168 Implantation has been conceptualized only for
convenience by those who had population control in mind. To adopt it would constitute textual infidelity not only to the
RH Law but also to the Constitution.
Not surprisingly, even the OSG does not support this position.
If such theory would be accepted, it would unnervingly legitimize the utilization of any drug or device that would
prevent the implantation of the fetus at the uterine wall. It would be provocative and further aggravate religious-based
divisiveness.
It would legally permit what the Constitution proscribes - abortion and abortifacients.
The RH Law and Abortion
The clear and unequivocal intent of the Framers of the 1987 Constitution in protecting the life of the unborn from
conception was to prevent the Legislature from enacting a measure legalizing abortion. It was so clear that even the
Court cannot interpret it otherwise. This intent of the Framers was captured in the record of the proceedings of the
1986 Constitutional Commission. Commissioner Bernardo Villegas, the principal proponent of the protection of the
unborn from conception, explained:
The intention .. .is to make sure that there would be no pro-abortion laws ever passed by Congress or any proabortion decision passed by the Supreme Court.169
2] xx x.
Section 4. x x x.
(s) Reproductive health rights refers to the rights of individuals and couples, to decide freely and responsibly whether
or not to have children; the number, spacing and timing of their children; to make other decisions concerning
reproduction, free of discrimination, coercion and violence; to have the information and means to do so; and to attain
the highest standard of sexual health and reproductive health: Provided, however, That reproductive health rights do
not include abortion, and access to abortifacients.
3] xx x.
SEC. 29. Repealing Clause. - Except for prevailing laws against abortion, any law, presidential decree or issuance,
executive order, letter of instruction, administrative order, rule or regulation contrary to or is inconsistent with the
provisions of this Act including Republic Act No. 7392, otherwise known as the Midwifery Act, is hereby repealed,
modified or amended accordingly.
The RH Law and Abortifacients
In carrying out its declared policy, the RH Law is consistent in prohibiting abortifacients. To be clear, Section 4(a) of
the RH Law defines an abortifacient as:
Section 4. Definition of Terms - x x x x
A reading of the RH Law would show that it is in line with this intent and actually proscribes abortion. While the Court
has opted not to make any determination, at this stage, when life begins, it finds that the RH Law itself clearly
mandates that protection be afforded from the moment of fertilization. As pointed out by Justice Carpio, the RH Law
is replete with provisions that embody the policy of the law to protect to the fertilized ovum and that it should be
afforded safe travel to the uterus for implantation.170
(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside the mother's
womb or the prevention of the fertilized ovum to reach and be implanted in the mother's womb upon determination of
the FDA.
Moreover, the RH Law recognizes that abortion is a crime under Article 256 of the Revised Penal Code, which
penalizes the destruction or expulsion of the fertilized ovum. Thus:
As stated above, the RH Law mandates that protection must be afforded from the moment of fertilization. By using
the word " or," the RH Law prohibits not only drugs or devices that prevent implantation, but also those that induce
abortion and those that induce the destruction of a fetus inside the mother's womb. Thus, an abortifacient is any drug
or device that either:
1] xx x.
(a) Induces abortion; or
Section 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as follows:
xxx.
(b) Induces the destruction of a fetus inside the mother's womb; or

(c) Prevents the fertilized ovum to reach and be implanted in the mother's womb, upon determination of
the FDA.
Contrary to the assertions made by the petitioners, the Court finds that the RH Law, consistent with the Constitution,
recognizes that the fertilized ovum already has life and that the State has a bounden duty to protect it. The
conclusion becomes clear because the RH Law, first, prohibits any drug or device that induces abortion (first kind),
which, as discussed exhaustively above, refers to that which induces the killing or the destruction of the fertilized
ovum, and, second, prohibits any drug or device the fertilized ovum to reach and be implanted in the mother's womb
(third kind).
By expressly declaring that any drug or device that prevents the fertilized ovum to reach and be implanted in the
mother's womb is an abortifacient (third kind), the RH Law does not intend to mean at all that life only begins only at
implantation, as Hon. Lagman suggests. It also does not declare either that protection will only be given upon
implantation, as the petitioners likewise suggest. Rather, it recognizes that: one, there is a need to protect the
fertilized ovum which already has life, and two, the fertilized ovum must be protected the moment it becomes existent
- all the way until it reaches and implants in the mother's womb. After all, if life is only recognized and afforded
protection from the moment the fertilized ovum implants - there is nothing to prevent any drug or device from killing
or destroying the fertilized ovum prior to implantation.
From the foregoing, the Court finds that inasmuch as it affords protection to the fertilized ovum, the RH Law does not
sanction abortion. To repeat, it is the Court's position that life begins at fertilization, not at implantation. When a
fertilized ovum is implanted in the uterine wall , its viability is sustained but that instance of implantation is not the
point of beginning of life. It started earlier. And as defined by the RH Law, any drug or device that induces abortion,
that is, which kills or destroys the fertilized ovum or prevents the fertilized ovum to reach and be implanted in the
mother's womb, is an abortifacient.
Section 3.01 For purposes of these Rules, the terms shall be defined as follows:
a) Abortifacient refers to any drug or device that primarily induces abortion or the destruction of a fetus inside the
mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's womb upon
determination of the Food and Drug Administration (FDA). [Emphasis supplied]
Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:
j) Contraceptive refers to any safe, legal, effective and scientifically proven modern family planning method, device,
or health product, whether natural or artificial, that prevents pregnancy but does not primarily destroy a fertilized
ovum or prevent a fertilized ovum from being implanted in the mother's womb in doses of its approved indication as
determined by the Food and Drug Administration (FDA).
The above-mentioned section of the RH-IRR allows "contraceptives" and recognizes as "abortifacient" only those
that primarily induce abortion or the destruction of a fetus inside the mother's womb or the prevention of the fertilized
ovum to reach and be implanted in the mother's womb.172
This cannot be done.
In this regard, the observations of Justice Brion and Justice Del Castillo are well taken. As they pointed out, with the
insertion of the word "primarily," Section 3.0l(a) and G) of the RH-IRR173 must be struck down for being ultra vires.
Proviso Under Section 9 of the RH Law

This notwithstanding, the Court finds that the proviso under Section 9 of the law that "any product or supply included
or to be included in the EDL must have a certification from the FDA that said product and supply is made available on
the condition that it is not to be used as an abortifacient" as empty as it is absurd. The FDA, with all its expertise,
cannot fully attest that a drug or device will not all be used as an abortifacient, since the agency cannot be present in
every instance when the contraceptive product or supply will be used.171
Pursuant to its declared policy of providing access only to safe, legal and non-abortifacient contraceptives, however,
the Court finds that the proviso of Section 9, as worded, should bend to the legislative intent and mean that "any
product or supply included or to be included in the EDL must have a certification from the FDA that said product and
supply is made available on the condition that it cannot be used as abortifacient." Such a construction is consistent
with the proviso under the second paragraph of the same section that provides:
Provided, further, That the foregoing offices shall not purchase or acquire by any means emergency contraceptive
pills, postcoital pills, abortifacients that will be used for such purpose and their other forms or equivalent.
Abortifacients under the RH-IRR
At this juncture, the Court agrees with ALFI that the authors of the RH-IRR gravely abused their office when they
redefined the meaning of abortifacient. The RH Law defines "abortifacient" as follows:
SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as follows:
(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside the mother's
womb or the prevention of the fertilized ovum to reach and be implanted in the mother's womb upon determination of
the FDA.
Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:
Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G) of the RH-IRR is indeed ultra vires. It
contravenes Section 4(a) of the RH Law and should, therefore, be declared invalid. There is danger that the insertion
of the qualifier "primarily" will pave the way for the approval of contraceptives which may harm or destroy the life of
the unborn from conception/fertilization in violation of Article II, Section 12 of the Constitution. With such qualification
in the RH-IRR, it appears to insinuate that a contraceptive will only be considered as an "abortifacient" if its sole
known effect is abortion or, as pertinent here, the prevention of the implantation of the fertilized ovum.
For the same reason, this definition of "contraceptive" would permit the approval of contraceptives which are actually
abortifacients because of their fail-safe mechanism.174
Also, as discussed earlier, Section 9 calls for the certification by the FDA that these contraceptives cannot act as
abortive. With this, together with the definition of an abortifacient under Section 4 (a) of the RH Law and its declared
policy against abortion, the undeniable conclusion is that contraceptives to be included in the PNDFS and the EDL
will not only be those contraceptives that do not have the primary action of causing abortion or the destruction of a
fetus inside the mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's
womb, but also those that do not have the secondary action of acting the same way.
Indeed, consistent with the constitutional policy prohibiting abortion, and in line with the principle that laws should be
construed in a manner that its constitutionality is sustained, the RH Law and its implementing rules must be
consistent with each other in prohibiting abortion. Thus, the word " primarily" in Section 3.0l(a) and G) of the RH-IRR
should be declared void. To uphold the validity of Section 3.0l(a) and G) of the RH-IRR and prohibit only those
contraceptives that have the primary effect of being an abortive would effectively "open the floodgates to the
approval of contraceptives which may harm or destroy the life of the unborn from conception/fertilization in violation
of Article II, Section 12 of the Constitution."175
To repeat and emphasize, in all cases, the "principle of no abortion" embodied in the constitutional protection of life
must be upheld.
2-The Right to Health
The petitioners claim that the RH Law violates the right to health because it requires the inclusion of hormonal
contraceptives, intrauterine devices, injectables and family products and supplies in the National Drug Formulary and
the inclusion of the same in the regular purchase of essential medicines and supplies of all national
hospitals.176 Citing various studies on the matter, the petitioners posit that the risk of developing breast and cervical
cancer is greatly increased in women who use oral contraceptives as compared to women who never use them.
They point out that the risk is decreased when the use of contraceptives is discontinued. Further, it is contended that
the use of combined oral contraceptive pills is associated with a threefold increased risk of venous
thromboembolism, a twofold increased risk of ischematic stroke, and an indeterminate effect on risk of myocardial
infarction.177 Given the definition of "reproductive health" and "sexual health" under Sections 4(p)178 and (w)179 of
the RH Law, the petitioners assert that the assailed legislation only seeks to ensure that women have pleasurable
and satisfying sex lives.180
The OSG, however, points out that Section 15, Article II of the Constitution is not self-executory, it being a mere
statement of the administration's principle and policy. Even if it were self-executory, the OSG posits that medical
authorities refute the claim that contraceptive pose a danger to the health of women.181
A component to the right to life is the constitutional right to health. In this regard, the Constitution is replete with
provisions protecting and promoting the right to health. Section 15, Article II of the Constitution provides:
Section 15. The State shall protect and promote the right to health of the people and instill health consciousness
among them.
A portion of Article XIII also specifically provides for the States' duty to provide for the health of the people, viz:
HEALTH
Section 11. The State shall adopt an integrated and comprehensive approach to health development which shall
endeavor to make essential goods, health and other social services available to all the people at affordable cost.
There shall be priority for the needs of the underprivileged, sick, elderly, disabled, women, and children. The State
shall endeavor to provide free medical care to paupers.
Section 12. The State shall establish and maintain an effective food and drug regulatory system and undertake
appropriate health, manpower development, and research, responsive to the country's health needs and problems.
Section 13. The State shall establish a special agency for disabled person for their rehabilitation, self-development,
and self-reliance, and their integration into the mainstream of society.
practically nullify the mandate of the fundamental law. This can be cataclysmic. That is why the prevailing view is, as
it has always been, that
... in case of doubt, the Constitution should be considered self-executing rather than non-self-executing. . . . Unless
the contrary is clearly intended, the provisions of the Constitution should be considered self-executing, as a contrary
rule would give the legislature discretion to determine when, or whether, they shall be effective. These provisions
would be subordinated to the will of the lawmaking body, which could make them entirely meaningless by simply
refusing to pass the needed implementing statute. (Emphases supplied)
This notwithstanding, it bears mentioning that the petitioners, particularly ALFI, do not question contraception and
contraceptives per se.184 In fact, ALFI prays that the status quo - under R.A. No. 5921 and R.A. No. 4729, the sale
and distribution of contraceptives are not prohibited when they are dispensed by a prescription of a duly licensed by
a physician - be maintained.185
The legislative intent in the enactment of the RH Law in this regard is to leave intact the provisions of R.A. No. 4729.
There is no intention at all to do away with it. It is still a good law and its requirements are still in to be complied with.
Thus, the Court agrees with the observation of respondent Lagman that the effectivity of the RH Law will not lead to
the unmitigated proliferation of contraceptives since the sale, distribution and dispensation of contraceptive drugs
and devices will still require the prescription of a licensed physician. With R.A. No. 4729 in place, there exists
adequate safeguards to ensure the public that only contraceptives that are safe are made available to the public. As
aptly explained by respondent Lagman:
D. Contraceptives cannot be
dispensed and used without
prescription
108. As an added protection to voluntary users of contraceptives, the same cannot be dispensed and used without
prescription.
109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation, and/ or Distribution of Contraceptive
Drugs and Devices" and Republic Act No. 5921 or "An Act Regulating the Practice of Pharmacy and Setting
Standards of Pharmaceutical Education in the Philippines and for Other Purposes" are not repealed by the RH Law
and the provisions of said Acts are not inconsistent with the RH Law.
110. Consequently, the sale, distribution and dispensation of contraceptive drugs and devices are particularly
governed by RA No. 4729 which provides in full:
Finally, Section 9, Article XVI provides:
"Section 1. It shall be unlawful for any person, partnership, or corporation, to sell, dispense or otherwise distribute
whether for or without consideration, any contraceptive drug or device, unless such sale, dispensation or distribution
is by a duly licensed drug store or pharmaceutical company and with the prescription of a qualified medical
practitioner.
Section 9. The State shall protect consumers from trade malpractices and from substandard or hazardous products.
"Sec. 2 . For the purpose of this Act:
Contrary to the respondent's notion, however, these provisions are self-executing. Unless the provisions clearly
express the contrary, the provisions of the Constitution should be considered self-executory. There is no need for
legislation to implement these self-executing provisions.182 In Manila Prince Hotel v. GSIS,183 it was stated:
x x x Hence, unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate,
the presumption now is that all provisions of the constitution are self-executing. If the constitutional provisions are
treated as requiring legislation instead of self-executing, the legislature would have the power to ignore and
"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion which is used exclusively for the
purpose of preventing fertilization of the female ovum: and
"(b) "Contraceptive device" is any instrument, device, material, or agent introduced into the female
reproductive system for the primary purpose of preventing conception.
"Sec. 3 Any person, partnership, or corporation, violating the provisions of this Act shall be punished with a fine of not
more than five hundred pesos or an imprisonment of not less than six months or more than one year or both in the
discretion of the Court.
"This Act shall take effect upon its approval.
"Approved: June 18, 1966"
111. Of the same import, but in a general manner, Section 25 of RA No. 5921 provides:
"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No medicine, pharmaceutical, or drug of
whatever nature and kind or device shall be compounded, dispensed, sold or resold, or otherwise be made available
to the consuming public except through a prescription drugstore or hospital pharmacy, duly established in
accordance with the provisions of this Act.
112. With all of the foregoing safeguards, as provided for in the RH Law and other relevant statutes, the pretension of
the petitioners that the RH Law will lead to the unmitigated proliferation of contraceptives, whether harmful or not, is
completely unwarranted and baseless.186 [Emphases in the Original. Underlining supplied.]
In Re: Section 10 of the RH Law:
The foregoing safeguards should be read in connection with Section 10 of the RH Law which provides:
SEC. 10. Procurement and Distribution of Family Planning Supplies. - The DOH shall procure, distribute to LGUs and
monitor the usage of family planning supplies for the whole country. The DOH shall coordinate with all appropriate
local government bodies to plan and implement this procurement and distribution program. The supply and budget
allotments shall be based on, among others, the current levels and projections of the following:
(a) Number of women of reproductive age and couples who want to space or limit their children;
various kinds of contraceptives must first be measured up to the constitutional yardstick as expounded herein, to be
determined as the case presents itself.
At this point, the Court is of the strong view that Congress cannot legislate that hormonal contraceptives and intrauterine devices are safe and non-abortifacient. The first sentence of Section 9 that ordains their inclusion by the
National Drug Formulary in the EDL by using the mandatory "shall" is to be construed as operative only after they
have been tested, evaluated, and approved by the FDA. The FDA, not Congress, has the expertise to determine
whether a particular hormonal contraceptive or intrauterine device is safe and non-abortifacient. The provision of the
third sentence concerning the requirements for the inclusion or removal of a particular family planning supply from
the EDL supports this construction.
Stated differently, the provision in Section 9 covering the inclusion of hormonal contraceptives, intra-uterine devices,
injectables, and other safe, legal, non-abortifacient and effective family planning products and supplies by the
National Drug Formulary in the EDL is not mandatory. There must first be a determination by the FDA that they are in
fact safe, legal, non-abortifacient and effective family planning products and supplies. There can be no
predetermination by Congress that the gamut of contraceptives are "safe, legal, non-abortifacient and effective"
without the proper scientific examination.
3 -Freedom of Religion
and the Right to Free Speech
Position of the Petitioners:
1. On Contraception
While contraceptives and procedures like vasectomy and tubal ligation are not covered by the constitutional
proscription, there are those who, because of their religious education and background, sincerely believe that
contraceptives, whether abortifacient or not, are evil. Some of these are medical practitioners who essentially claim
that their beliefs prohibit not only the use of contraceptives but also the willing participation and cooperation in all
things dealing with contraceptive use. Petitioner PAX explained that "contraception is gravely opposed to marital
chastity, it is contrary to the good of the transmission of life, and to the reciprocal self-giving of the spouses; it harms
true love and denies the sovereign rule of God in the transmission of Human life."188
(b) Contraceptive prevalence rate, by type of method used; and

(c) Cost of family planning supplies.
Provided, That LGUs may implement its own procurement, distribution and monitoring program consistent with the
overall provisions of this Act and the guidelines of the DOH.
Thus, in the distribution by the DOH of contraceptive drugs and devices, it must consider the provisions of R.A. No.
4729, which is still in effect, and ensure that the contraceptives that it will procure shall be from a duly licensed drug
store or pharmaceutical company and that the actual dispensation of these contraceptive drugs and devices will
done following a prescription of a qualified medical practitioner. The distribution of contraceptive drugs and devices
must not be indiscriminately done. The public health must be protected by all possible means. As pointed out by
Justice De Castro, a heavy responsibility and burden are assumed by the government in supplying contraceptive
drugs and devices, for it may be held accountable for any injury, illness or loss of life resulting from or incidental to
their use.187
At any rate, it bears pointing out that not a single contraceptive has yet been submitted to the FDA pursuant to the
RH Law. It behooves the Court to await its determination which drugs or devices are declared by the FDA as safe, it
being the agency tasked to ensure that food and medicines available to the public are safe for public consumption.
Consequently, the Court finds that, at this point, the attack on the RH Law on this ground is premature. Indeed, the
The petitioners question the State-sponsored procurement of contraceptives, arguing that the expenditure of their
taxes on contraceptives violates the guarantee of religious freedom since contraceptives contravene their religious
beliefs.189
2. On Religious Accommodation and
The Duty to Refer
Petitioners Imbong and Luat note that while the RH Law attempts to address religious sentiments by making
provisions for a conscientious objector, the constitutional guarantee is nonetheless violated because the law also
imposes upon the conscientious objector the duty to refer the patient seeking reproductive health services to another
medical practitioner who would be able to provide for the patient's needs. For the petitioners, this amounts to
requiring the conscientious objector to cooperate with the very thing he refuses to do without violating his/her
religious beliefs.190
They further argue that even if the conscientious objector's duty to refer is recognized, the recognition is unduly
limited, because although it allows a conscientious objector in Section 23 (a)(3) the option to refer a patient seeking
reproductive health services and information - no escape is afforded the conscientious objector in Section 23 (a)(l)
and (2), i.e. against a patient seeking reproductive health procedures. They claim that the right of other individuals to
conscientiously object, such as: a) those working in public health facilities referred to in Section 7; b) public officers
involved in the implementation of the law referred to in Section 23(b ); and c) teachers in public schools referred to in
Section 14 of the RH Law, are also not recognize.191
Petitioner Echavez and the other medical practitioners meanwhile, contend that the requirement to refer the matter to
another health care service provider is still considered a compulsion on those objecting healthcare service providers.
They add that compelling them to do the act against their will violates the Doctrine of Benevolent Neutrality. Sections
9, 14 and 1 7 of the law are too secular that they tend to disregard the religion of Filipinos. Authorizing the use of
contraceptives with abortive effects, mandatory sex education, mandatory pro-bono reproductive health services to
indigents encroach upon the religious freedom of those upon whom they are required.192
Petitioner CFC also argues that the requirement for a conscientious objector to refer the person seeking reproductive
health care services to another provider infringes on one's freedom of religion as it forces the objector to become an
unwilling participant in the commission of a serious sin under Catholic teachings. While the right to act on one's belief
may be regulated by the State, the acts prohibited by the RH Law are passive acts which produce neither harm nor
injury to the public.193
Petitioner CFC adds that the RH Law does not show compelling state interest to justify regulation of religious
freedom because it mentions no emergency, risk or threat that endangers state interests. It does not explain how the
rights of the people (to equality, non-discrimination of rights, sustainable human development, health, education,
information, choice and to make decisions according to religious convictions, ethics, cultural beliefs and the demands
of responsible parenthood) are being threatened or are not being met as to justify the impairment of religious
freedom.194
Finally, the petitioners also question Section 15 of the RH Law requiring would-be couples to attend family planning
and responsible parenthood seminars and to obtain a certificate of compliance. They claim that the provision forces
individuals to participate in the implementation of the RH Law even if it contravenes their religious beliefs.195 As the
assailed law dangles the threat of penalty of fine and/or imprisonment in case of non-compliance with its provisions,
the petitioners claim that the RH Law forcing them to provide, support and facilitate access and information to
contraception against their beliefs must be struck down as it runs afoul to the constitutional guarantee of religious
freedom.
hand, who is allowed to keep silent but is required to refer -and that of the citizen who needs access to information
and who has the right to expect that the health care professional in front of her will act professionally. For the
respondents, the concession given by the State under Section 7 and 23(a)(3) is sufficient accommodation to the right
to freely exercise one's religion without unnecessarily infringing on the rights of others.202
Whatever burden is placed on the petitioner's religious freedom is minimal as the duty to refer is limited in duration,
location and impact.203
Regarding mandatory family planning seminars under Section 15 , the respondents claim that it is a reasonable
regulation providing an opportunity for would-be couples to have access to information regarding parenthood, family
planning, breastfeeding and infant nutrition. It is argued that those who object to any information received on account
of their attendance in the required seminars are not compelled to accept information given to them. They are
completely free to reject any information they do not agree with and retain the freedom to decide on matters of family
life without intervention of the State.204
For their part, respondents De Venecia et al., dispute the notion that natural family planning is the only method
acceptable to Catholics and the Catholic hierarchy. Citing various studies and surveys on the matter, they highlight
the changing stand of the Catholic Church on contraception throughout the years and note the general acceptance of
the benefits of contraceptives by its followers in planning their families.
The Church and The State
At the outset, it cannot be denied that we all live in a heterogeneous society. It is made up of people of diverse
ethnic, cultural and religious beliefs and backgrounds. History has shown us that our government, in law and in
practice, has allowed these various religious, cultural, social and racial groups to thrive in a single society together. It
has embraced minority groups and is tolerant towards all - the religious people of different sects and the nonbelievers. The undisputed fact is that our people generally believe in a deity, whatever they conceived Him to be, and
to whom they call for guidance and enlightenment in crafting our fundamental law. Thus, the preamble of the present
Constitution reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society, and
establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and
develop our patrimony, and secure to ourselves and our posterity, the blessings of independence and democracy
under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this
Constitution.
The Respondents' Positions

The respondents, on the other hand, contend that the RH Law does not provide that a specific mode or type of
contraceptives be used, be it natural or artificial. It neither imposes nor sanctions any religion or belief.196 They point
out that the RH Law only seeks to serve the public interest by providing accessible, effective and quality reproductive
health services to ensure maternal and child health, in line with the State's duty to bring to reality the social justice
health guarantees of the Constitution,197 and that what the law only prohibits are those acts or practices, which
deprive others of their right to reproductive health.198 They assert that the assailed law only seeks to guarantee
informed choice, which is an assurance that no one will be compelled to violate his religion against his free will.199
The respondents add that by asserting that only natural family planning should be allowed, the petitioners are
effectively going against the constitutional right to religious freedom, the same right they invoked to assail the
constitutionality of the RH Law.200 In other words, by seeking the declaration that the RH Law is unconstitutional,
the petitioners are asking that the Court recognize only the Catholic Church's sanctioned natural family planning
methods and impose this on the entire citizenry.201
With respect to the duty to refer, the respondents insist that the same does not violate the constitutional guarantee of
religious freedom, it being a carefully balanced compromise between the interests of the religious objector, on one
The Filipino people in "imploring the aid of Almighty God " manifested their spirituality innate in our nature and
consciousness as a people, shaped by tradition and historical experience. As this is embodied in the preamble, it
means that the State recognizes with respect the influence of religion in so far as it instills into the mind the purest
principles of morality.205 Moreover, in recognition of the contributions of religion to society, the 1935, 1973 and 1987
constitutions contain benevolent and accommodating provisions towards religions such as tax exemption of church
property, salary of religious officers in government institutions, and optional religious instructions in public schools.
The Framers, however, felt the need to put up a strong barrier so that the State would not encroach into the affairs of
the church, and vice-versa. The principle of separation of Church and State was, thus, enshrined in Article II, Section
6 of the 1987 Constitution, viz:
Section 6. The separation of Church and State shall be inviolable.
Verily, the principle of separation of Church and State is based on mutual respect.1wphi1 Generally, the State
cannot meddle in the internal affairs of the church, much less question its faith and dogmas or dictate upon it. It
cannot favor one religion and discriminate against another. On the other hand, the church cannot impose its beliefs
and convictions on the State and the rest of the citizenry. It cannot demand that the nation follow its beliefs, even if it
sincerely believes that they are good for the country.
Consistent with the principle that not any one religion should ever be preferred over another, the Constitution in the
above-cited provision utilizes the term "church" in its generic sense, which refers to a temple, a mosque, an iglesia,
or any other house of God which metaphorically symbolizes a religious organization. Thus, the "Church" means the
religious congregations collectively.
Balancing the benefits that religion affords and the need to provide an ample barrier to protect the State from the
pursuit of its secular objectives, the Constitution lays down the following mandate in Article III, Section 5 and Article
VI, Section 29 (2), of the 1987 Constitution:
Section. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The
free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever
be allowed. No religious test shall be required for the exercise of civil or political rights.
Section 29.
xxx.
No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use,
benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest,
preacher, minister, other religious teacher, or dignitary as such, except when such priest, preacher, minister, or
dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium.
In short, the constitutional assurance of religious freedom provides two guarantees: the Establishment Clause and
the Free Exercise Clause.
The establishment clause "principally prohibits the State from sponsoring any religion or favoring any religion as
against other religions. It mandates a strict neutrality in affairs among religious groups."206 Essentially, it prohibits
the establishment of a state religion and the use of public resources for the support or prohibition of a religion.
On the other hand, the basis of the free exercise clause is the respect for the inviolability of the human
conscience.207 Under this part of religious freedom guarantee, the State is prohibited from unduly interfering with
the outside manifestations of one's belief and faith.208 Explaining the concept of religious freedom, the Court, in
Victoriano v. Elizalde Rope Workers Union209 wrote:
The constitutional provisions not only prohibits legislation for the support of any religious tenets or the modes of
worship of any sect, thus forestalling compulsion by law of the acceptance of any creed or the practice of any form of
worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise of one's chosen form of
religion within limits of utmost amplitude. It has been said that the religion clauses of the Constitution are all designed
to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the
common good. Any legislation whose effect or purpose is to impede the observance of one or all religions, or to
discriminate invidiously between the religions, is invalid, even though the burden may be characterized as being only
indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates conduct by
enacting, within its power, a general law which has for its purpose and effect to advance the state's secular goals, the
statute is valid despite its indirect burden on religious observance, unless the state can accomplish its purpose
without imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 Led. 2d. 563, 81 S. Ct. 144; McGowan v.
Maryland, 366 U.S. 420, 444-5 and 449).
As expounded in Escritor,
The establishment and free exercise clauses were not designed to serve contradictory purposes. They have a single
goal-to promote freedom of individual religious beliefs and practices. In simplest terms, the free exercise clause
prohibits government from inhibiting religious beliefs with penalties for religious beliefs and practice, while the
establishment clause prohibits government from inhibiting religious belief with rewards for religious beliefs and
practices. In other words, the two religion clauses were intended to deny government the power to use either the
carrot or the stick to influence individual religious beliefs and practices.210
Corollary to the guarantee of free exercise of one's religion is the principle that the guarantee of religious freedom is
comprised of two parts: the freedom to believe, and the freedom to act on one's belief. The first part is absolute. As
explained in Gerona v. Secretary of Education:211
The realm of belief and creed is infinite and limitless bounded only by one's imagination and thought. So is the
freedom of belief, including religious belief, limitless and without bounds. One may believe in most anything, however
strange, bizarre and unreasonable the same may appear to others, even heretical when weighed in the scales of
orthodoxy or doctrinal standards. But between the freedom of belief and the exercise of said belief, there is quite a
stretch of road to travel.212
The second part however, is limited and subject to the awesome power of the State and can be enjoyed only with
proper regard to the rights of others. It is "subject to regulation where the belief is translated into external acts that
affect the public welfare."213
Legislative Acts and the
Free Exercise Clause
Thus, in case of conflict between the free exercise clause and the State, the Court adheres to the doctrine of
benevolent neutrality. This has been clearly decided by the Court in Estrada v. Escritor, (Escritor)214 where it was
stated "that benevolent neutrality-accommodation, whether mandatory or permissive, is the spirit, intent and
framework underlying the Philippine Constitution."215 In the same case, it was further explained that"
The benevolent neutrality theory believes that with respect to these governmental actions, accommodation of religion
may be allowed, not to promote the government's favored form of religion, but to allow individuals and groups to
exercise their religion without hindrance. "The purpose of accommodation is to remove a burden on, or facilitate the
exercise of, a person's or institution's religion."216 "What is sought under the theory of accommodation is not a
declaration of unconstitutionality of a facially neutral law, but an exemption from its application or its 'burdensome
effect,' whether by the legislature or the courts."217
In ascertaining the limits of the exercise of religious freedom, the compelling state interest test is
proper.218Underlying the compelling state interest test is the notion that free exercise is a fundamental right and that
laws burdening it should be subject to strict scrutiny.219 In Escritor, it was written:
Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first case on the Free
Exercise Clause, American Bible Society, the Court mentioned the "clear and present danger" test but did not employ
it. Nevertheless, this test continued to be cited in subsequent cases on religious liberty. The Gerona case then
pronounced that the test of permissibility of religious freedom is whether it violates the established institutions of
society and law. The Victoriano case mentioned the "immediate and grave danger" test as well as the doctrine that a
law of general applicability may burden religious exercise provided the law is the least restrictive means to
accomplish the goal of the law. The case also used, albeit inappropriately, the "compelling state interest" test. After
Victoriano , German went back to the Gerona rule. Ebralinag then employed the "grave and immediate danger" test
and overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went back to the " clear and present danger"
test in the maiden case of A merican Bible Society. Not surprisingly, all the cases which employed the "clear and
present danger" or "grave and immediate danger" test involved, in one form or another, religious speech as this test
is often used in cases on freedom of expression. On the other hand, the Gerona and German cases set the rule that
religious freedom will not prevail over established institutions of society and law. Gerona, however, which was the
authority cited by German has been overruled by Ebralinag which employed the "grave and immediate danger" test .
Victoriano was the only case that employed the "compelling state interest" test, but as explained previously, the use
of the test was inappropriate to the facts of the case.
The case at bar does not involve speech as in A merican Bible Society, Ebralinag and Iglesia ni Cristo where the
"clear and present danger" and "grave and immediate danger" tests were appropriate as speech has easily
discernible or immediate effects. The Gerona and German doctrine, aside from having been overruled, is not
congruent with the benevolent neutrality approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the
present case involves purely conduct arising from religious belief. The "compelling state interest" test is proper where
conduct is involved for the whole gamut of human conduct has different effects on the state's interests: some effects
may be immediate and short-term while others delayed and far-reaching. A test that would protect the interests of the
state in preventing a substantive evil, whether immediate or delayed, is therefore necessary. However, not any
interest of the state would suffice to prevail over the right to religious freedom as this is a fundamental right that
enjoys a preferred position in the hierarchy of rights - "the most inalienable and sacred of all human rights", in the
words of Jefferson. This right is sacred for an invocation of the Free Exercise Clause is an appeal to a higher
sovereignty. The entire constitutional order of limited government is premised upon an acknowledgment of such
higher sovereignty, thus the Filipinos implore the "aid of Almighty God in order to build a just and humane society and
establish a government." As held in Sherbert, only the gravest abuses, endangering paramount interests can limit
this fundamental right. A mere balancing of interests which balances a right with just a colorable state interest is
therefore not appropriate. Instead, only a compelling interest of the state can prevail over the fundamental right to
religious liberty. The test requires the state to carry a heavy burden, a compelling one, for to do otherwise would
allow the state to batter religion, especially the less powerful ones until they are destroyed. In determining which
shall prevail between the state's interest and religious liberty, reasonableness shall be the guide. The "compelling
state interest" serves the purpose of revering religious liberty while at the same time affording protection to the
paramount interests of the state. This was the test used in Sherbert which involved conduct, i.e. refusal to work on
Saturdays. In the end, the "compelling state interest" test, by upholding the paramount interests of the state, seeks to
protect the very state, without which, religious liberty will not be preserved. [Emphases in the original. Underlining
supplied.]
In the case at bench, it is not within the province of the Court to determine whether the use of contraceptives or one's
participation in the support of modem reproductive health measures is moral from a religious standpoint or whether
the same is right or wrong according to one's dogma or belief. For the Court has declared that matters dealing with
"faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church ... are unquestionably
ecclesiastical matters which are outside the province of the civil courts."220 The jurisdiction of the Court extends only
to public and secular morality. Whatever pronouncement the Court makes in the case at bench should be understood
only in this realm where it has authority. Stated otherwise, while the Court stands without authority to rule on
ecclesiastical matters, as vanguard of the Constitution, it does have authority to determine whether the RH Law
contravenes the guarantee of religious freedom.
At first blush, it appears that the RH Law recognizes and respects religion and religious beliefs and convictions. It is
replete with assurances the no one can be compelled to violate the tenets of his religion or defy his religious
convictions against his free will. Provisions in the RH Law respecting religious freedom are the following:
1. The State recognizes and guarantees the human rights of all persons including their right to equality and
nondiscrimination of these rights, the right to sustainable human development, the right to health which includes
reproductive health, the right to education and information, and the right to choose and make decisions for
themselves in accordance with their religious convictions, ethics, cultural beliefs, and the demands of responsible
parenthood. [Section 2, Declaration of Policy]
2 . The State recognizes marriage as an inviolable social institution and the foundation of the family which in turn is
the foundation of the nation. Pursuant thereto, the State shall defend:
(a) The right of spouses to found a family in accordance with their religious convictions and the demands of
responsible parenthood." [Section 2, Declaration of Policy]
3. The State shall promote and provide information and access, without bias, to all methods of family planning,
including effective natural and modern methods which have been proven medically safe, legal, non-abortifacient, and
effective in accordance with scientific and evidence-based medical research standards such as those registered and
approved by the FDA for the poor and marginalized as identified through the NHTS-PR and other government
measures of identifying marginalization: Provided, That the State shall also provide funding support to promote
modern natural methods of family planning, especially the Billings Ovulation Method, consistent with the needs of
acceptors and their religious convictions. [Section 3(e), Declaration of Policy]
4. The State shall promote programs that: (1) enable individuals and couples to have the number of children they
desire with due consideration to the health, particularly of women, and the resources available and affordable to
them and in accordance with existing laws, public morals and their religious convictions. [Section 3CDJ
5. The State shall respect individuals' preferences and choice of family planning methods that are in accordance with
their religious convictions and cultural beliefs, taking into consideration the State's obligations under various human
rights instruments. [Section 3(h)]
6. Active participation by nongovernment organizations (NGOs) , women's and people's organizations, civil society,
faith-based organizations, the religious sector and communities is crucial to ensure that reproductive health and
population and development policies, plans, and programs will address the priority needs of women, the poor, and
the marginalized. [Section 3(i)]
7. Responsible parenthood refers to the will and ability of a parent to respond to the needs and aspirations of the
family and children. It is likewise a shared responsibility between parents to determine and achieve the desired
number of children, spacing and timing of their children according to their own family life aspirations, taking into
account psychological preparedness, health status, sociocultural and economic concerns consistent with their
religious convictions. [Section 4(v)] (Emphases supplied)
While the Constitution prohibits abortion, laws were enacted allowing the use of contraceptives. To some medical
practitioners, however, the whole idea of using contraceptives is an anathema. Consistent with the principle of
benevolent neutrality, their beliefs should be respected.
The Establishment Clause
and Contraceptives
In the same breath that the establishment clause restricts what the government can do with religion, it also limits
what religious sects can or cannot do with the government. They can neither cause the government to adopt their
particular doctrines as policy for everyone, nor can they not cause the government to restrict other groups. To do so,
in simple terms, would cause the State to adhere to a particular religion and, thus, establishing a state religion.
Consequently, the petitioners are misguided in their supposition that the State cannot enhance its population control
program through the RH Law simply because the promotion of contraceptive use is contrary to their religious beliefs.
Indeed, the State is not precluded to pursue its legitimate secular objectives without being dictated upon by the
policies of any one religion. One cannot refuse to pay his taxes simply because it will cloud his conscience. The
demarcation line between Church and State demands that one render unto Caesar the things that are Caesar's and
unto God the things that are God's.221
The Free Exercise Clause and the Duty to Refer
While the RH Law, in espousing state policy to promote reproductive health manifestly respects diverse religious
beliefs in line with the Non-Establishment Clause, the same conclusion cannot be reached with respect to Sections
7, 23 and 24 thereof. The said provisions commonly mandate that a hospital or a medical practitioner to immediately
refer a person seeking health care and services under the law to another accessible healthcare provider despite their
conscientious objections based on religious or ethical beliefs.
In a situation where the free exercise of religion is allegedly burdened by government legislation or practice, the
compelling state interest test in line with the Court's espousal of the Doctrine of Benevolent Neutrality in Escritor,
finds application. In this case, the conscientious objector's claim to religious freedom would warrant an exemption
from obligations under the RH Law, unless the government succeeds in demonstrating a more compelling state
interest in the accomplishment of an important secular objective. Necessarily so, the plea of conscientious objectors
for exemption from the RH Law deserves no less than strict scrutiny.
In applying the test, the first inquiry is whether a conscientious objector's right to religious freedom has been
burdened. As in Escritor, there is no doubt that an intense tug-of-war plagues a conscientious objector. One side
coaxes him into obedience to the law and the abandonment of his religious beliefs, while the other entices him to a
clean conscience yet under the pain of penalty. The scenario is an illustration of the predicament of medical
practitioners whose religious beliefs are incongruent with what the RH Law promotes.
The Court is of the view that the obligation to refer imposed by the RH Law violates the religious belief and conviction
of a conscientious objector. Once the medical practitioner, against his will, refers a patient seeking information on
modem reproductive health products, services, procedures and methods, his conscience is immediately burdened as
he has been compelled to perform an act against his beliefs. As Commissioner Joaquin A. Bernas (Commissioner
Bernas) has written, "at the basis of the free exercise clause is the respect for the inviolability of the human
conscience.222
Though it has been said that the act of referral is an opt-out clause, it is, however, a false compromise because it
makes pro-life health providers complicit in the performance of an act that they find morally repugnant or offensive.
They cannot, in conscience, do indirectly what they cannot do directly. One may not be the principal, but he is equally
guilty if he abets the offensive act by indirect participation.
Moreover, the guarantee of religious freedom is necessarily intertwined with the right to free speech, it being an
externalization of one's thought and conscience. This in turn includes the right to be silent. With the constitutional
guarantee of religious freedom follows the protection that should be afforded to individuals in communicating their
beliefs to others as well as the protection for simply being silent. The Bill of Rights guarantees the liberty of the
individual to utter what is in his mind and the liberty not to utter what is not in his mind.223 While the RH Law seeks
to provide freedom of choice through informed consent, freedom of choice guarantees the liberty of the religious
conscience and prohibits any degree of compulsion or burden, whether direct or indirect, in the practice of one's
religion.224
In case of conflict between the religious beliefs and moral convictions of individuals, on one hand, and the interest of
the State, on the other, to provide access and information on reproductive health products, services, procedures and
methods to enable the people to determine the timing, number and spacing of the birth of their children, the Court is
of the strong view that the religious freedom of health providers, whether public or private, should be accorded
primacy. Accordingly, a conscientious objector should be exempt from compliance with the mandates of the RH Law.
If he would be compelled to act contrary to his religious belief and conviction, it would be violative of "the principle of
non-coercion" enshrined in the constitutional right to free exercise of religion.
Interestingly, on April 24, 2013, Scotland's Inner House of the Court of Session, found in the case of Doogan and
Wood v. NHS Greater Glasgow and Clyde Health Board,225 that the midwives claiming to be conscientious
objectors under the provisions of Scotland's Abortion Act of 1967, could not be required to delegate, supervise or
support staff on their labor ward who were involved in abortions.226 The Inner House stated "that if 'participation'
were defined according to whether the person was taking part 'directly' or ' indirectly' this would actually mean more
complexity and uncertainty."227
While the said case did not cover the act of referral, the applicable principle was the same - they could not be forced
to assist abortions if it would be against their conscience or will.
Institutional Health Providers
The same holds true with respect to non-maternity specialty hospitals and hospitals owned and operated by a
religious group and health care service providers. Considering that Section 24 of the RH Law penalizes such
institutions should they fail or refuse to comply with their duty to refer under Section 7 and Section 23(a)(3), the Court
deems that it must be struck down for being violative of the freedom of religion. The same applies to Section 23(a)(l)
and (a)(2) in relation to Section 24, considering that in the dissemination of information regarding programs and
services and in the performance of reproductive health procedures, the religious freedom of health care service
providers should be respected.
In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the Executive Secretary228 it was stressed:
Freedom of religion was accorded preferred status by the framers of our fundamental law. And this Court has
consistently affirmed this preferred status, well aware that it is "designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes
he ought to live, consistent with the liberty of others and with the common good."10
The Court is not oblivious to the view that penalties provided by law endeavour to ensure compliance. Without set
consequences for either an active violation or mere inaction, a law tends to be toothless and ineffectual.
Nonetheless, when what is bartered for an effective implementation of a law is a constitutionally-protected right the
Court firmly chooses to stamp its disapproval. The punishment of a healthcare service provider, who fails and/or
refuses to refer a patient to another, or who declines to perform reproductive health procedure on a patient because
incompatible religious beliefs, is a clear inhibition of a constitutional guarantee which the Court cannot allow.
The Implementing Rules and Regulation (RH-IRR)
The last paragraph of Section 5.24 of the RH-IRR reads:
Provided, That skilled health professional such as provincial, city or municipal health officers, chiefs of hospital, head
nurses, supervising midwives, among others, who by virtue of their office are specifically charged with the duty to
implement the provisions of the RPRH Act and these Rules, cannot be considered as conscientious objectors.
This is discriminatory and violative of the equal protection clause. The conscientious objection clause should be
equally protective of the religious belief of public health officers. There is no perceptible distinction why they should
not be considered exempt from the mandates of the law. The protection accorded to other conscientious objectors
should equally apply to all medical practitioners without distinction whether they belong to the public or private sector.
After all, the freedom to believe is intrinsic in every individual and the protective robe that guarantees its free
exercise is not taken off even if one acquires employment in the government.
It should be stressed that intellectual liberty occupies a place inferior to none in the hierarchy of human values. The
mind must be free to think what it wills, whether in the secular or religious sphere, to give expression to its beliefs by
oral discourse or through the media and, thus, seek other candid views in occasions or gatherings or in more
permanent aggrupation. Embraced in such concept then are freedom of religion, freedom of speech, of the press,
assembly and petition, and freedom of association.229
The discriminatory provision is void not only because no such exception is stated in the RH Law itself but also
because it is violative of the equal protection clause in the Constitution. Quoting respondent Lagman, if there is any
conflict between the RH-IRR and the RH Law, the law must prevail.
Justice Mendoza:
Senior State Solicitor Hilbay:
I'll go to another point. The RH law .. .in your Comment- in-Intervention on page 52, you mentioned RH Law is
replete with provisions in upholding the freedom of religion and respecting religious convictions. Earlier, you affirmed
this with qualifications. Now, you have read, I presumed you have read the IRR-Implementing Rules and Regulations
of the RH Bill?
Yes, Justice.
Justice De Castro:
Congressman Lagman:
... which you are discussing awhile ago with Justice Abad. What is the compelling State interest in imposing this duty
to refer to a conscientious objector which refuses to do so because of his religious belief?
Yes, Your Honor, I have read but I have to admit, it's a long IRR and I have not thoroughly dissected the nuances of
the provisions.
Justice Mendoza:
I will read to you one provision. It's Section 5.24. This I cannot find in the RH Law. But in the IRR it says: " .... skilled
health professionals such as provincial, city or municipal health officers, chief of hospitals, head nurses, supervising
midwives, among others, who by virtue of their office are specifically charged with the duty to implement the
provisions of the RPRH Act and these Rules, cannot be considered as conscientious objectors." Do you agree with
this?
Congressman Lagman:
I will have to go over again the provisions, Your Honor.
Justice Mendoza:
In other words, public health officers in contrast to the private practitioners who can be conscientious objectors,
skilled health professionals cannot be considered conscientious objectors. Do you agree with this? Is this not against
the constitutional right to the religious belief?
Congressman Lagman:
Your Honor, if there is any conflict between the IRR and the law, the law must prevail.230
Compelling State Interest
The foregoing discussion then begets the question on whether the respondents, in defense of the subject provisions,
were able to: 1] demonstrate a more compelling state interest to restrain conscientious objectors in their choice of
services to render; and 2] discharge the burden of proof that the obligatory character of the law is the least intrusive
means to achieve the objectives of the law.
Unfortunately, a deep scrutiny of the respondents' submissions proved to be in vain. The OSG was curiously silent in
the establishment of a more compelling state interest that would rationalize the curbing of a conscientious objector's
right not to adhere to an action contrary to his religious convictions. During the oral arguments, the OSG maintained
the same silence and evasion. The Transcripts of the Stenographic Notes disclose the following:
Justice De Castro:
Let's go back to the duty of the conscientious objector to refer. ..
Ahh, Your Honor, ..

Justice De Castro:
What is the compelling State interest to impose this burden?
In the first place, Your Honor, I don't believe that the standard is a compelling State interest, this is an ordinary health
legislation involving professionals. This is not a free speech matter or a pure free exercise matter. This is a regulation
by the State of the relationship between medical doctors and their patients.231
Resultantly, the Court finds no compelling state interest which would limit the free exercise clause of the
conscientious objectors, however few in number. Only the prevention of an immediate and grave danger to the
security and welfare of the community can justify the infringement of religious freedom. If the government fails to
show the seriousness and immediacy of the threat, State intrusion is constitutionally unacceptable.232
Freedom of religion means more than just the freedom to believe. It also means the freedom to act or not to act
according to what one believes. And this freedom is violated when one is compelled to act against one's belief or is
prevented from acting according to one's belief.233
Apparently, in these cases, there is no immediate danger to the life or health of an individual in the perceived
scenario of the subject provisions. After all, a couple who plans the timing, number and spacing of the birth of their
children refers to a future event that is contingent on whether or not the mother decides to adopt or use the
information, product, method or supply given to her or whether she even decides to become pregnant at all. On the
other hand, the burden placed upon those who object to contraceptive use is immediate and occurs the moment a
patient seeks consultation on reproductive health matters.
Moreover, granting that a compelling interest exists to justify the infringement of the conscientious objector's religious
freedom, the respondents have failed to demonstrate "the gravest abuses, endangering paramount interests" which
could limit or override a person's fundamental right to religious freedom. Also, the respondents have not presented
any government effort exerted to show that the means it takes to achieve its legitimate state objective is the least
intrusive means.234 Other than the assertion that the act of referring would only be momentary, considering that the
act of referral by a conscientious objector is the very action being contested as violative of religious freedom, it
behooves the respondents to demonstrate that no other means can be undertaken by the State to achieve its
objective without violating the rights of the conscientious objector. The health concerns of women may still be
addressed by other practitioners who may perform reproductive health-related procedures with open willingness and
motivation. Suffice it to say, a person who is forced to perform an act in utter reluctance deserves the protection of
the Court as the last vanguard of constitutional freedoms.
At any rate, there are other secular steps already taken by the Legislature to ensure that the right to health is
protected. Considering other legislations as they stand now, R.A . No. 4 729 or the Contraceptive Act, R.A. No. 6365
or "The Population Act of the Philippines" and R.A. No. 9710, otherwise known as "The Magna Carta of Women,"
amply cater to the needs of women in relation to health services and programs. The pertinent provision of Magna
Carta on comprehensive health services and programs for women, in fact, reads:
Section 17. Women's Right to Health. - (a) Comprehensive Health Services. - The State shall, at all times, provide for
a comprehensive, culture-sensitive, and gender-responsive health services and programs covering all stages of a
woman's life cycle and which addresses the major causes of women's mortality and morbidity: Provided, That in the
provision for comprehensive health services, due respect shall be accorded to women's religious convictions, the
rights of the spouses to found a family in accordance with their religious convictions, and the demands of responsible
parenthood, and the right of women to protection from hazardous drugs, devices, interventions, and substances.
Access to the following services shall be ensured:
(1) Maternal care to include pre- and post-natal services to address pregnancy and infant health
and nutrition;
(2) Promotion of breastfeeding;
(3) Responsible, ethical, legal, safe, and effective methods of family planning;
(4) Family and State collaboration in youth sexuality education and health services without
prejudice to the primary right and duty of parents to educate their children;
(5) Prevention and management of reproductive tract infections, including sexually transmitted
diseases, HIV, and AIDS;
(6) Prevention and management of reproductive tract cancers like breast and cervical cancers,
and other gynecological conditions and disorders;
(7) Prevention of abortion and management of pregnancy-related complications;
(8) In cases of violence against women and children, women and children victims and survivors
shall be provided with comprehensive health services that include psychosocial, therapeutic,
medical, and legal interventions and assistance towards healing, recovery, and empowerment;
(9) Prevention and management of infertility and sexual dysfunction pursuant to ethical norms
and medical standards;
(10) Care of the elderly women beyond their child-bearing years; and
(11) Management, treatment, and intervention of mental health problems of women and girls. In
addition, healthy lifestyle activities are encouraged and promoted through programs and projects
as strategies in the prevention of diseases.
(b) Comprehensive Health Information and Education. - The State shall provide women in all sectors with
appropriate, timely, complete, and accurate information and education on all the above-stated aspects of women's
health in government education and training programs, with due regard to the following:
(1) The natural and primary right and duty of parents in the rearing of the youth and the
development of moral character and the right of children to be brought up in an atmosphere of
morality and rectitude for the enrichment and strengthening of character;
(2) The formation of a person's sexuality that affirms human dignity; and
(3) Ethical, legal, safe, and effective family planning methods including fertility awareness.
As an afterthought, Asst. Solicitor General Hilbay eventually replied that the compelling state interest was "Fifteen
maternal deaths per day, hundreds of thousands of unintended pregnancies, lives changed, x x x."235 He, however,
failed to substantiate this point by concrete facts and figures from reputable sources.
The undisputed fact, however, is that the World Health Organization reported that the Filipino maternal mortality rate
dropped to 48 percent from 1990 to 2008, 236 although there was still no RH Law at that time. Despite such
revelation, the proponents still insist that such number of maternal deaths constitute a compelling state interest.
Granting that there are still deficiencies and flaws in the delivery of social healthcare programs for Filipino women,
they could not be solved by a measure that puts an unwarrantable stranglehold on religious beliefs in exchange for
blind conformity.
Exception: Life Threatening Cases
All this notwithstanding, the Court properly recognizes a valid exception set forth in the law. While generally
healthcare service providers cannot be forced to render reproductive health care procedures if doing it would
contravene their religious beliefs, an exception must be made in life-threatening cases that require the performance
of emergency procedures. In these situations, the right to life of the mother should be given preference, considering
that a referral by a medical practitioner would amount to a denial of service, resulting to unnecessarily placing the life
of a mother in grave danger. Thus, during the oral arguments, Atty. Liban, representing CFC, manifested: "the forced
referral clause that we are objecting on grounds of violation of freedom of religion does not contemplate an
emergency."237
In a conflict situation between the life of the mother and the life of a child, the doctor is morally obliged always to try
to save both lives. If, however, it is impossible, the resulting death to one should not be deliberate. Atty. Noche
explained:
Principle of Double-Effect. - May we please remind the principal author of the RH Bill in the House of
Representatives of the principle of double-effect wherein intentional harm on the life of either the mother of the child
is never justified to bring about a "good" effect. In a conflict situation between the life of the child and the life of the
mother, the doctor is morally obliged always to try to save both lives. However, he can act in favor of one (not
necessarily the mother) when it is medically impossible to save both, provided that no direct harm is intended to the
other. If the above principles are observed, the loss of the child's life or the mother's life is not intentional and,
therefore, unavoidable. Hence, the doctor would not be guilty of abortion or murder. The mother is never pitted
against the child because both their lives are equally valuable.238
Accordingly, if it is necessary to save the life of a mother, procedures endangering the life of the child may be
resorted to even if is against the religious sentiments of the medical practitioner. As quoted above, whatever burden
imposed upon a medical practitioner in this case would have been more than justified considering the life he would
be able to save.
Family Planning Seminars
Anent the requirement imposed under Section 15239 as a condition for the issuance of a marriage license, the Court
finds the same to be a reasonable exercise of police power by the government. A cursory reading of the assailed
provision bares that the religious freedom of the petitioners is not at all violated. All the law requires is for would-be
spouses to attend a seminar on parenthood, family planning breastfeeding and infant nutrition. It does not even
mandate the type of family planning methods to be included in the seminar, whether they be natural or artificial. As
correctly noted by the OSG, those who receive any information during their attendance in the required seminars are
not compelled to accept the information given to them, are completely free to reject the information they find
unacceptable, and retain the freedom to decide on matters of family life without the intervention of the State.
Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof violates the provisions of the Constitution by
intruding into marital privacy and autonomy. It argues that it cultivates disunity and fosters animosity in the family
rather than promote its solidarity and total development.240
The Court cannot but agree.
The 1987 Constitution is replete with provisions strengthening the family as it is the basic social institution. In fact,
one article, Article XV, is devoted entirely to the family.
ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its
solidarity and actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the
State.
Section 3. The State shall defend:
The right of spouses to found a family in accordance with their religious convictions and the demands of responsible
parenthood;
The right of children to assistance, including proper care and nutrition, and special protection from all forms of
neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development;
The right of the family to a family living wage and income; and
The right of families or family assoc1at1ons to participate in the planning and implementation of policies and
programs that affect them.
In this case, the RH Law, in its not-so-hidden desire to control population growth, contains provisions which tend to
wreck the family as a solid social institution. It bars the husband and/or the father from participating in the decision
making process regarding their common future progeny. It likewise deprives the parents of their authority over their
minor daughter simply because she is already a parent or had suffered a miscarriage.
Section 23(a) (2) (i) of the RH Law states:
(a) Any health care service provider, whether public or private, who shall: ...
(2) refuse to perform legal and medically-safe reproductive health procedures on any person of legal age on the
ground of lack of consent or authorization of the following persons in the following instances:
(i) Spousal consent in case of married persons: provided, That in case of disagreement, the decision of the one
undergoing the procedures shall prevail. [Emphasis supplied]
4-The Family and the Right to Privacy
The Family and Spousal Consent
The following acts are prohibited:
The above provision refers to reproductive health procedures like tubal litigation and vasectomy which, by their very
nature, should require mutual consent and decision between the husband and the wife as they affect issues
intimately related to the founding of a family. Section 3, Art. XV of the Constitution espouses that the State shall
defend the "right of the spouses to found a family." One person cannot found a family. The right, therefore, is shared
by both spouses. In the same Section 3, their right "to participate in the planning and implementation of policies and
programs that affect them " is equally recognized.
The RH Law cannot be allowed to infringe upon this mutual decision-making. By giving absolute authority to the
spouse who would undergo a procedure, and barring the other spouse from participating in the decision would drive
a wedge between the husband and wife, possibly result in bitter animosity, and endanger the marriage and the
family, all for the sake of reducing the population. This would be a marked departure from the policy of the State to
protect marriage as an inviolable social institution.241
Decision-making involving a reproductive health procedure is a private matter which belongs to the couple, not just
one of them. Any decision they would reach would affect their future as a family because the size of the family or the
number of their children significantly matters. The decision whether or not to undergo the procedure belongs
exclusively to, and shared by, both spouses as one cohesive unit as they chart their own destiny. It is a
constitutionally guaranteed private right. Unless it prejudices the State, which has not shown any compelling interest,
the State should see to it that they chart their destiny together as one family.
As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No. 9710, otherwise known as the "Magna
Carta for Women," provides that women shall have equal rights in all matters relating to marriage and family
relations, including the joint decision on the number and spacing of their children. Indeed, responsible parenthood,
as Section 3(v) of the RH Law states, is a shared responsibility between parents. Section 23(a)(2)(i) of the RH Law
should not be allowed to betray the constitutional mandate to protect and strengthen the family by giving to only one
spouse the absolute authority to decide whether to undergo reproductive health procedure.242
The right to chart their own destiny together falls within the protected zone of marital privacy and such state
intervention would encroach into the zones of spousal privacy guaranteed by the Constitution. In our jurisdiction, the
right to privacy was first recognized in Marje v. Mutuc,243 where the Court, speaking through Chief Justice
Fernando, held that "the right to privacy as such is accorded recognition independently of its identification with
liberty; in itself, it is fully deserving of constitutional protection."244 Marje adopted the ruling of the US Supreme
Court in Griswold v. Connecticut,245 where Justice William O. Douglas wrote:
We deal with a right of privacy older than the Bill of Rights -older than our political parties, older than our school
system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being
sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral
loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior
decisions.
Ironically, Griswold invalidated a Connecticut statute which made the use of contraceptives a criminal offense on the
ground of its amounting to an unconstitutional invasion of the right to privacy of married persons. Nevertheless, it
recognized the zone of privacy rightfully enjoyed by couples. Justice Douglas in Grisworld wrote that "specific
guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them
life and substance. Various guarantees create zones of privacy."246
At any rate, in case of conflict between the couple, the courts will decide.
The Family and Parental Consent
Equally deplorable is the debarment of parental consent in cases where the minor, who will be undergoing a
procedure, is already a parent or has had a miscarriage. Section 7 of the RH law provides:
SEC. 7. Access to Family Planning. x x x.
No person shall be denied information and access to family planning services, whether natural or artificial: Provided,
That minors will not be allowed access to modern methods of family planning without written consent from their
parents or guardian/s except when the minor is already a parent or has had a miscarriage.
There can be no other interpretation of this provision except that when a minor is already a parent or has had a
miscarriage, the parents are excluded from the decision making process of the minor with regard to family planning.
Even if she is not yet emancipated, the parental authority is already cut off just because there is a need to tame
population growth.
It is precisely in such situations when a minor parent needs the comfort, care, advice, and guidance of her own
parents. The State cannot replace her natural mother and father when it comes to providing her needs and comfort.
To say that their consent is no longer relevant is clearly anti-family. It does not promote unity in the family. It is an
affront to the constitutional mandate to protect and strengthen the family as an inviolable social institution.
More alarmingly, it disregards and disobeys the constitutional mandate that "the natural and primary right and duty of
parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the
support of the Government."247 In this regard, Commissioner Bernas wrote:
The 1987 provision has added the adjective "primary" to modify the right of parents. It imports the assertion that the
right of parents is superior to that of the State.248 [Emphases supplied]
To insist on a rule that interferes with the right of parents to exercise parental control over their minor-child or the
right of the spouses to mutually decide on matters which very well affect the very purpose of marriage, that is, the
establishment of conjugal and family life, would result in the violation of one's privacy with respect to his family. It
would be dismissive of the unique and strongly-held Filipino tradition of maintaining close family ties and violative of
the recognition that the State affords couples entering into the special contract of marriage to as one unit in forming
the foundation of the family and society.
The State cannot, without a compelling state interest, take over the role of parents in the care and custody of a minor
child, whether or not the latter is already a parent or has had a miscarriage. Only a compelling state interest can
justify a state substitution of their parental authority.
First Exception: Access to Information
Whether with respect to the minor referred to under the exception provided in the second paragraph of Section 7 or
with respect to the consenting spouse under Section 23(a)(2)(i), a distinction must be made. There must be a
differentiation between access to information about family planning services, on one hand, and access to the
reproductive health procedures and modern family planning methods themselves, on the other. Insofar as access to
information is concerned, the Court finds no constitutional objection to the acquisition of information by the minor
referred to under the exception in the second paragraph of Section 7 that would enable her to take proper care of her
own body and that of her unborn child. After all, Section 12, Article II of the Constitution mandates the State to
protect both the life of the mother as that of the unborn child. Considering that information to enable a person to
make informed decisions is essential in the protection and maintenance of ones' health, access to such information
with respect to reproductive health must be allowed. In this situation, the fear that parents might be deprived of their
parental control is unfounded because they are not prohibited to exercise parental guidance and control over their
minor child and assist her in deciding whether to accept or reject the information received.
Second Exception: Life Threatening Cases
As in the case of the conscientious objector, an exception must be made in life-threatening cases that require the
performance of emergency procedures. In such cases, the life of the minor who has already suffered a miscarriage
and that of the spouse should not be put at grave risk simply for lack of consent. It should be emphasized that no
person should be denied the appropriate medical care urgently needed to preserve the primordial right, that is, the
right to life.
In this connection, the second sentence of Section 23(a)(2)(ii)249 should be struck down. By effectively limiting the
requirement of parental consent to "only in elective surgical procedures," it denies the parents their right of parental
authority in cases where what is involved are "non-surgical procedures." Save for the two exceptions discussed
above, and in the case of an abused child as provided in the first sentence of Section 23(a)(2)(ii), the parents should
not be deprived of their constitutional right of parental authority. To deny them of this right would be an affront to the
constitutional mandate to protect and strengthen the family.
5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof, mandating the teaching of Age-and
Development-Appropriate Reproductive Health Education under threat of fine and/or imprisonment violates the
principle of academic freedom . According to the petitioners, these provisions effectively force educational institutions
to teach reproductive health education even if they believe that the same is not suitable to be taught to their
students.250 Citing various studies conducted in the United States and statistical data gathered in the country, the
petitioners aver that the prevalence of contraceptives has led to an increase of out-of-wedlock births; divorce and
breakdown of families; the acceptance of abortion and euthanasia; the "feminization of poverty"; the aging of society;
and promotion of promiscuity among the youth.251
At this point, suffice it to state that any attack on the validity of Section 14 of the RH Law is premature because the
Department of Education, Culture and Sports has yet to formulate a curriculum on age-appropriate reproductive
health education. One can only speculate on the content, manner and medium of instruction that will be used to
educate the adolescents and whether they will contradict the religious beliefs of the petitioners and validate their
apprehensions. Thus, considering the premature nature of this particular issue, the Court declines to rule on its
constitutionality or validity.
At any rate, Section 12, Article II of the 1987 Constitution provides that the natural and primary right and duty of
parents in the rearing of the youth for civic efficiency and development of moral character shall receive the support of
the Government. Like the 1973 Constitution and the 1935 Constitution, the 1987 Constitution affirms the State
recognition of the invaluable role of parents in preparing the youth to become productive members of society.
Notably, it places more importance on the role of parents in the development of their children by recognizing that said
role shall be "primary," that is, that the right of parents in upbringing the youth is superior to that of the State.252
It is also the inherent right of the State to act as parens patriae to aid parents in the moral development of the youth.
Indeed, the Constitution makes mention of the importance of developing the youth and their important role in nation
building.253 Considering that Section 14 provides not only for the age-appropriate-reproductive health education, but
also for values formation; the development of knowledge and skills in self-protection against discrimination; sexual
abuse and violence against women and children and other forms of gender based violence and teen pregnancy;
physical, social and emotional changes in adolescents; women's rights and children's rights; responsible teenage
behavior; gender and development; and responsible parenthood, and that Rule 10, Section 11.01 of the RH-IRR and
Section 4(t) of the RH Law itself provides for the teaching of responsible teenage behavior, gender sensitivity and
physical and emotional changes among adolescents - the Court finds that the legal mandate provided under the
assailed provision supplements, rather than supplants, the rights and duties of the parents in the moral development
of their children.
Furthermore, as Section 14 also mandates that the mandatory reproductive health education program shall be
developed in conjunction with parent-teacher-community associations, school officials and other interest groups, it
could very well be said that it will be in line with the religious beliefs of the petitioners. By imposing such a condition,
it becomes apparent that the petitioners' contention that Section 14 violates Article XV, Section 3(1) of the
Constitution is without merit.254
While the Court notes the possibility that educators might raise their objection to their participation in the reproductive
health education program provided under Section 14 of the RH Law on the ground that the same violates their
religious beliefs, the Court reserves its judgment should an actual case be filed before it.
6 - Due Process
The petitioners contend that the RH Law suffers from vagueness and, thus violates the due process clause of the
Constitution. According to them, Section 23 (a)(l) mentions a "private health service provider" among those who may
be held punishable but does not define who is a "private health care service provider." They argue that confusion
further results since Section 7 only makes reference to a "private health care institution."
The petitioners also point out that Section 7 of the assailed legislation exempts hospitals operated by religious
groups from rendering reproductive health service and modern family planning methods. It is unclear, however, if
these institutions are also exempt from giving reproductive health information under Section 23(a)(l), or from
rendering reproductive health procedures under Section 23(a)(2).
Finally, it is averred that the RH Law punishes the withholding, restricting and providing of incorrect information, but
at the same time fails to define "incorrect information."
The arguments fail to persuade.
A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common
intelligence must necessarily guess its meaning and differ as to its application. It is repugnant to the Constitution in
two respects: (1) it violates due process for failure to accord persons, especially the parties targeted by it, fair notice
of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the Government muscle.255 Moreover, in determining whether the words used in a
statute are vague, words must not only be taken in accordance with their plain meaning alone, but also in relation to
other parts of the statute. It is a rule that every part of the statute must be interpreted with reference to the context,
that is, every part of it must be construed together with the other parts and kept subservient to the general intent of
the whole enactment.256
As correctly noted by the OSG, in determining the definition of "private health care service provider," reference must
be made to Section 4(n) of the RH Law which defines a "public health service provider," viz:
(n) Public health care service provider refers to: (1) public health care institution, which is duly licensed and
accredited and devoted primarily to the maintenance and operation of facilities for health promotion, disease
prevention, diagnosis, treatment and care of individuals suffering from illness, disease, injury, disability or deformity,
or in need of obstetrical or other medical and nursing care; (2) public health care professional, who is a doctor of
medicine, a nurse or a midvvife; (3) public health worker engaged in the delivery of health care services; or (4)
barangay health worker who has undergone training programs under any accredited government and NGO and who
voluntarily renders primarily health care services in the community after having been accredited to function as such
by the local health board in accordance with the guidelines promulgated by the Department of Health (DOH) .
Further, the use of the term "private health care institution" in Section 7 of the law, instead of "private health care
service provider," should not be a cause of confusion for the obvious reason that they are used synonymously.
The Court need not belabor the issue of whether the right to be exempt from being obligated to render reproductive
health service and modem family planning methods, includes exemption from being obligated to give reproductive
health information and to render reproductive health procedures. Clearly, subject to the qualifications and exemptions
earlier discussed, the right to be exempt from being obligated to render reproductive health service and modem
family planning methods, necessarily includes exemption from being obligated to give reproductive health
information and to render reproductive health procedures. The terms "service" and "methods" are broad enough to
include the providing of information and the rendering of medical procedures.
The same can be said with respect to the contention that the RH Law punishes health care service providers who
intentionally withhold, restrict and provide incorrect information regarding reproductive health programs and services.
For ready reference, the assailed provision is hereby quoted as follows:
SEC. 23. Prohibited Acts. - The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall:
(1) Knowingly withhold information or restrict the dissemination thereof, and/ or intentionally provide incorrect
information regarding programs and services on reproductive health including the right to informed choice and
access to a full range of legal, medically-safe, non-abortifacient and effective family planning methods;
From its plain meaning, the word "incorrect" here denotes failing to agree with a copy or model or with established
rules; inaccurate, faulty; failing to agree with the requirements of duty, morality or propriety; and failing to coincide
with the truth. 257 On the other hand, the word "knowingly" means with awareness or deliberateness that is
intentional.258 Used together in relation to Section 23(a)(l), they connote a sense of malice and ill motive to mislead
or misrepresent the public as to the nature and effect of programs and services on reproductive health. Public health
and safety demand that health care service providers give their honest and correct medical information in
accordance with what is acceptable in medical practice. While health care service providers are not barred from
expressing their own personal opinions regarding the programs and services on reproductive health, their right must
be tempered with the need to provide public health and safety. The public deserves no less.
7-Egual Protection
The petitioners also claim that the RH Law violates the equal protection clause under the Constitution as it
discriminates against the poor because it makes them the primary target of the government program that promotes
contraceptive use . They argue that, rather than promoting reproductive health among the poor, the RH Law
introduces contraceptives that would effectively reduce the number of the poor. Their bases are the various
provisions in the RH Law dealing with the poor, especially those mentioned in the guiding principles259 and
definition of terms260 of the law.
They add that the exclusion of private educational institutions from the mandatory reproductive health education
program imposed by the RH Law renders it unconstitutional.
In Biraogo v. Philippine Truth Commission,261 the Court had the occasion to expound on the concept of equal
protection. Thus:
One of the basic principles on which this government was founded is that of the equality of right which is embodied in
Section 1, Article III of the 1987 Constitution. The equal protection of the laws is embraced in the concept of due
process, as every unfair discrimination offends the requirements of justice and fair play. It has been embodied in a
separate clause, however, to provide for a more specific guaranty against any form of undue favoritism or hostility
from the government. Arbitrariness in general may be challenged on the basis of the due process clause. But if the
particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the
equal protection clause.
"According to a long line of decisions, equal protection simply requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and responsibilities imposed." It "requires public bodies and inst
itutions to treat similarly situated individuals in a similar manner." "The purpose of the equal protection clause is to
secure every person within a state's jurisdiction against intentional and arbitrary discrimination, whether occasioned
by the express terms of a statue or by its improper execution through the state's duly constituted authorities." "In
other words, the concept of equal justice under the law requires the state to govern impartially, and it may not draw
distinctions between individuals solely on differences that are irrelevant to a legitimate governmental objective."
The equal protection clause is aimed at all official state actions, not just those of the legislature. Its inhibitions cover
all the departments of the government including the political and executive departments, and extend to all actions of
a state denying equal protection of the laws, through whatever agency or whatever guise is taken.
It, however, does not require the universal application of the laws to all persons or things without distinction. What it
simply requires is equality among equals as determined according to a valid classification. Indeed, the equal
protection clause permits classification. Such classification, however, to be valid must pass the test of
reasonableness. The test has four requisites: (1) The classification rests on substantial distinctions; (2) It is germane
to the purpose of the law; (3) It is not limited to existing conditions only; and (4) It applies equally to all members of
the same class. "Superficial differences do not make for a valid classification."
For a classification to meet the requirements of constitutionality, it must include or embrace all persons who naturally
belong to the class. "The classification will be regarded as invalid if all the members of the class are not similarly
treated, both as to rights conferred and obligations imposed. It is not necessary that the classification be made with
absolute symmetry, in the sense that the members of the class should possess the same characteristics in equal
degree. Substantial similarity will suffice; and as long as this is achieved, all those covered by the classification are to
be treated equally. The mere fact that an individual belonging to a class differs from the other members, as long as
that class is substantially distinguishable from all others, does not justify the non-application of the law to him."
The classification must not be based on existing circumstances only, or so constituted as to preclude addition to the
number included in the class. It must be of such a nature as to embrace all those who may thereafter be in similar
circumstances and conditions. It must not leave out or "underinclude" those that should otherwise fall into a certain
classification. [Emphases supplied; citations excluded]
To provide that the poor are to be given priority in the government's reproductive health care program is not a
violation of the equal protection clause. In fact, it is pursuant to Section 11, Article XIII of the Constitution which
recognizes the distinct necessity to address the needs of the underprivileged by providing that they be given priority
in addressing the health development of the people. Thus:
Section 11. The State shall adopt an integrated and comprehensive approach to health development which shall
endeavor to make essential goods, health and other social services available to all the people at affordable cost.
There shall be priority for the needs of the underprivileged, sick, elderly, disabled, women, and children. The State
shall endeavor to provide free medical care to paupers.
It should be noted that Section 7 of the RH Law prioritizes poor and marginalized couples who are suffering from
fertility issues and desire to have children. There is, therefore, no merit to the contention that the RH Law only seeks
to target the poor to reduce their number. While the RH Law admits the use of contraceptives, it does not, as
elucidated above, sanction abortion. As Section 3(1) explains, the "promotion and/or stabilization of the population
growth rate is incidental to the advancement of reproductive health."
Moreover, the RH Law does not prescribe the number of children a couple may have and does not impose conditions
upon couples who intend to have children. While the petitioners surmise that the assailed law seeks to charge
couples with the duty to have children only if they would raise them in a truly humane way, a deeper look into its
provisions shows that what the law seeks to do is to simply provide priority to the poor in the implementation of
government programs to promote basic reproductive health care.
With respect to the exclusion of private educational institutions from the mandatory reproductive health education
program under Section 14, suffice it to state that the mere fact that the children of those who are less fortunate
attend public educational institutions does not amount to substantial distinction sufficient to annul the assailed
provision. On the other hand, substantial distinction rests between public educational institutions and private
educational institutions, particularly because there is a need to recognize the academic freedom of private
educational institutions especially with respect to religious instruction and to consider their sensitivity towards the
teaching of reproductive health education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is constitutionally infirm as it violates the constitutional prohibition against
involuntary servitude. They posit that Section 17 of the assailed legislation requiring private and non-government
health care service providers to render forty-eight (48) hours of pro bono reproductive health services, actually
amounts to involuntary servitude because it requires medical practitioners to perform acts against their will.262
The OSG counters that the rendition of pro bono services envisioned in Section 17 can hardly be considered as
forced labor analogous to slavery, as reproductive health care service providers have the discretion as to the manner
and time of giving pro bono services. Moreover, the OSG points out that the imposition is within the powers of the
government, the accreditation of medical practitioners with PhilHealth being a privilege and not a right.
The point of the OSG is well-taken.
It should first be mentioned that the practice of medicine is undeniably imbued with public interest that it is both a
power and a duty of the State to control and regulate it in order to protect and promote the public welfare. Like the
legal profession, the practice of medicine is not a right but a privileged burdened with conditions as it directly involves
the very lives of the people. A fortiori, this power includes the power of Congress263 to prescribe the qualifications
for the practice of professions or trades which affect the public welfare, the public health, the public morals, and the
public safety; and to regulate or control such professions or trades, even to the point of revoking such right
altogether.264
Moreover, as some petitioners put it, the notion of involuntary servitude connotes the presence of force, threats,
intimidation or other similar means of coercion and compulsion.265 A reading of the assailed provision, however,
reveals that it only encourages private and non- government reproductive healthcare service providers to render pro
bono service. Other than non-accreditation with PhilHealth, no penalty is imposed should they choose to do
otherwise. Private and non-government reproductive healthcare service providers also enjoy the liberty to choose
which kind of health service they wish to provide, when, where and how to provide it or whether to provide it all.
Clearly, therefore, no compulsion, force or threat is made upon them to render pro bono service against their will.
While the rendering of such service was made a prerequisite to accreditation with PhilHealth, the Court does not
consider the same to be an unreasonable burden, but rather, a necessary incentive imposed by Congress in the
furtherance of a perceived legitimate state interest.
Consistent with what the Court had earlier discussed, however, it should be emphasized that conscientious objectors
are exempt from this provision as long as their religious beliefs and convictions do not allow them to render
reproductive health service, pro bona or otherwise.
9-Delegation of Authority to the FDA
x x x.
The petitioners likewise question the delegation by Congress to the FDA of the power to determine whether or not a
supply or product is to be included in the Essential Drugs List (EDL).266
As can be gleaned from the above, the functions, powers and duties of the FDA are specific to enable the agency to
carry out the mandates of the law. Being the country's premiere and sole agency that ensures the safety of food and
medicines available to the public, the FDA was equipped with the necessary powers and functions to make it
effective. Pursuant to the principle of necessary implication, the mandate by Congress to the FDA to ensure public
health and safety by permitting only food and medicines that are safe includes "service" and "methods." From the
declared policy of the RH Law, it is clear that Congress intended that the public be given only those medicines that
are proven medically safe, legal, non-abortifacient, and effective in accordance with scientific and evidence-based
medical research standards. The philosophy behind the permitted delegation was explained in Echagaray v.
Secretary of Justice,267 as follows:
The Court finds nothing wrong with the delegation. The FDA does not only have the power but also the competency
to evaluate, register and cover health services and methods. It is the only government entity empowered to render
such services and highly proficient to do so. It should be understood that health services and methods fall under the
gamut of terms that are associated with what is ordinarily understood as "health products."
In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No. 9711 reads:
SEC. 4. To carry out the provisions of this Act, there is hereby created an office to be called the Food and Drug
Administration (FDA) in the Department of Health (DOH). Said Administration shall be under the Office of the
Secretary and shall have the following functions, powers and duties:
"(a) To administer the effective implementation of this Act and of the rules and regulations issued pursuant
to the same;
"(b) To assume primary jurisdiction in the collection of samples of health products;
"(c) To analyze and inspect health products in connection with the implementation of this Act;
"(d) To establish analytical data to serve as basis for the preparation of health products standards, and to
recommend standards of identity, purity, safety, efficacy, quality and fill of container;
"(e) To issue certificates of compliance with technical requirements to serve as basis for the issuance of
appropriate authorization and spot-check for compliance with regulations regarding operation of
manufacturers, importers, exporters, distributors, wholesalers, drug outlets, and other establishments and
facilities of health products, as determined by the FDA;
"x x x
"(h) To conduct appropriate tests on all applicable health products prior to the issuance of appropriate
authorizations to ensure safety, efficacy, purity, and quality;
"(i) To require all manufacturers, traders, distributors, importers, exporters, wholesalers, retailers,
consumers, and non-consumer users of health products to report to the FDA any incident that reasonably
indicates that said product has caused or contributed to the death, serious illness or serious injury to a
consumer, a patient, or any person;
"(j) To issue cease and desist orders motu propio or upon verified complaint for health products, whether or
not registered with the FDA Provided, That for registered health products, the cease and desist order is
valid for thirty (30) days and may be extended for sixty ( 60) days only after due process has been
observed;
"(k) After due process, to order the ban, recall, and/or withdrawal of any health product found to have
caused death, serious illness or serious injury to a consumer or patient, or is found to be imminently
injurious, unsafe, dangerous, or grossly deceptive, and to require all concerned to implement the risk
management plan which is a requirement for the issuance of the appropriate authorization;
The reason is the increasing complexity of the task of the government and the growing inability of the legislature to
cope directly with the many problems demanding its attention. The growth of society has ramified its activities and
created peculiar and sophisticated problems that the legislature cannot be expected reasonably to comprehend.
Specialization even in legislation has become necessary. To many of the problems attendant upon present day
undertakings, the legislature may not have the competence, let alone the interest and the time, to provide the
required direct and efficacious, not to say specific solutions.
10- Autonomy of Local Governments and the Autonomous Region
of Muslim Mindanao (ARMM)
As for the autonomy of local governments, the petitioners claim that the RH Law infringes upon the powers devolved
to local government units (LGUs) under Section 17 of the Local Government Code. Said Section 17 vested upon the
LGUs the duties and functions pertaining to the delivery of basic services and facilities, as follows:
SECTION 17. Basic Services and Facilities.
(a) Local government units shall endeavor to be self-reliant and shall continue exercising the powers and
discharging the duties and functions currently vested upon them. They shall also discharge the functions
and responsibilities of national agencies and offices devolved to them pursuant to this Code. Local
government units shall likewise exercise such other powers and discharge such other functions and
responsibilities as are necessary, appropriate, or incidental to efficient and effective provision of the basic
services and facilities enumerated herein.
(b) Such basic services and facilities include, but are not limited to, x x x.
While the aforementioned provision charges the LGUs to take on the functions and responsibilities that
have already been devolved upon them from the national agencies on the aspect of providing for basic
services and facilities in their respective jurisdictions, paragraph (c) of the same provision provides a
categorical exception of cases involving nationally-funded projects, facilities, programs and
services.268 Thus:
(c) Notwithstanding the provisions of subsection (b) hereof, public works and infrastructure projects and
other facilities, programs and services funded by the National Government under the annual General
Appropriations Act, other special laws, pertinent executive orders, and those wholly or partially funded from
foreign sources, are not covered under this Section, except in those cases where the local government
unit concerned is duly designated as the implementing agency for such projects, facilities, programs and
services. [Emphases supplied]
The essence of this express reservation of power by the national government is that, unless an LGU is particularly
designated as the implementing agency, it has no power over a program for which funding has been provided by the
national government under the annual general appropriations act, even if the program involves the delivery of basic
services within the jurisdiction of the LGU.269 A complete relinquishment of central government powers on the
matter of providing basic facilities and services cannot be implied as the Local Government Code itself weighs
against it.270
In this case, a reading of the RH Law clearly shows that whether it pertains to the establishment of health care
facilities,271 the hiring of skilled health professionals,272 or the training of barangay health workers,273 it will be the
national government that will provide for the funding of its implementation. Local autonomy is not absolute. The
national government still has the say when it comes to national priority programs which the local government is
called upon to implement like the RH Law.
Moreover, from the use of the word "endeavor," the LG Us are merely encouraged to provide these services. There is
nothing in the wording of the law which can be construed as making the availability of these services mandatory for
the LGUs. For said reason, it cannot be said that the RH Law amounts to an undue encroachment by the national
government upon the autonomy enjoyed by the local governments.
The ARMM
The fact that the RH Law does not intrude in the autonomy of local governments can be equally applied to the
ARMM. The RH Law does not infringe upon its autonomy. Moreover, Article III, Sections 6, 10 and 11 of R.A. No.
9054, or the organic act of the ARMM, alluded to by petitioner Tillah to justify the exemption of the operation of the
RH Law in the autonomous region, refer to the policy statements for the guidance of the regional government. These
provisions relied upon by the petitioners simply delineate the powers that may be exercised by the regional
government, which can, in no manner, be characterized as an abdication by the State of its power to enact legislation
that would benefit the general welfare. After all, despite the veritable autonomy granted the ARMM, the Constitution
and the supporting jurisprudence, as they now stand, reject the notion of imperium et imperio in the relationship
between the national and the regional governments.274 Except for the express and implied limitations imposed on it
by the Constitution, Congress cannot be restricted to exercise its inherent and plenary power to legislate on all
subjects which extends to all matters of general concern or common interest.275
In general, the Court does not find the RH Law as unconstitutional insofar as it seeks to provide access to medicallysafe, non-abortifacient, effective, legal, affordable, and quality reproductive healthcare services, methods, devices,
and supplies. As earlier pointed out, however, the religious freedom of some sectors of society cannot be trampled
upon in pursuit of what the law hopes to achieve. After all, the Constitutional safeguard to religious freedom is a
recognition that man stands accountable to an authority higher than the State.
In conformity with the principle of separation of Church and State, one religious group cannot be allowed to impose
its beliefs on the rest of the society. Philippine modem society leaves enough room for diversity and pluralism. As
such, everyone should be tolerant and open-minded so that peace and harmony may continue to reign as we exist
alongside each other.
As healthful as the intention of the RH Law may be, the idea does not escape the Court that what it seeks to address
is the problem of rising poverty and unemployment in the country. Let it be said that the cause of these perennial
issues is not the large population but the unequal distribution of wealth. Even if population growth is controlled,
poverty will remain as long as the country's wealth remains in the hands of the very few.
At any rate, population control may not be beneficial for the country in the long run. The European and Asian
countries, which embarked on such a program generations ago , are now burdened with ageing populations. The
number of their young workers is dwindling with adverse effects on their economy. These young workers represent a
significant human capital which could have helped them invigorate, innovate and fuel their economy. These countries
are now trying to reverse their programs, but they are still struggling. For one, Singapore, even with incentives, is
failing.
And in this country, the economy is being propped up by remittances from our Overseas Filipino Workers. This is
because we have an ample supply of young able-bodied workers. What would happen if the country would be
weighed down by an ageing population and the fewer younger generation would not be able to support them? This
would be the situation when our total fertility rate would go down below the replacement level of two (2) children per
woman.280
Indeed, at the present, the country has a population problem, but the State should not use coercive measures (like
the penal provisions of the RH Law against conscientious objectors) to solve it. Nonetheless, the policy of the Court
is non-interference in the wisdom of a law.
11 - Natural Law
With respect to the argument that the RH Law violates natural law,276 suffice it to say that the Court does not duly
recognize it as a legal basis for upholding or invalidating a law. Our only guidepost is the Constitution. While every
law enacted by man emanated from what is perceived as natural law, the Court is not obliged to see if a statute,
executive issuance or ordinance is in conformity to it. To begin with, it is not enacted by an acceptable legitimate
body. Moreover, natural laws are mere thoughts and notions on inherent rights espoused by theorists, philosophers
and theologists. The jurists of the philosophical school are interested in the law as an abstraction, rather than in the
actual law of the past or present.277 Unless, a natural right has been transformed into a written law, it cannot serve
as a basis to strike down a law. In Republic v. Sandiganbayan,278 the very case cited by the petitioners, it was
explained that the Court is not duty-bound to examine every law or action and whether it conforms with both the
Constitution and natural law. Rather, natural law is to be used sparingly only in the most peculiar of circumstances
involving rights inherent to man where no law is applicable.279
At any rate, as earlier expounded, the RH Law does not sanction the taking away of life. It does not allow abortion in
any shape or form. It only seeks to enhance the population control program of the government by providing
information and making non-abortifacient contraceptives more readily available to the public, especially to the poor.
Facts and Fallacies
and the Wisdom of the Law
x x x. But this Court cannot go beyond what the legislature has laid down. Its duty is to say what the law is as
enacted by the lawmaking body. That is not the same as saying what the law should be or what is the correct rule in
a given set of circumstances. It is not the province of the judiciary to look into the wisdom of the law nor to question
the policies adopted by the legislative branch. Nor is it the business of this Tribunal to remedy every unjust situation
that may arise from the application of a particular law. It is for the legislature to enact remedial legislation if that would
be necessary in the premises. But as always, with apt judicial caution and cold neutrality, the Court must carry out
the delicate function of interpreting the law, guided by the Constitution and existing legislation and mindful of settled
jurisprudence. The Court's function is therefore limited, and accordingly, must confine itself to the judicial task of
saying what the law is, as enacted by the lawmaking body.281
Be that as it may, it bears reiterating that the RH Law is a mere compilation and enhancement of the prior existing
contraceptive and reproductive health laws, but with coercive measures. Even if the Court decrees the RH Law as
entirely unconstitutional, there will still be the Population Act (R.A. No. 6365), the Contraceptive Act (R.A. No. 4729)
and the reproductive health for women or The Magna Carta of Women (R.A. No. 9710), sans the coercive provisions
of the assailed legislation. All the same, the principle of "no-abortion" and "non-coercion" in the adoption of any family
planning method should be maintained.
WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the Court declares R.A. No. 10354 as NOT
UNCONSTITUTIONAL except with respect to the following provisions which are declared UNCONSTITUTIONAL:
1) Section 7 and the corresponding provision in the RH-IRR insofar as they: a) require private health
facilities and non-maternity specialty hospitals and hospitals owned and operated by a religious group to
refer patients, not in an emergency or life-threatening case, as defined under Republic Act No. 8344, to
another health facility which is conveniently accessible; and b) allow minor-parents or minors who have
suffered a miscarriage access to modem methods of family planning without written consent from their
parents or guardian/s;
This is to resolve the Petition for Review on Certiorari, under Rule 45 of the Rules of Court, dated November 5, 2007,
of petitioner Lito Corpuz (petitioner), seeking to reverse and set aside the Decision1 dated March 22, 2007 and
Resolution2 dated September 5, 2007 of the Court of Appeals (CA), which affirmed with modification the
Decision3 dated July 30, 2004 of the Regional Trial Court (RTC), Branch 46, San Fernando City, finding the
petitioner guilty beyond reasonable doubt of the crime of Estafa under Article 315, paragraph (1), sub-paragraph (b)
of the Revised Penal Code.
2) Section 23(a)(l) and the corresponding provision in the RH-IRR, particularly Section 5 .24 thereof,
insofar as they punish any healthcare service provider who fails and or refuses to disseminate information
regarding programs and services on reproductive health regardless of his or her religious beliefs.
The antecedent facts follow.
3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they allow a married
individual, not in an emergency or life-threatening case, as defined under Republic Act No. 8344, to
undergo reproductive health procedures without the consent of the spouse;
4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they limit the requirement
of parental consent only to elective surgical procedures.
5) Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly Section 5.24 thereof,
insofar as they punish any healthcare service provider who fails and/or refuses to refer a patient not in an
emergency or life-threatening case, as defined under Republic Act No. 8344, to another health care
service provider within the same facility or one which is conveniently accessible regardless of his or her
religious beliefs;
6) Section 23(b) and the corresponding provision in the RH-IRR, particularly Section 5 .24 thereof, insofar
as they punish any public officer who refuses to support reproductive health programs or shall do any act
that hinders the full implementation of a reproductive health program, regardless of his or her religious
beliefs;
7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the rendering of pro bona
reproductive health service in so far as they affect the conscientious objector in securing PhilHealth
accreditation; and
8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the qualifier "primarily" in defining
abortifacients and contraceptives, as they are ultra vires and, therefore, null and void for contravening
Section 4(a) of the RH Law and violating Section 12, Article II of the Constitution.
The Status Quo Ante Order issued by the Court on March 19, 2013 as extended by its Order, dated July 16, 2013 , is
hereby LIFTED, insofar as the provisions of R.A. No. 10354 which have been herein declared as constitutional.
April 29, 2014
That on or about the fifth (5th) day of July 1991, in the City of Olongapo, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, after having received from one Danilo Tangcoy, one (1) men's diamond
ring, 18k, worth P45,000.00; one (1) three-baht men's bracelet, 22k, worth P25,000.00; one (1) two-baht ladies'
bracelet, 22k, worth P12,000.00, or in the total amount of Ninety-Eight Thousand Pesos (P98,000.00), Philippine
currency, under expressed obligation on the part of said accused to remit the proceeds of the sale of the said items
or to return the same, if not sold, said accused, once in possession of the said items, with intent to defraud, and with
unfaithfulness and abuse of confidence, and far from complying with his aforestated obligation, did then and there
wilfully, unlawfully and feloniously misappropriate, misapply and convert to his own personal use and benefit the
aforesaid jewelries (sic) or the proceeds of the sale thereof, and despite repeated demands, the accused failed and
refused to return the said items or to remit the amount of Ninety- Eight Thousand Pesos (P98,000.00), Philippine
currency, to the damage and prejudice of said Danilo Tangcoy in the aforementioned amount.
CONTRARY TO LAW.
The prosecution, to prove the above-stated facts, presented the lone testimony of Danilo Tangcoy. On the other
hand, the defense presented the lone testimony of petitioner, which can be summarized, as follows:
LITO CORPUZ, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
Thus, an Information was filed against petitioner for the crime of estafa, which reads as follows:
On January 28, 1992, petitioner, with the assistance of his counsel, entered a plea of not guilty. Thereafter, trial on
the merits ensued.
SO ORDERED.
G.R. No. 180016
Private complainant Danilo Tangcoy and petitioner met at the Admiral Royale Casino in Olongapo City sometime in
1990. Private complainant was then engaged in the business of lending money to casino players and, upon hearing
that the former had some pieces of jewelry for sale, petitioner approached him on May 2, 1991 at the same casino
and offered to sell the said pieces of jewelry on commission basis. Private complainant agreed, and as a
consequence, he turned over to petitioner the following items: an 18k diamond ring for men; a woman's bracelet; one
(1) men's necklace and another men's bracelet, with an aggregate value of P98,000.00, as evidenced by a receipt of
even date. They both agreed that petitioner shall remit the proceeds of the sale, and/or, if unsold, to return the same
items, within a period of 60 days. The period expired without petitioner remitting the proceeds of the sale or returning
the pieces of jewelry. When private complainant was able to meet petitioner, the latter promised the former that he
will pay the value of the said items entrusted to him, but to no avail.
Petitioner and private complainant were collecting agents of Antonio Balajadia, who is engaged in the financing
business of extending loans to Base employees. For every collection made, they earn a commission. Petitioner
denied having transacted any business with private complainant.
However, he admitted obtaining a loan from Balajadia sometime in 1989 for which he was made to sign a blank
receipt. He claimed that the same receipt was then dated May 2, 1991 and used as evidence against him for the
supposed agreement to sell the subject pieces of jewelry, which he did not even see.
After trial, the RTC found petitioner guilty beyond reasonable doubt of the crime charged in the Information. The
dispositive portion of the decision states:
WHEREFORE, finding accused LITO CORPUZ GUILTY beyond reasonable doubt of the felony of Estafa under
Article 315, paragraph one (1), subparagraph (b) of the Revised Penal Code;
there being no offsetting generic aggravating nor ordinary mitigating circumstance/s to vary the penalty imposable;
accordingly, the accused is hereby sentenced to suffer the penalty of deprivation of liberty consisting of an
imprisonment under the Indeterminate Sentence Law of FOUR (4) YEARS AND TWO (2) MONTHS of Prision
Correccional in its medium period AS MINIMUM, to FOURTEEN (14) YEARS AND EIGHT (8) MONTHS of Reclusion
Temporal in its minimum period AS MAXIMUM; to indemnify private complainant Danilo Tangcoy the amount
of P98,000.00 as actual damages, and to pay the costs of suit.
SO ORDERED.
The case was elevated to the CA, however, the latter denied the appeal of petitioner and affirmed the decision of the
RTC, thus:
WHEREFORE, the instant appeal is DENIED. The assailed Judgment dated July 30, 2004 of the RTC of San
Fernando City (P), Branch 46, is hereby AFFIRMED with MODIFICATION on the imposable prison term, such that
accused-appellant shall suffer the indeterminate penalty of 4 years and 2 months of prision correccional, as
minimum, to 8 years of prision mayor, as maximum, plus 1 year for each additional P10,000.00, or a total of 7 years.
The rest of the decision stands.
SO ORDERED.
Petitioner, after the CA denied his motion for reconsideration, filed with this Court the present petition stating the
following grounds:
A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING THE ADMISSION AND APPRECIATION BY
THE LOWER COURT OF PROSECUTION EVIDENCE, INCLUDING ITS EXHIBITS, WHICH ARE MERE MACHINE
COPIES, AS THIS VIOLATES THE BEST EVIDENCE RULE;
B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING THAT THE
CRIMINAL INFORMATION FOR ESTAFA WAS NOT FATALLY DEFECTIVE ALTHOUGH THE SAME DID NOT
CHARGE THE OFFENSE UNDER ARTICLE 315 (1) (B) OF THE REVISED PENAL CODE IN THAT 1. THE INFORMATION DID NOT FIX A PERIOD WITHIN WHICH THE SUBJECT [PIECES OF] JEWELRY
SHOULD BE RETURNED, IF UNSOLD, OR THE MONEY TO BE REMITTED, IF SOLD;
2. THE DATE OF THE OCCURRENCE OF THE CRIME ALLEGED IN THE INFORMATION AS OF 05
JULY 1991 WAS MATERIALLY DIFFERENT FROM THE ONE TESTIFIED TO BY THE PRIVATE
COMPLAINANT WHICH WAS 02 MAY 1991;
C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING THAT
DEMAND TO RETURN THE SUBJECT [PIECES OF] JEWELRY, IF UNSOLD, OR REMIT THE PROCEEDS, IF
SOLD AN ELEMENT OF THE OFFENSE WAS PROVED;
D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S FINDING THAT THE
PROSECUTION'S CASE WAS PROVEN BEYOND REASONABLE DOUBT ALTHOUGH 1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2) VERSIONS OF THE INCIDENT;
2. THE VERSION OF THE PETITIONER ACCUSED IS MORE STRAIGHTFORWARD AND LOGICAL,
CONSISTENT WITH HUMAN EXPERIENCE;
3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND APPLIED TO THIS CASE;
4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST THE STATE.
In its Comment dated May 5, 2008, the Office of the Solicitor General (OSG) stated the following counter-arguments:
The exhibits were properly admitted inasmuch as petitioner failed to object to their admissibility.
The information was not defective inasmuch as it sufficiently established the designation of the offense and the acts
complained of.
The prosecution sufficiently established all the elements of the crime charged.
This Court finds the present petition devoid of any merit.
The factual findings of the appellate court generally are conclusive, and carry even more weight when said court
affirms the findings of the trial court, absent any showing that the findings are totally devoid of support in the records,
or that they are so glaringly erroneous as to constitute grave abuse of discretion.4 Petitioner is of the opinion that the
CA erred in affirming the factual findings of the trial court. He now comes to this Court raising both procedural and
substantive issues.
According to petitioner, the CA erred in affirming the ruling of the trial court, admitting in evidence a receipt dated
May 2, 1991 marked as Exhibit "A" and its submarkings, although the same was merely a photocopy, thus, violating
the best evidence rule. However, the records show that petitioner never objected to the admissibility of the said
evidence at the time it was identified, marked and testified upon in court by private complainant. The CA also
correctly pointed out that petitioner also failed to raise an objection in his Comment to the prosecution's formal offer
of evidence and even admitted having signed the said receipt. The established doctrine is that when a party failed to
interpose a timely objection to evidence at the time they were offered in evidence, such objection shall be considered
as waived.5
Another procedural issue raised is, as claimed by petitioner, the formally defective Information filed against him. He
contends that the Information does not contain the period when the pieces of jewelry were supposed to be returned
and that the date when the crime occurred was different from the one testified to by private complainant. This
argument is untenable. The CA did not err in finding that the Information was substantially complete and in reiterating
that objections as to the matters of form and substance in the Information cannot be made for the first time on
appeal. It is true that the gravamen of the crime of estafa under Article 315, paragraph 1, subparagraph (b) of the
RPC is the appropriation or conversion of money or property received to the prejudice of the owner6 and that the
time of occurrence is not a material ingredient of the crime, hence, the exclusion of the period and the wrong date of
the occurrence of the crime, as reflected in the Information, do not make the latter fatally defective. The CA ruled:
x x x An information is legally viable as long as it distinctly states the statutory designation of the offense and the acts
or omissions constitutive thereof. Then Section 6, Rule 110 of the Rules of Court provides that a complaint or
information is sufficient if it states the name of the accused;
the designation of the offense by the statute; the acts or omissions complained of as constituting the offense; the
name of the offended party; the approximate time of the commission of the offense, and the place wherein the
offense was committed. In the case at bar, a reading of the subject Information shows compliance with the foregoing
rule. That the time of the commission of the offense was stated as " on or about the fifth (5th) day of July, 1991" is
not likewise fatal to the prosecution's cause considering that Section 11 of the same Rule requires a statement of the
precise time only when the same is a material ingredient of the offense. The gravamen of the crime of estafa under
Article 315, paragraph 1 (b) of the Revised Penal Code (RPC) is the appropriation or conversion of money or
property received to the prejudice of the offender. Thus, aside from the fact that the date of the commission thereof is
not an essential element of the crime herein charged, the failure of the prosecution to specify the exact date does not
render the Information ipso facto defective. Moreover, the said date is also near the due date within which accusedappellant should have delivered the proceeds or returned the said [pieces of jewelry] as testified upon by Tangkoy,
hence, there was sufficient compliance with the rules. Accused-appellant, therefore, cannot now be allowed to claim
that he was not properly apprised of the charges proferred against him.7
It must be remembered that petitioner was convicted of the crime of Estafa under Article 315, paragraph 1 (b) of the
RPC, which reads:
ART. 315. Swindling (estafa). Any person who shall defraud another by any of the means mentioned hereinbelow.
q For whom?
a Lito Corpuz, sir.
q Were you able to look (sic) for him?
a I looked for him for a week, sir.
q Did you know his residence?
a Yes, sir.
q Did you go there?
a Yes, sir.
q Did you find him?
a No, sir.
q Were you able to talk to him since 5 July 1991?
1. With unfaithfulness or abuse of confidence, namely:

xxxx
(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property
received by the offender in trust or on commission, or for administration, or under any other obligation involving the
duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a
bond; or by denying having received such money, goods, or other property; x x x
a I talked to him, sir.

q How many times?
a Two times, sir.
q What did you talk (sic) to him?
The elements of estafa with abuse of confidence are as follows: (a) that money, goods or other personal property is
received by the offender in trust, or on commission, or for administration, or under any other obligation involving the
duty to make delivery of, or to return the same; (b) that there be misappropriation or conversion of such money or
property by the offender or denial on his part of such receipt; (c) that such misappropriation or conversion or denial is
to the prejudice of another; and (d) that there is a demand made by the offended party on the offender.8
a About the items I gave to (sic) him, sir.

q Referring to Exhibit A-2?
Petitioner argues that the last element, which is, that there is a demand by the offended party on the offender, was
not proved. This Court disagrees. In his testimony, private complainant narrated how he was able to locate petitioner
after almost two (2) months from the time he gave the pieces of jewelry and asked petitioner about the same items
with the latter promising to pay them. Thus:
a Yes, sir, and according to him he will take his obligation and I asked him where the items are and he promised me
that he will pay these amount, sir.
PROS. MARTINEZ
a No, sir.9
q Now, Mr. Witness, this was executed on 2 May 1991, and this transaction could have been finished on 5 July 1991,
the question is what happens (sic) when the deadline came?
No specific type of proof is required to show that there was demand.10 Demand need not even be formal; it may be
verbal.11 The specific word "demand" need not even be used to show that it has indeed been made upon the person
charged, since even a mere query as to the whereabouts of the money [in this case, property], would be tantamount
to a demand.12 As expounded in Asejo v. People:13
a I went looking for him, sir.
q Up to this time that you were here, were you able to collect from him partially or full?
With regard to the necessity of demand, we agree with the CA that demand under this kind of estafa need not be
formal or written. The appellate court observed that the law is silent with regard to the form of demand in estafa
under Art. 315 1(b), thus:
When the law does not qualify, We should not qualify. Should a written demand be necessary, the law would have
stated so. Otherwise, the word "demand" should be interpreted in its general meaning as to include both written and
oral demand. Thus, the failure of the prosecution to present a written demand as evidence is not fatal.
In Tubb v. People, where the complainant merely verbally inquired about the money entrusted to the accused, we
held that the query was tantamount to a demand, thus:
x x x [T]he law does not require a demand as a condition precedent to the existence of the crime of embezzlement. It
so happens only that failure to account, upon demand for funds or property held in trust, is circumstantial evidence of
misappropriation. The same way, however, be established by other proof, such as that introduced in the case at
bar.14
In view of the foregoing and based on the records, the prosecution was able to prove the existence of all the
elements of the crime. Private complainant gave petitioner the pieces of jewelry in trust, or on commission basis, as
shown in the receipt dated May 2, 1991 with an obligation to sell or return the same within sixty (60) days, if unsold.
There was misappropriation when petitioner failed to remit the proceeds of those pieces of jewelry sold, or if no sale
took place, failed to return the same pieces of jewelry within or after the agreed period despite demand from the
private complainant, to the prejudice of the latter.
Anent the credibility of the prosecution's sole witness, which is questioned by petitioner, the same is unmeritorious.
Settled is the rule that in assessing the credibility of witnesses, this Court gives great respect to the evaluation of the
trial court for it had the unique opportunity to observe the demeanor of witnesses and their deportment on the
witness stand, an opportunity denied the appellate courts, which merely rely on the records of the case.15 The
assessment by the trial court is even conclusive and binding if not tainted with arbitrariness or oversight of some fact
or circumstance of weight and influence, especially when such finding is affirmed by the CA.16 Truth is established
not by the number of witnesses, but by the quality of their testimonies, for in determining the value and credibility of
evidence, the witnesses are to be weighed not numbered.17
As regards the penalty, while this Court's Third Division was deliberating on this case, the question of the continued
validity of imposing on persons convicted of crimes involving property came up. The legislature apparently pegged
these penalties to the value of the money and property in 1930 when it enacted the Revised Penal Code. Since the
members of the division reached no unanimity on this question and since the issues are of first impression, they
decided to refer the case to the Court en banc for consideration and resolution. Thus, several amici curiae were
invited at the behest of the Court to give their academic opinions on the matter. Among those that graciously
complied were Dean Jose Manuel Diokno, Dean Sedfrey M. Candelaria, Professor Alfredo F. Tadiar, the Senate
President, and the Speaker of the House of Representatives. The parties were later heard on oral arguments before
the Court en banc, with Atty. Mario L. Bautista appearing as counsel de oficio of the petitioner.
After a thorough consideration of the arguments presented on the matter, this Court finds the following:
There seems to be a perceived injustice brought about by the range of penalties that the courts continue to impose
on crimes against property committed today, based on the amount of damage measured by the value of money
eighty years ago in 1932. However, this Court cannot modify the said range of penalties because that would
constitute judicial legislation. What the legislature's perceived failure in amending the penalties provided for in the
said crimes cannot be remedied through this Court's decisions, as that would be encroaching upon the power of
another branch of the government. This, however, does not render the whole situation without any remedy. It can be
appropriately presumed that the framers of the Revised Penal Code (RPC) had anticipated this matter by including
Article 5, which reads:
ART. 5. Duty of the court in connection with acts which should be repressed but which are not covered by the law,
and in cases of excessive penalties. - Whenever a court has knowledge of any act which it may deem proper to
repress and which is not punishable by law, it shall render the proper decision, and shall report to the Chief
Executive, through the Department of Justice, the reasons which induce the court to believe that said act should be
made the subject of penal legislation.
In the same way, the court shall submit to the Chief Executive, through the Department of Justice, such statement as
may be deemed proper, without suspending the execution of the sentence, when a strict enforcement of the
provisions of this Code would result in the imposition of a clearly excessive penalty, taking into consideration the
degree of malice and the injury caused by the offense.18
The first paragraph of the above provision clearly states that for acts bourne out of a case which is not punishable by
law and the court finds it proper to repress, the remedy is to render the proper decision and thereafter, report to the
Chief Executive, through the Department of Justice, the reasons why the same act should be the subject of penal
legislation. The premise here is that a deplorable act is present but is not the subject of any penal legislation, thus,
the court is tasked to inform the Chief Executive of the need to make that act punishable by law through legislation.
The second paragraph is similar to the first except for the situation wherein the act is already punishable by law but
the corresponding penalty is deemed by the court as excessive. The remedy therefore, as in the first paragraph is
not to suspend the execution of the sentence but to submit to the Chief Executive the reasons why the court
considers the said penalty to be non-commensurate with the act committed. Again, the court is tasked to inform the
Chief Executive, this time, of the need for a legislation to provide the proper penalty.
In his book, Commentaries on the Revised Penal Code,19 Guillermo B. Guevara opined that in Article 5, the duty of
the court is merely to report to the Chief Executive, with a recommendation for an amendment or modification of the
legal provisions which it believes to be harsh. Thus:
This provision is based under the legal maxim "nullum crimen, nulla poena sige lege," that is, that there can exist no
punishable act except those previously and specifically provided for by penal statute.
No matter how reprehensible an act is, if the law-making body does not deem it necessary to prohibit its perpetration
with penal sanction, the Court of justice will be entirely powerless to punish such act.
Under the provisions of this article the Court cannot suspend the execution of a sentence on the ground that the
strict enforcement of the provisions of this Code would cause excessive or harsh penalty. All that the Court could do
in such eventuality is to report the matter to the Chief Executive with a recommendation for an amendment or
modification of the legal provisions which it believes to be harsh.20
Anent the non-suspension of the execution of the sentence, retired Chief Justice Ramon C. Aquino and retired
Associate Justice Carolina C. Grio-Aquino, in their book, The Revised Penal Code,21 echoed the above-cited
commentary, thus:
The second paragraph of Art. 5 is an application of the humanitarian principle that justice must be tempered with
mercy. Generally, the courts have nothing to do with the wisdom or justness of the penalties fixed by law. "Whether or
not the penalties prescribed by law upon conviction of violations of particular statutes are too severe or are not
severe enough, are questions as to which commentators on the law may fairly differ; but it is the duty of the courts to
enforce the will of the legislator in all cases unless it clearly appears that a given penalty falls within the prohibited
class of excessive fines or cruel and unusual punishment." A petition for clemency should be addressed to the Chief
Executive.22
There is an opinion that the penalties provided for in crimes against property be based on the current inflation rate or
at the ratio of P1.00 is equal to P100.00 . However, it would be dangerous as this would result in uncertainties, as
opposed to the definite imposition of the penalties. It must be remembered that the economy fluctuates and if the
proposed imposition of the penalties in crimes against property be adopted, the penalties will not cease to change,
thus, making the RPC, a self-amending law. Had the framers of the RPC intended that to be so, it should have
provided the same, instead, it included the earlier cited Article 5 as a remedy. It is also improper to presume why the
present legislature has not made any moves to amend the subject penalties in order to conform with the present
times. For all we know, the legislature intends to retain the same penalties in order to deter the further commission of
those punishable acts which have increased tremendously through the years. In fact, in recent moves of the
legislature, it is apparent that it aims to broaden the coverage of those who violate penal laws. In the crime of
Plunder, from its original minimum amount of P100,000,000.00 plundered, the legislature lowered it
toP50,000,000.00. In the same way, the legislature lowered the threshold amount upon which the Anti-Money
Laundering Act may apply, from P1,000,000.00 to P500,000.00.
It is also worth noting that in the crimes of Theft and Estafa, the present penalties do not seem to be excessive
compared to the proposed imposition of their corresponding penalties. In Theft, the provisions state that:
In a case wherein the value of the thing stolen is P6,000.00, the above-provision states that the penalty is prision
correccional in its minimum and medium periods (6 months and 1 day to 4 years and 2 months). Applying the
proposal, if the value of the thing stolen is P6,000.00, the penalty is imprisonment of arresto mayor in its medium
period to prision correccional minimum period (2 months and 1 day to 2 years and 4 months). It would seem that
under the present law, the penalty imposed is almost the same as the penalty proposed. In fact, after the application
of the Indeterminate Sentence Law under the existing law, the minimum penalty is still lowered by one degree;
hence, the minimum penalty is arresto mayor in its medium period to maximum period (2 months and 1 day to 6
months), making the offender qualified for pardon or parole after serving the said minimum period and may even
apply for probation. Moreover, under the proposal, the minimum penalty after applying the Indeterminate Sentence
Law is arresto menor in its maximum period to arresto mayor in its minimum period (21 days to 2 months) is not too
far from the minimum period under the existing law. Thus, it would seem that the present penalty imposed under the
law is not at all excessive. The same is also true in the crime of Estafa.23
Moreover, if we apply the ratio of 1:100, as suggested to the value of the thing stolen in the crime of Theft and the
damage caused in the crime of Estafa, the gap between the minimum and the maximum amounts, which is the basis
of determining the proper penalty to be imposed, would be too wide and the penalty imposable would no longer be
commensurate to the act committed and the value of the thing stolen or the damage caused:
Art. 309. Penalties. Any person guilty of theft shall be punished by:
I. Article 309, or the penalties for the crime of Theft, the value would be modified but the penalties are not changed:
1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing stolen is more
than 12,000 pesos but does not exceed 22,000 pesos, but if the value of the thing stolen exceeds the latter
amount the penalty shall be the maximum period of the one prescribed in this paragraph, and one year for
each additional ten thousand pesos, but the total of the penalty which may be imposed shall not exceed
twenty years. In such cases, and in connection with the accessory penalties which may be imposed and
for the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion
temporal, as the case may be.
2. The penalty of prision correccional in its medium and maximum periods, if the value of the thing stolen is
more than 6,000 pesos but does not exceed 12,000 pesos.
3. The penalty of prision correccional in its minimum and medium periods, if the value of the property
stolen is more than 200 pesos but does not exceed 6,000 pesos.
4. Arresto mayor in its medium period to prision correccional in its minimum period, if the value of the
property stolen is over 50 pesos but does not exceed 200 pesos.
5. Arresto mayor to its full extent, if such value is over 5 pesos but does not exceed 50 pesos.
6. Arresto mayor in its minimum and medium periods, if such value does not exceed 5 pesos.
7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed under the circumstances
enumerated in paragraph 3 of the next preceding article and the value of the thing stolen does not exceed
5 pesos. If such value exceeds said amount, the provision of any of the five preceding subdivisions shall
be made applicable.
8. Arresto menor in its minimum period or a fine not exceeding 50 pesos, when the value of the thing
stolen is not over 5 pesos, and the offender shall have acted under the impulse of hunger, poverty, or the
difficulty of earning a livelihood for the support of himself or his family.
1. P12,000.00 to P22,000.00 will become P1,200,000.00 to P2,200,000.00, punished by prision mayor

minimum to prision mayor medium (6 years and 1 day to 10 years).
2. P6,000.00 to P12,000.00 will become P600,000.00 to P1,200,000.00, punished by prision correccional
medium and to prision correccional maximum (2 years, 4 months and 1 day to 6 years).24
3. P200.00 to P6,000.00 will become P20,000.00 to P600,000.00, punishable by prision correccional
minimum to prision correccional medium (6 months and 1 day to 4 years and 2 months).
4. P50.00 to P200.00 will become P5,000.00 to P20,000.00, punishable by arresto mayor medium to
prision correccional minimum (2 months and 1 day to 2 years and 4 months).
5. P5.00 to P50.00 will become P500.00 to P5,000.00, punishable by arresto mayor (1 month and 1 day to
6 months).
6. P5.00 will become P500.00, punishable by arresto mayor minimum to arresto mayor medium.
x x x x.
II. Article 315, or the penalties for the crime of Estafa, the value would also be modified but the penalties are not
changed, as follows:
1st. P12,000.00 to P22,000.00, will become P1,200,000.00 to P2,200,000.00, punishable by prision
correccional maximum to prision mayor minimum (4 years, 2 months and 1 day to 8 years).25
2nd. P6,000.00 to P12,000.00 will become P600,000.00 to P1,200,000.00, punishable by prision
correccional minimum to prision correccional medium (6 months and 1 day to 4 years and 2 months).26
3rd. P200.00 to P6,000.00 will become P20,000.00 to P600,000.00, punishable by arresto mayor
maximum to prision correccional minimum (4 months and 1 day to 2 years and 4 months).
4th. P200.00 will become P20,000.00, punishable by arresto mayor maximum (4 months and 1 day to 6
months).
JUSTICE PERALTA:
Then what will be the penalty that we are going to impose if the amount is more than Twenty-Two Thousand
(P22,000.00) Pesos.
DEAN DIOKNO:
An argument raised by Dean Jose Manuel I. Diokno, one of our esteemed amici curiae, is that the incremental
penalty provided under Article 315 of the RPC violates the Equal Protection Clause.
The equal protection clause requires equality among equals, which is determined according to a valid classification.
The test developed by jurisprudence here and yonder is that of reasonableness,27 which has four requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
Well, that would be for Congress to ... if this Court will declare the incremental penalty rule unconstitutional, then that
would ... the void should be filled by Congress.
JUSTICE PERALTA:
But in your presentation, you were fixing the amount at One Hundred Thousand (P100,000.00) Pesos ...
DEAN DIOKNO:
(3) It is not limited to existing conditions only; and

(4) It applies equally to all members of the same class.28
According to Dean Diokno, the Incremental Penalty Rule (IPR) does not rest on substantial distinctions
asP10,000.00 may have been substantial in the past, but it is not so today, which violates the first requisite; the IPR
was devised so that those who commit estafa involving higher amounts would receive heavier penalties; however,
this is no longer achieved, because a person who steals P142,000.00 would receive the same penalty as someone
who steals hundreds of millions, which violates the second requisite; and, the IPR violates requisite no. 3,
considering that the IPR is limited to existing conditions at the time the law was promulgated, conditions that no
longer exist today.
Assuming that the Court submits to the argument of Dean Diokno and declares the incremental penalty in Article 315
unconstitutional for violating the equal protection clause, what then is the penalty that should be applied in case the
amount of the thing subject matter of the crime exceeds P22,000.00? It seems that the proposition poses more
questions than answers, which leads us even more to conclude that the appropriate remedy is to refer these matters
to Congress for them to exercise their inherent power to legislate laws.
Well, my presen ... (interrupted)

JUSTICE PERALTA:
For every One Hundred Thousand (P100,000.00) Pesos in excess of Twenty-Two Thousand (P22,000.00) Pesos
you were suggesting an additional penalty of one (1) year, did I get you right?
DEAN DIOKNO:
Yes, Your Honor, that is, if the court will take the route of statutory interpretation.
JUSTICE PERALTA:
Ah ...
DEAN DIOKNO:
Even Dean Diokno was of the opinion that if the Court declares the IPR unconstitutional, the remedy is to go to
Congress. Thus:
xxxx
If the Court will say that they can go beyond the literal wording of the law...
JUSTICE PERALTA:
JUSTICE PERALTA:
But if we de ... (interrupted)
Now, your position is to declare that the incremental penalty should be struck down as unconstitutional because it is
absurd.
DEAN DIOKNO:
DEAN DIOKNO:
Absurd, it violates equal protection, Your Honor, and cruel and unusual punishment.
....then....
JUSTICE PERALTA:
Ah, yeah. But if we declare the incremental penalty as unsconstitutional, the court cannot fix the amount ...
DEAN DIOKNO:
JUSTICE PERALTA:
No, Your Honor.
The amount in excess of Twenty-Two Thousand (P22,000.00) Pesos.
JUSTICE PERALTA:
Thank you, Dean.
... as the equivalent of one, as an incremental penalty in excess of Twenty-Two Thousand (P22,000.00) Pesos.
DEAN DIOKNO:
DEAN DIOKNO:
Thank you.
No, Your Honor.

JUSTICE PERALTA:
The Court cannot do that.
DEAN DIOKNO:
Could not be.
JUSTICE PERALTA:
The only remedy is to go to Congress...
DEAN DIOKNO:
Yes, Your Honor.
JUSTICE PERALTA:
... and determine the value or the amount.
x x x x29
Dean Diokno also contends that Article 315 of the Revised Penal Code constitutes cruel and unusual punishment.
Citing Solem v. Helm,30 Dean Diokno avers that the United States Federal Supreme Court has expanded the
application of a similar Constitutional provision prohibiting cruel and unusual punishment, to the duration of the
penalty, and not just its form. The court therein ruled that three things must be done to decide whether a sentence is
proportional to a specific crime, viz.; (1) Compare the nature and gravity of the offense, and the harshness of the
penalty; (2) Compare the sentences imposed on other criminals in the same jurisdiction, i.e., whether more serious
crimes are subject to the same penalty or to less serious penalties; and (3) Compare the sentences imposed for
commission of the same crime in other jurisdictions.
However, the case of Solem v. Helm cannot be applied in the present case, because in Solem what respondent
therein deemed cruel was the penalty imposed by the state court of South Dakota after it took into account the
latters recidivist statute and not the original penalty for uttering a "no account" check. Normally, the maximum
punishment for the crime would have been five years imprisonment and a $5,000.00 fine. Nonetheless, respondent
was sentenced to life imprisonment without the possibility of parole under South Dakotas recidivist statute because
of his six prior felony convictions. Surely, the factual antecedents of Solem are different from the present controversy.
With respect to the crime of Qualified Theft, however, it is true that the imposable penalty for the offense is high.
Nevertheless, the rationale for the imposition of a higher penalty against a domestic servant is the fact that in the
commission of the crime, the helper will essentially gravely abuse the trust and confidence reposed upon her by her
employer. After accepting and allowing the helper to be a member of the household, thus entrusting upon such
person the protection and safekeeping of the employers loved ones and properties, a subsequent betrayal of that
trust is so repulsive as to warrant the necessity of imposing a higher penalty to deter the commission of such
wrongful acts.
DEAN DIOKNO:
Yes, Your Honor.
JUSTICE PERALTA:
That will be equivalent to the incremental penalty of one (1) year in excess of Twenty-Two Thousand (P22,000.00)
Pesos.
There are other crimes where the penalty of fine and/or imprisonment are dependent on the subject matter of the
crime and which, by adopting the proposal, may create serious implications. For example, in the crime of
Malversation, the penalty imposed depends on the amount of the money malversed by the public official, thus:
Art. 217. Malversation of public funds or property; Presumption of malversation. Any public officer who, by reason
of the duties of his office, is accountable for public funds or property, shall appropriate the same or shall take or
misappropriate or shall consent, through abandonment or negligence, shall permit any other person to take such
public funds, or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of
such funds or property, shall suffer:
DEAN DIOKNO:
Yes, Your Honor.
1. The penalty of prision correccional in its medium and maximum periods, if the amount involved in the
misappropriation or malversation does not exceed two hundred pesos.
2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than
two hundred pesos but does not exceed six thousand pesos.
3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if the
amount involved is more than six thousand pesos but is less than twelve thousand pesos.
4. The penalty of reclusion temporal, in its medium and maximum periods, if the amount involved is more
than twelve thousand pesos but is less than twenty-two thousand pesos. If the amount exceeds the latter,
the penalty shall be reclusion temporal in its maximum period to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine
equal to the amount of the funds malversed or equal to the total value of the property embezzled.
The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon
demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property
to personal use.
The above-provisions contemplate a situation wherein the Government loses money due to the unlawful acts of the
offender. Thus, following the proposal, if the amount malversed is P200.00 (under the existing law), the amount now
becomes P20,000.00 and the penalty is prision correccional in its medium and maximum periods (2 years 4 months
and 1 day to 6 years). The penalty may not be commensurate to the act of embezzlement ofP20,000.00 compared to
the acts committed by public officials punishable by a special law, i.e., Republic Act No. 3019 or the Anti-Graft and
Corrupt Practices Act, specifically Section 3,31 wherein the injury caused to the government is not generally defined
by any monetary amount, the penalty (6 years and 1 month to 15 years)32under the Anti-Graft Law will now become
higher. This should not be the case, because in the crime of malversation, the public official takes advantage of his
public position to embezzle the fund or property of the government entrusted to him.
The said inequity is also apparent in the crime of Robbery with force upon things (inhabited or uninhabited) where
the value of the thing unlawfully taken and the act of unlawful entry are the bases of the penalty imposable, and also,
in Malicious Mischief, where the penalty of imprisonment or fine is dependent on the cost of the damage caused.
In Robbery with force upon things (inhabited or uninhabited), if we increase the value of the thing unlawfully taken,
as proposed in the ponencia, the sole basis of the penalty will now be the value of the thing unlawfully taken and no
longer the element of force employed in entering the premises. It may likewise cause an inequity between the crime
of Qualified Trespass to Dwelling under Article 280, and this kind of robbery because the former is punishable by
prision correccional in its medium and maximum periods (2 years, 4 months and 1 day to 6 years) and a fine not
exceeding P1,000.00 (P100,000.00 now if the ratio is 1:100) where entrance to the premises is with violence or
intimidation, which is the main justification of the penalty. Whereas in the crime of Robbery with force upon things, it
is punished with a penalty of prision mayor (6 years and 1 day to 12 years) if the intruder is unarmed without the
penalty of Fine despite the fact that it is not merely the illegal entry that is the basis of the penalty but likewise the
unlawful taking.
Furthermore, in the crime of Other Mischiefs under Article 329, the highest penalty that can be imposed is arresto
mayor in its medium and maximum periods (2 months and 1 day to 6 months) if the value of the damage caused
exceeds P1,000.00, but under the proposal, the value of the damage will now become P100,000.00 (1:100), and still
punishable by arresto mayor (1 month and 1 day to 6 months). And, if the value of the damaged property does not
exceed P200.00, the penalty is arresto menor or a fine of not less than the value of the damage caused and not
more than P200.00, if the amount involved does not exceed P200.00 or cannot be estimated. Under the
proposal, P200.00 will now become P20,000.00, which simply means that the fine of P200.00 under the existing law
will now become P20,000.00. The amount of Fine under this situation will now become excessive and afflictive in
nature despite the fact that the offense is categorized as a light felony penalized with a light penalty under Article 26
of the RPC.33 Unless we also amend Article 26 of the RPC, there will be grave implications on the penalty of Fine,
but changing the same through Court decision, either expressly or impliedly, may not be legally and constitutionally
feasible.
There are other crimes against property and swindling in the RPC that may also be affected by the proposal, such as
those that impose imprisonment and/or Fine as a penalty based on the value of the damage caused, to wit: Article
311 (Theft of the property of the National Library and National Museum), Article 312 (Occupation of real property or
usurpation of real rights in property), Article 313 (Altering boundaries or landmarks), Article 316 (Other forms of
swindling), Article 317 (Swindling a minor), Article 318 (Other deceits), Article 328 (Special cases of malicious
mischief) and Article 331 (Destroying or damaging statues, public monuments or paintings). Other crimes that
impose Fine as a penalty will also be affected, such as: Article 213 (Frauds against the public treasury and similar
offenses), Article 215 (Prohibited Transactions),
Article 216 (Possession of prohibited interest by a public officer), Article 218 (Failure of accountable officer to render
accounts), Article 219 (Failure of a responsible public officer to render accounts before leaving the country).
In addition, the proposal will not only affect crimes under the RPC. It will also affect crimes which are punishable by
special penal laws, such as Illegal Logging or Violation of Section 68 of Presidential Decree No. 705, as
amended.34 The law treats cutting, gathering, collecting and possessing timber or other forest products without
license as an offense as grave as and equivalent to the felony of qualified theft.35 Under the law, the offender shall
be punished with the penalties imposed under Articles 309 and 31036 of the Revised Penal Code, which means that
the penalty imposable for the offense is, again, based on the value of the timber or forest products involved in the
offense. Now, if we accept the said proposal in the crime of Theft, will this particular crime of Illegal Logging be
amended also in so far as the penalty is concerned because the penalty is dependent on Articles 309 and 310 of the
RPC? The answer is in the negative because the soundness of this particular law is not in question.
With the numerous crimes defined and penalized under the Revised Penal Code and Special Laws, and other
related provisions of these laws affected by the proposal, a thorough study is needed to determine its effectivity and
necessity. There may be some provisions of the law that should be amended; nevertheless, this Court is in no
position to conclude as to the intentions of the framers of the Revised Penal Code by merely making a study of the
applicability of the penalties imposable in the present times. Such is not within the competence of the Court but of
the Legislature which is empowered to conduct public hearings on the matter, consult legal luminaries and who, after
due proceedings, can decide whether or not to amend or to revise the questioned law or other laws, or even create a
new legislation which will adopt to the times.
Admittedly, Congress is aware that there is an urgent need to amend the Revised Penal Code. During the oral
arguments, counsel for the Senate informed the Court that at present, fifty-six (56) bills are now pending in the
Senate seeking to amend the Revised Penal Code,37 each one proposing much needed change and updates to
archaic laws that were promulgated decades ago when the political, socio-economic, and cultural settings were far
different from todays conditions.
Verily, the primordial duty of the Court is merely to apply the law in such a way that it shall not usurp legislative
powers by judicial legislation and that in the course of such application or construction, it should not make or
supervise legislation, or under the guise of interpretation, modify, revise, amend, distort, remodel, or rewrite the law,
or give the law a construction which is repugnant to its terms.38 The Court should apply the law in a manner that
would give effect to their letter and spirit, especially when the law is clear as to its intent and purpose. Succinctly put,
the Court should shy away from encroaching upon the primary function of a co-equal branch of the Government;
otherwise, this would lead to an inexcusable breach of the doctrine of separation of powers by means of judicial
legislation.
Moreover, it is to be noted that civil indemnity is, technically, not a penalty or a Fine; hence, it can be increased by
the Court when appropriate. Article 2206 of the Civil Code provides:
Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand
pesos, even though there may have been mitigating circumstances. In addition:
(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity
shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the
court, unless the deceased on account of permanent physical disability not caused by the defendant, had
no earning capacity at the time of his death;
(2) If the deceased was obliged to give support according to the provisions of Article 291, the recipient who
is not an heir called to the decedent's inheritance by the law of testate or intestate succession, may
demand support from the person causing the death, for a period not exceeding five years, the exact
duration to be fixed by the court;
(3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand
moral damages for mental anguish by reason of the death of the deceased.
In our jurisdiction, civil indemnity is awarded to the offended party as a kind of monetary restitution or compensation
to the victim for the damage or infraction that was done to the latter by the accused, which in a sense only covers the
civil aspect. Precisely, it is civil indemnity. Thus, in a crime where a person dies, in addition to the penalty of
imprisonment imposed to the offender, the accused is also ordered to pay the victim a sum of money as restitution.
Clearly, this award of civil indemnity due to the death of the victim could not be contemplated as akin to the value of a
thing that is unlawfully taken which is the basis in the imposition of the proper penalty in certain crimes. Thus, the
reasoning in increasing the value of civil indemnity awarded in some offense cannot be the same reasoning that
would sustain the adoption of the suggested ratio. Also, it is apparent from Article 2206 that the law only imposes a
minimum amount for awards of civil indemnity, which is P3,000.00. The law did not provide for a ceiling. Thus,
although the minimum amount for the award cannot be changed, increasing the amount awarded as civil indemnity
can be validly modified and increased when the present circumstance warrants it. Corollarily, moral damages under
Article 222039 of the Civil Code also does not fix the amount of damages that can be awarded. It is discretionary
upon the court, depending on the mental anguish or the suffering of the private offended party. The amount of moral
damages can, in relation to civil indemnity, be adjusted so long as it does not exceed the award of civil indemnity.
In addition, some may view the penalty provided by law for the offense committed as tantamount to cruel
punishment. However, all penalties are generally harsh, being punitive in nature. Whether or not they are excessive
or amount to cruel punishment is a matter that should be left to lawmakers. It is the prerogative of the courts to apply
the law, especially when they are clear and not subject to any other interpretation than that which is plainly written.
Similar to the argument of Dean Diokno, one of Justice Antonio Carpios opinions is that the incremental penalty
provision should be declared unconstitutional and that the courts should only impose the penalty corresponding to
the amount of P22,000.00, regardless if the actual amount involved exceeds P22,000.00. As suggested, however,
from now until the law is properly amended by Congress, all crimes of Estafa will no longer be punished by the
appropriate penalty. A conundrum in the regular course of criminal justice would occur when every accused convicted
of the crime of estafa will be meted penalties different from the proper penalty that should be imposed. Such drastic
twist in the application of the law has no legal basis and directly runs counter to what the law provides.
It should be noted that the death penalty was reintroduced in the dispensation of criminal justice by the Ramos
Administration by virtue of Republic Act No. 765940 in December 1993. The said law has been questioned before
this Court. There is, arguably, no punishment more cruel than that of death. Yet still, from the time the death penalty
was re-imposed until its lifting in June 2006 by Republic Act No. 9346,41 the Court did not impede the imposition of
the death penalty on the ground that it is a "cruel punishment" within the purview of Section 19 (1),42Article III of the
Constitution. Ultimately, it was through an act of Congress suspending the imposition of the death penalty that led to
its non-imposition and not via the intervention of the Court.
Even if the imposable penalty amounts to cruel punishment, the Court cannot declare the provision of the law from
which the proper penalty emanates unconstitutional in the present action. Not only is it violative of due process,
considering that the State and the concerned parties were not given the opportunity to comment on the subject
matter, it is settled that the constitutionality of a statute cannot be attacked collaterally because constitutionality
issues must be pleaded directly and not collaterally,43 more so in the present controversy wherein the issues never
touched upon the constitutionality of any of the provisions of the Revised Penal Code.
Besides, it has long been held that the prohibition of cruel and unusual punishments is generally aimed at the form or
character of the punishment rather than its severity in respect of duration or amount, and applies to punishments
which public sentiment has regarded as cruel or obsolete, for instance, those inflicted at the whipping post, or in the
pillory, burning at the stake, breaking on the wheel, disemboweling, and the like. Fine and imprisonment would not
thus be within the prohibition.44
It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the
Constitution. The fact that the punishment authorized by the statute is severe does not make it cruel and unusual.
Expressed in other terms, it has been held that to come under the ban, the punishment must be "flagrantly and
plainly oppressive," "wholly disproportionate to the nature of the offense as to shock the moral sense of the
community."45
Cruel as it may be, as discussed above, it is for the Congress to amend the law and adapt it to our modern time.
The solution to the present controversy could not be solved by merely adjusting the questioned monetary values to
the present value of money based only on the current inflation rate. There are other factors and variables that need
to be taken into consideration, researched, and deliberated upon before the said values could be accurately and
properly adjusted. The effects on the society, the injured party, the accused, its socio-economic impact, and the likes
must be painstakingly evaluated and weighed upon in order to arrive at a wholistic change that all of us believe
should be made to our existing law. Dejectedly, the Court is ill-equipped, has no resources, and lacks sufficient
personnel to conduct public hearings and sponsor studies and surveys to validly effect these changes in our Revised
Penal Code. This function clearly and appropriately belongs to Congress. Even Professor Tadiar concedes to this
conclusion, to wit:
xxxx
JUSTICE PERALTA:
Yeah, Just one question. You are suggesting that in order to determine the value of Peso you have to take into
consideration several factors.
PROFESSOR TADIAR:
Yes.
JUSTICE PERALTA:
Per capita income.
PROFESSOR TADIAR:
Per capita income.
JUSTICE PERALTA:
PROFESSOR TADIAR:
Consumer price index.
That is my position that the Supreme Court ...
PROFESSOR TADIAR:
JUSTICE PERALTA:
Yeah.
Yeah, okay.
JUSTICE PERALTA:
PROFESSOR TADIAR:
Inflation ...
... has no power to utilize the power of judicial review to in order to adjust, to make the adjustment that is a power
that belongs to the legislature.
PROFESSOR TADIAR:
JUSTICE PERALTA:
Yes.
Thank you, Professor.
JUSTICE PERALTA:
PROFESSOR TADIAR:
... and so on. Is the Supreme Court equipped to determine those factors?
Thank you.46
PROFESSOR TADIAR:
There are many ways by which the value of the Philippine Peso can be determined utilizing all of those economic
terms.
JUSTICE PERALTA:
Yeah, but ...
PROFESSOR TADIAR:
And I dont think it is within the power of the Supreme Court to pass upon and peg the value to One Hundred
(P100.00) Pesos to ...
JUSTICE PERALTA:
Yeah.
PROFESSOR TADIAR:
... One (P1.00.00) Peso in 1930.
JUSTICE PERALTA:
That is legislative in nature.
Finally, the opinion advanced by Chief Justice Maria Lourdes P. A. Sereno echoes the view that the role of the Court
is not merely to dispense justice, but also the active duty to prevent injustice. Thus, in order to prevent injustice in the
present controversy, the Court should not impose an obsolete penalty pegged eighty three years ago, but consider
the proposed ratio of 1:100 as simply compensating for inflation. Furthermore, the Court has in the past taken into
consideration "changed conditions" or "significant changes in circumstances" in its decisions.
Similarly, the Chief Justice is of the view that the Court is not delving into the validity of the substance of a statute.
The issue is no different from the Courts adjustment of indemnity in crimes against persons, which the Court had
previously adjusted in light of current times, like in the case of People v. Pantoja.47 Besides, Article 10 of the Civil
Code mandates a presumption that the lawmaking body intended right and justice to prevail.
With due respect to the opinions and proposals advanced by the Chief Justice and my Colleagues, all the proposals
ultimately lead to prohibited judicial legislation. Short of being repetitious and as extensively discussed above, it is
truly beyond the powers of the Court to legislate laws, such immense power belongs to Congress and the Court
should refrain from crossing this clear-cut divide. With regard to civil indemnity, as elucidated before, this refers to
civil liability which is awarded to the offended party as a kind of monetary restitution. It is truly based on the value of
money. The same cannot be said on penalties because, as earlier stated, penalties are not only based on the value
of money, but on several other factors. Further, since the law is silent as to the maximum amount that can be
awarded and only pegged the minimum sum, increasing the amount granted as civil indemnity is not proscribed.
Thus, it can be adjusted in light of current conditions.
Now, with regard to the penalty imposed in the present case, the CA modified the ruling of the RTC. The RTC
imposed the indeterminate penalty of four (4) years and two (2) months of prision correccional in its medium period,
as minimum, to fourteen (14) years and eight (8) months of reclusion temporal in its minimum period, as maximum.
However, the CA imposed the indeterminate penalty of four (4) years and two (2) months of prision correccional, as
minimum, to eight (8) years of prision mayor, as maximum, plus one (1) year for each additionalP10,000.00, or a
total of seven (7) years.
In computing the penalty for this type of estafa, this Court's ruling in Cosme, Jr. v. People48 is highly instructive, thus:
With respect to the imposable penalty, Article 315 of the Revised Penal Code provides:
ART. 315 Swindling (estafa). - Any person who shall defraud another by any of the means mentioned hereinbelow
shall be punished by:
1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if the amount of
the fraud is over 12,000 but does not exceed 22,000 pesos, and if such amount exceeds the latter sum, the penalty
provided in this paragraph shall be imposed in its maximum period, adding one year for each additional 10,000
pesos; but the total penalty which may be imposed shall not exceed twenty years. In such case, and in connection
with the accessory penalties which may be imposed and for the purpose of the other provisions of this Code, the
penalty shall be termed prision mayor or reclusion temporal, as the case may be.
The penalty prescribed by Article 315 is composed of only two, not three, periods, in which case, Article 65 of the
same Code requires the division of the time included in the penalty into three equal portions of time included in the
penalty prescribed, forming one period of each of the three portions. Applying the latter provisions, the maximum,
medium and minimum periods of the penalty prescribed are:
WHEREFORE, the Petition for Review on Certiorari dated November 5, 2007 of petitioner Lito Corpuz is hereby
DENIED. Consequently, the Decision dated March 22, 2007 and Resolution dated September 5, 2007 of the Court of
Appeals, which affirmed with modification the Decision dated July 30, 2004 of the Regional Trial Court, Branch 46,
San Fernando City, finding petitioner guilty beyond reasonable doubt of the crime of Estafa under Article 315,
paragraph (1), sub-paragraph (b) of the Revised Penal Code, are hereby AFFIRMED with MODIFICATION that the
penalty imposed is the indeterminate penalty of imprisonment ranging from THREE (3) YEARS, TWO (2) MONTHS
and ELEVEN DAYS of prision correccional, as minimum, to FIFTEEN (15) YEARS of reclusion temporal as
maximum.
Pursuant to Article 5 of the Revised Penal Code, let a Copy of this Decision be furnished the President of the
Republic of the Philippines, through the Department of Justice.
Also, let a copy of this Decision be furnished the President of the Senate and the Speaker of the House of
Representatives.
SO ORDERED.
Maximum - 6 years, 8 months, 21 days to 8 years

Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days
Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10 days49
To compute the maximum period of the prescribed penalty, prisin correccional maximum to prisin mayor minimum
should be divided into three equal portions of time each of which portion shall be deemed to form one period in
accordance with Article 6550 of the RPC.51 In the present case, the amount involved is P98,000.00, which
exceeds P22,000.00, thus, the maximum penalty imposable should be within the maximum period of 6 years, 8
months and 21 days to 8 years of prision mayor. Article 315 also states that a period of one year shall be added to
the penalty for every additional P10,000.00 defrauded in excess of P22,000.00, but in no case shall the total penalty
which may be imposed exceed 20 years.
Considering that the amount of P98,000.00 is P76,000.00 more than the P22,000.00 ceiling set by law, then, adding
one year for each additional P10,000.00, the maximum period of 6 years, 8 months and 21 days to 8 years of prision
mayor minimum would be increased by 7 years. Taking the maximum of the prescribed penalty, which is 8 years,
plus an additional 7 years, the maximum of the indeterminate penalty is 15 years.
Applying the Indeterminate Sentence Law, since the penalty prescribed by law for the estafa charge against
petitioner is prision correccional maximum to prision mayor minimum, the penalty next lower would then be prision
correccional in its minimum and medium periods.
Thus, the minimum term of the indeterminate sentence should be anywhere from 6 months and 1 day to 4 years and
2 months.
One final note, the Court should give Congress a chance to perform its primordial duty of lawmaking. The Court
should not pre-empt Congress and usurp its inherent powers of making and enacting laws. While it may be the most
expeditious approach, a short cut by judicial fiat is a dangerous proposition, lest the Court dare trespass on
prohibited judicial legislation.
G.R. No. 209287

July 1, 2014
MARIA CAROLINA P. ARAULLO, CHAIRPERSON, BAGONG ALYANSANG MAKABAYAN; JUDY M.
TAGUIWALO, PROFESSOR, UNIVERSITY OF THE PHILIPPINES DILIMAN, CO-CHAIRPERSON, PAGBABAGO;
HENRI KAHN, CONCERNED CITIZENS MOVEMENT; REP. LUZ ILAGAN, GABRIELA WOMEN'S PARTY
REPRESENTATIVE; REP. CARLOS ISAGANI ZARATE, BAY AN MUNA PARTY-LIST REPRESENTATIVE;
RENATO M. REYES, JR., SECRETARY GENERAL OF BAYAN; MANUEL K. DAYRIT, CHAIRMAN, ANG
KAPATIRAN PARTY; VENCER MARI E. CRISOSTOMO, CHAIRPERSON, ANAKBAYAN; VICTOR VILLANUEVA,
CONVENOR, YOUTH ACT NOW, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES; PAQUITO N.
OCHOA, JR., EXECUTIVE SECRETARY; AND FLORENCIO B. ABAD, SECRETARY OF THE DEPARTMENT OF
BUDGET AND MANAGEMENT, Respondents.
x-----------------------x
G.R. No. 209135
AUGUSTO L. SY JUCO JR., Ph.D., Petitioner,
vs.
FLORENCIO B. ABAD, IN HIS CAPACITY AS THE SECRETARY OF DEPARTMENT OF BUDGET AND
MANAGEMENT; AND HON. FRANKLIN MAGTUNAO DRILON, IN HIS CAP A CITY AS THE SENATE
PRESIDENT OF THE PHILIPPINES, Respondents.
x-----------------------x
G.R. No. 209136
MANUELITO R. LUNA, Petitioner,
vs.
SECRETARY FLORENCIO ABAD, IN HIS OFFICIAL CAPACITY AS HEAD OF THE DEPARTMENT OF BUDGET
AND MANAGEMENT; AND EXECUTIVE SECRETARY PAQUITO OCHOA, IN HIS OFFICIAL CAPACITY AS
ALTER EGO OF THE PRESIDENT, Respondents.
x-----------------------x
G.R. No. 209155

ATTY. JOSE MALV AR VILLEGAS, JR., Petitioner,
vs.
THE HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.; AND THE SECRETARY OF BUDGET
AND MANAGEMENT FLORENCIO B. ABAD, Respondents.
x-----------------------x
G.R. No. 209164
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), REPRESENTED BY DEAN FROILAN M.
BACUNGAN, BENJAMIN E. DIOKNO AND LEONOR M. BRIONES, Petitioners,
vs.
DEPARTMENT OF BUDGET AND MANAGEMENT AND/OR HON. FLORENCIO B. ABAD, Respondents.
x-----------------------x
G.R. No. 209260
INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioner,
vs.
SECRETARY FLORENCIO B. ABAD OF THE DEPARTMENT OF BUDGET AND MANAGEMENT
(DBM),Respondent.
x-----------------------x
G.R. No. 209442
GRECO ANTONIOUS BEDA B. BELGICA; BISHOP REUBEN MABANTE AND REV. JOSE L.
GONZALEZ,Petitioners,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III, THE SENATE OF THE PHILIPPINES, REPRESENTED BY
SENATE PRESIDENT FRANKLIN M. DRILON; THE HOUSE OF REPRESENTATIVES, REPRESENTED BY
SPEAKER FELICIANO BELMONTE, JR.; THE EXECUTIVE OFFICE, REPRESENTED BY EXECUTIVE
SECRETARY PAQUITO N. OCHOA, JR.; THE DEPARTMENT OF BUDGET AND MANAGEMENT,
REPRESENTED BY SECRETARY FLORENCIO ABAD; THE DEPARTMENT OF FINANCE, REPRESENTED BY
SECRETARY CESAR V. PURISIMA; AND THE BUREAU OF TREASURY, REPRESENTED BY ROSALIA V. DE
LEON, Respondents.
x-----------------------x
G.R. No. 209517
CONFEDERATION FOR UNITY, RECOGNITION AND ADV AN CEMENT OF GOVERNMENT EMPLOYEES
(COURAGE), REPRESENTED BY ITS 1ST VICE PRESIDENT, SANTIAGO DASMARINAS, JR.; ROSALINDA
NARTATES, FOR HERSELF AND AS NATIONAL PRESIDENT OF THE CONSOLIDATED UNION OF
EMPLOYEES NATIONAL HOUSING AUTHORITY (CUENHA); MANUEL BACLAGON, FOR HIMSELF AND AS
PRESIDENT OF THE SOCIAL WELFARE EMPLOYEES ASSOCIATION OF THE PHILIPPINES, DEPARTMENT
OF SOCIAL WELFARE AND DEVELOPMENT CENTRAL OFFICE (SWEAP-DSWD CO); ANTONIA PASCUAL,
FOR HERSELF AND AS NATIONAL PRESIDENT OF THE DEPARTMENT OF AGRARIAN REFORM
EMPLOYEES ASSOCIATION (DAREA); ALBERT MAGALANG, FOR HIMSELF AND AS PRESIDENT OF THE
ENVIRONMENT AND MANAGEMENT BUREAU EMPLOYEES UNION (EMBEU); AND MARCIAL ARABA, FOR
HIMSELF AND AS PRESIDENT OF THE KAPISANAN PARA SA KAGALINGAN NG MGA KAW ANI NG MMDA
(KKKMMDA), Petitioners,
vs.
BENIGNO SIMEON C. AQUINO Ill, PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES; PAQUITO OCHOA,
JR., EXECUTIVE SECRETARY; AND HON. FLORENCIO B. ABAD, SECRETARY OF THE DEPARTMENT OF
BUDGET AND MANAGEMENT, Respondents.
x-----------------------x
G.R. No. 209569
VOLUNTEERS AGAINST CRIME AND CORRUPTION (VACC), REPRESENTED BY DANTE L.
JIMENEZ,Petitioner,
vs.
PAQUITO N. OCHOA, EXECUTIVE SECRETARY, AND FLORENCIO B. ABAD, SECRETARY OF THE
DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.
DECISION
BERSAMIN, J.:
For resolution are the consolidated petitions assailing the constitutionality of the Disbursement Acceleration
Program(DAP), National Budget Circular (NBC) No. 541, and related issuances of the Department of Budget and
Management (DBM) implementing the DAP.
At the core of the controversy is Section 29(1) of Article VI of the 1987 Constitution, a provision of the fundamental
law that firmly ordains that "[n]o money shall be paid out of the Treasury except in pursuance of an appropriation
made by law." The tenor and context of the challenges posed by the petitioners against the DAP indicate that the
DAP contravened this provision by allowing the Executive to allocate public money pooled from programmed and
unprogrammed funds of its various agencies in the guise of the President exercising his constitutional authority
under Section 25(5) of the 1987 Constitution to transfer funds out of savings to augment the appropriations of offices
within the Executive Branch of the Government. But the challenges are further complicated by the interjection of
allegations of transfer of funds to agencies or offices outside of the Executive.
Antecedents
What has precipitated the controversy?
On September 25, 2013, Sen. Jinggoy Ejercito Estrada delivered a privilege speech in the Senate of the Philippines
to reveal that some Senators, including himself, had been allotted an additional P50 Million each as "incentive" for
voting in favor of the impeachment of Chief Justice Renato C. Corona.
Responding to Sen. Estradas revelation, Secretary Florencio Abad of the DBM issued a public statement entitled
Abad: Releases to Senators Part of Spending Acceleration Program,1 explaining that the funds released to the
Senators had been part of the DAP, a program designed by the DBM to ramp up spending to accelerate economic
expansion. He clarified that the funds had been released to the Senators based on their letters of request for funding;
and that it was not the first time that releases from the DAP had been made because the DAP had already been
instituted in 2011 to ramp up spending after sluggish disbursements had caused the growth of the gross domestic
product (GDP) to slow down. He explained that the funds under the DAP were usually taken from (1) unreleased
appropriations under Personnel Services;2 (2) unprogrammed funds; (3) carry-over appropriations unreleased from
the previous year; and (4) budgets for slow-moving items or projects that had been realigned to support fasterdisbursing projects.
The DBM soon came out to claim in its website3 that the DAP releases had been sourced from savings generated by
the Government, and from unprogrammed funds; and that the savings had been derived from (1) the pooling of
unreleased appropriations, like unreleased Personnel Services4 appropriations that would lapse at the end of the
year, unreleased appropriations of slow-moving projects and discontinued projects per zero based budgeting
findings;5 and (2) the withdrawal of unobligated allotments also for slow-moving programs and projects that had
been earlier released to the agencies of the National Government.
The DBM listed the following as the legal bases for the DAPs use of savings,6 namely: (1) Section 25(5), Article VI
of the 1987 Constitution, which granted to the President the authority to augment an item for his office in the general
appropriations law; (2) Section 49 (Authority to Use Savings for Certain Purposes) and Section 38 (Suspension of
Expenditure Appropriations), Chapter 5, Book VI of Executive Order (EO) No. 292 (Administrative Code of 1987);
and (3) the General Appropriations Acts (GAAs) of 2011, 2012 and 2013, particularly their provisions on the (a) use
of savings; (b) meanings of savings and augmentation; and (c) priority in the use of savings.
As for the use of unprogrammed funds under the DAP, the DBM cited as legal bases the special provisions on
unprogrammed fund contained in the GAAs of 2011, 2012 and 2013.
The revelation of Sen. Estrada and the reactions of Sec. Abad and the DBM brought the DAP to the consciousness
of the Nation for the first time, and made this present controversy inevitable. That the issues against the DAP came
at a time when the Nation was still seething in anger over Congressional pork barrel "an appropriation of
government spending meant for localized projects and secured solely or primarily to bring money to a
representatives district"7 excited the Nation as heatedly as the pork barrel controversy.
Nine petitions assailing the constitutionality of the DAP and the issuances relating to the DAP were filed within days
of each other, as follows: G.R. No. 209135 (Syjuco), on October 7, 2013; G.R. No. 209136 (Luna), on October 7,
2013; G.R. No. 209155 (Villegas),8 on October 16, 2013; G.R. No. 209164 (PHILCONSA), on October 8, 2013; G.R.
No. 209260 (IBP), on October 16, 2013; G.R. No. 209287 (Araullo), on October 17, 2013; G.R. No. 209442
(Belgica), on October 29, 2013; G.R. No. 209517 (COURAGE), on November6, 2013; and G.R. No. 209569 (VACC),
on November 8, 2013.
In G.R. No. 209287 (Araullo), the petitioners brought to the Courts attention NBC No. 541 (Adoption of Operational
Efficiency Measure Withdrawal of Agencies Unobligated Allotments as of June 30, 2012), alleging that NBC No.
541, which was issued to implement the DAP, directed the withdrawal of unobligated allotments as of June 30, 2012
of government agencies and offices with low levels of obligations, both for continuing and current allotments.
In due time, the respondents filed their Consolidated Comment through the Office of the Solicitor General (OSG).
The Court directed the holding of oral arguments on the significant issues raised and joined.
Issues
E. Whether or not factual and legal justification exists to issue a temporary restraining order to restrain the
implementation of the DAP, NBC No. 541, and all other executive issuances allegedly implementing the DAP.
In its Consolidated Comment, the OSG raised the matter of unprogrammed funds in order to support its argument
regarding the Presidents power to spend. During the oral arguments, the propriety of releasing unprogrammed funds
to support projects under the DAP was considerably discussed. The petitioners in G.R. No. 209287 (Araullo) and
G.R. No. 209442 (Belgica) dwelled on unprogrammed funds in their respective memoranda. Hence, an additional
issue for the oral arguments is stated as follows:
F. Whether or not the release of unprogrammed funds under the DAP was in accord with the GAAs.
During the oral arguments held on November 19, 2013, the Court directed Sec. Abad to submit a list of savings
brought under the DAP that had been sourced from (a) completed programs; (b) discontinued or abandoned
programs; (c) unpaid appropriations for compensation; (d) a certified copy of the Presidents directive dated June 27,
2012 referred to in NBC No. 541; and (e) all circulars or orders issued in relation to the DAP.9
In compliance, the OSG submitted several documents, as follows:
Under the Advisory issued on November 14, 2013, the presentations of the parties during the oral arguments were
limited to the following, to wit:
(1) A certified copy of the Memorandum for the President dated June 25, 2012 (Omnibus Authority to
Consolidate Savings/Unutilized Balances and their Realignment);10
Procedural Issue:
(2) Circulars and orders, which the respondents identified as related to the DAP, namely:
A. Whether or not certiorari, prohibition, and mandamus are proper remedies to assail the constitutionality and
validity of the Disbursement Acceleration Program (DAP), National Budget Circular (NBC) No. 541, and all other
executive issuances allegedly implementing the DAP. Subsumed in this issue are whether there is a controversy ripe
for judicial determination, and the standing of petitioners.
a. NBC No. 528 dated January 3, 2011 (Guidelines on the Release of Funds for FY 2011);
b. NBC No. 535 dated December 29, 2011 (Guidelines on the Release of Funds for FY 2012);
Substantive Issues:
c. NBC No. 541 dated July 18, 2012 (Adoption of Operational Efficiency Measure Withdrawal
of Agencies Unobligated Allotments as of June 30, 2012);
B. Whether or not the DAP violates Sec. 29, Art. VI of the 1987 Constitution, which provides: "No money shall be
paid out of the Treasury except in pursuance of an appropriation made by law."
d. NBC No. 545 dated January 2, 2013 (Guidelines on the Release of Funds for FY 2013);
C. Whether or not the DAP, NBC No. 541, and all other executive issuances allegedly implementing the DAP violate
Sec. 25(5), Art. VI of the 1987 Constitution insofar as:
(a)They treat the unreleased appropriations and unobligated allotments withdrawn from
government agencies as "savings" as the term is used in Sec. 25(5), in relation to the provisions
of the GAAs of 2011, 2012 and 2013;
(b)They authorize the disbursement of funds for projects or programs not provided in the GAAs
for the Executive Department; and
(c)They "augment" discretionary lump sum appropriations in the GAAs.
D. Whether or not the DAP violates: (1) the Equal Protection Clause, (2) the system of checks and balances, and (3)
the principle of public accountability enshrined in the 1987 Constitution considering that it authorizes the release of
funds upon the request of legislators.
e. DBM Circular Letter No. 2004-2 dated January 26, 2004 (Budgetary Treatment of
Commitments/Obligations of the National Government);
f. COA-DBM Joint Circular No. 2013-1 dated March 15, 2013 (Revised Guidelines on the
Submission of Quarterly Accountability Reports on Appropriations, Allotments, Obligations and
Disbursements);
g. NBC No. 440 dated January 30, 1995 (Adoption of a Simplified Fund Release System in the
Government).
(3) A breakdown of the sources of savings, including savings from discontinued projects and unpaid
appropriations for compensation from 2011 to 2013
On January 28, 2014, the OSG, to comply with the Resolution issued on January 21, 2014 directing the respondents
to submit the documents not yet submitted in compliance with the directives of the Court or its Members, submitted
several evidence packets to aid the Court in understanding the factual bases of the DAP, to wit:
(1) First Evidence Packet11 containing seven memoranda issued by the DBM through Sec. Abad,
inclusive of annexes, listing in detail the 116 DAP identified projects approved and duly signed by the
President, as follows:
unprogrammed funds as provided in Special Provision No. 1 of Article XLV, Article XVI, and Article XLV of the 2011,
2012 and 2013 GAAs; and (2) A report on releases of savings of the Executive Department for the use of the
Constitutional Commissions and other branches of the Government, as well as the fund releases to the Senate and
the Commission on Elections (COMELEC).
a. Memorandum for the President dated October 12, 2011 (FY 2011 Proposed Disbursement
Acceleration Program (Projects and Sources of Funds);
RULING
b. Memorandum for the President dated December 12, 2011 (Omnibus Authority to Consolidate
Savings/Unutilized Balances and its Realignment);
I.
Procedural Issue:
c. Memorandum for the President dated June 25, 2012 (Omnibus Authority to Consolidate
Savings/Unutilized Balances and their Realignment);
d. Memorandum for the President dated September 4, 2012 (Release of funds for other priority
projects and expenditures of the Government);
e. Memorandum for the President dated December 19, 2012 (Proposed Priority Projects and
Expenditures of the Government);
f. Memorandum for the President dated May 20, 2013 (Omnibus Authority to Consolidate
Savings/Unutilized Balances and their Realignment to Fund the Quarterly Disbursement
Acceleration Program); and
g. Memorandum for the President dated September 25, 2013 (Funding for the Task Force Pablo
Rehabilitation Plan).
(2) Second Evidence Packet12 consisting of 15 applications of the DAP, with their corresponding Special
Allotment Release Orders (SAROs) and appropriation covers;
(3) Third Evidence Packet13 containing a list and descriptions of 12 projects under the DAP;
(4) Fourth Evidence Packet14 identifying the DAP-related portions of the Annual Financial Report (AFR)
of the Commission on Audit for 2011 and 2012;
(5) Fifth Evidence Packet15 containing a letter of Department of Transportation and
Communications(DOTC) Sec. Joseph Abaya addressed to Sec. Abad recommending the withdrawal of
funds from his agency, inclusive of annexes; and
(6) Sixth Evidence Packet16 a print-out of the Solicitor Generals visual presentation for the January 28,
2014 oral arguments.
On February 5, 2014,17 the OSG forwarded the Seventh Evidence Packet,18 which listed the sources of funds
brought under the DAP, the uses of such funds per project or activity pursuant to DAP, and the legal bases thereof.
On February 14, 2014, the OSG submitted another set of documents in further compliance with the Resolution dated
January 28, 2014, viz:
(1) Certified copies of the certifications issued by the Bureau of Treasury to the effect that the revenue collections
exceeded the original revenue targets for the years 2011, 2012 and 2013, including collections arising from sources
not considered in the original revenue targets, which certifications were required for the release of the
a) The petitions under Rule 65 are proper remedies

All the petitions are filed under Rule 65 of the Rules of Court, and include applications for the issuance of writs of
preliminary prohibitory injunction or temporary restraining orders. More specifically, the nature of the petitions is
individually set forth hereunder, to wit:
G.R. No. 209135 (Syjuco)
Certiorari, Prohibition and Mandamus
G.R. No. 209136 (Luna)
Certiorariand Prohibition
G.R. No. 209155 (Villegas)
G.R. No. 209164 (PHILCONSA)
G.R. No. 209260 (IBP)
Prohibition
G.R. No. 209287 (Araullo)
G.R. No. 209442 (Belgica)
Certiorari
G.R. No. 209517 (COURAGE)
Certiorari and Prohibition
G.R. No. 209569 (VACC)
Certiorari and Prohibition
The respondents submit that there is no actual controversy that is ripe for adjudication in the absence of adverse
claims between the parties;19 that the petitioners lacked legal standing to sue because no allegations were made to
the effect that they had suffered any injury as a result of the adoption of the DAP and issuance of NBC No. 541; that
their being taxpayers did not immediately confer upon the petitioners the legal standing to sue considering that the
adoption and implementation of the DAP and the issuance of NBC No. 541 were not in the exercise of the taxing or
spending power of Congress;20 and that even if the petitioners had suffered injury, there were plain, speedy and
adequate remedies in the ordinary course of law available to them, like assailing the regularity of the DAP and
related issuances before the Commission on Audit (COA) or in the trial courts.21
The respondents aver that the special civil actions of certiorari and prohibition are not proper actions for directly
assailing the constitutionality and validity of the DAP, NBC No. 541, and the other executive issuances implementing
the DAP.22
In their memorandum, the respondents further contend that there is no authorized proceeding under the Constitution
and the Rules of Court for questioning the validity of any law unless there is an actual case or controversy the
resolution of which requires the determination of the constitutional question; that the jurisdiction of the Court is
largely appellate; that for a court of law to pass upon the constitutionality of a law or any act of the Government when
there is no case or controversy is for that court to set itself up as a reviewer of the acts of Congress and of the
President in violation of the principle of separation of powers; and that, in the absence of a pending case or
controversy involving the DAP and NBC No. 541, any decision herein could amount to a mere advisory opinion that
no court can validly render.23
The respondents argue that it is the application of the DAP to actual situations that the petitioners can question either
in the trial courts or in the COA; that if the petitioners are dissatisfied with the ruling either of the trial courts or of the
COA, they can appeal the decision of the trial courts by petition for review on certiorari, or assail the decision or final
order of the COA by special civil action for certiorari under Rule 64 of the Rules of Court.24
government or any of its officials has acted without jurisdiction or in excess of jurisdiction, or so capriciously as to
constitute an abuse of discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial
power but a duty to pass judgmenton matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the duty to
settle matters of this nature, by claiming that such matters constitute a political question. (Bold emphasis supplied)26
The respondents arguments and submissions on the procedural issue are bereft of merit.
Upon interpellation by Commissioner Nolledo, Commissioner Concepcion clarified the scope of judicial power in the
following manner:
Section 1, Article VIII of the 1987 Constitution expressly provides:
MR. NOLLEDO. x x x
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established
by law.
The second paragraph of Section 1 states: "Judicial power includes the duty of courts of justice to settle actual
controversies" The term "actual controversies" according to the Commissioner should refer to questions which are
political in nature and, therefore, the courts should not refuse to decide those political questions. But do I understand
it right that this is restrictive or only an example? I know there are cases which are not actual yet the court can
assume jurisdiction. An example is the petition for declaratory relief.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
May I ask the Commissioners opinion about that?

Thus, the Constitution vests judicial power in the Court and in such lower courts as may be established by law. In
creating a lower court, Congress concomitantly determines the jurisdiction of that court, and that court, upon its
creation, becomes by operation of the Constitution one of the repositories of judicial power.25 However, only the
Court is a constitutionally created court, the rest being created by Congress in its exercise of the legislative power.
The Constitution states that judicial power includes the duty of the courts of justice not only "to settle actual
controversies involving rights which are legally demandable and enforceable" but also "to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government." It has thereby expanded the concept of judicial power, which up to then was
confined to its traditional ambit of settling actual controversies involving rights that were legally demandable and
enforceable.
The background and rationale of the expansion of judicial power under the 1987 Constitution were laid out during the
deliberations of the 1986 Constitutional Commission by Commissioner Roberto R. Concepcion (a former Chief
Justice of the Philippines) in his sponsorship of the proposed provisions on the Judiciary, where he said:
The Supreme Court, like all other courts, has one main function: to settle actual controversies involving conflicts of
rights which are demandable and enforceable. There are rights which are guaranteed by law but cannot be enforced
by a judicial party. In a decided case, a husband complained that his wife was unwilling to perform her duties as a
wife. The Court said: "We can tell your wife what her duties as such are and that she is bound to comply with them,
but we cannot force her physically to discharge her main marital duty to her husband. There are some rights
guaranteed by law, but they are so personal that to enforce them by actual compulsion would be highly derogatory to
human dignity." This is why the first part of the second paragraph of Section 1 provides that: Judicial power includes
the duty of courts to settle actual controversies involving rights which are legally demandable or enforceable
The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a presidential system of
government, the Supreme Court has, also, another important function. The powers of government are generally
considered divided into three branches: the Legislative, the Executive and the Judiciary. Each one is supreme within
its own sphere and independent of the others. Because of that supremacy power to determine whether a given law is
valid or not is vested in courts of justice.
Briefly stated, courts of justice determine the limits of power of the agencies and offices of the government as well as
those of its officers. In other words, the judiciary is the final arbiter on the question whether or not a branch of
MR. CONCEPCION. The Supreme Court has no jurisdiction to grant declaratory judgments.
MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power is not vested in the Supreme Court
alone but also in other lower courts as may be created by law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?
MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify political questions with jurisdictional
questions. But there is a difference.
MR. NOLLEDO. Because of the expression "judicial power"?
MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but where there is a question as to
whether the government had authority or had abused its authority to the extent of lacking jurisdiction or excess of
jurisdiction, that is not a political question. Therefore, the court has the duty to decide.27
Our previous Constitutions equally recognized the extent of the power of judicial review and the great responsibility
of the Judiciary in maintaining the allocation of powers among the three great branches of Government. Speaking for
the Court in Angara v. Electoral Commission,28 Justice Jose P. Laurel intoned:
x x x In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be
forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional
organ which can be called upon to determine the proper allocation of powers between the several department and
among the integral or constituent units thereof.
xxxx
The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of
such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And
when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other
department; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to
establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them.
This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review
under the Constitution. x x x29
What are the remedies by which the grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government may be determined under the Constitution?
The present Rules of Court uses two special civil actions for determining and correcting grave abuse of discretion
amounting to lack or excess of jurisdiction. These are the special civil actions for certiorari and prohibition, and both
are governed by Rule 65. A similar remedy of certiorari exists under Rule 64, but the remedy is expressly applicable
only to the judgments and final orders or resolutions of the Commission on Elections and the Commission on Audit.
The ordinary nature and function of the writ of certiorari in our present system are aptly explained in Delos Santos v.
Metropolitan Bank and Trust Company:30
In the common law, from which the remedy of certiorari evolved, the writ of certiorari was issued out of Chancery, or
the Kings Bench, commanding agents or officers of the inferior courts to return the record of a cause pending before
them, so as to give the party more sure and speedy justice, for the writ would enable the superior court to determine
from an inspection of the record whether the inferior courts judgment was rendered without authority. The errors
were of such a nature that, if allowed to stand, they would result in a substantial injury to the petitioner to whom no
other remedy was available. If the inferior court acted without authority, the record was then revised and corrected in
matters of law. The writ of certiorari was limited to cases in which the inferior court was said to be exceeding its
jurisdiction or was not proceeding according to essential requirements of law and would lie only to review judicial or
quasi-judicial acts.
The concept of the remedy of certiorari in our judicial system remains much the same as it has been in the common
law. In this jurisdiction, however, the exercise of the power to issue the writ of certiorari is largely regulated by laying
down the instances or situations in the Rules of Court in which a superior court may issue the writ of certiorari to an
inferior court or officer. Section 1, Rule 65 of the Rules of Court compellingly provides the requirements for that
purpose, viz:
xxxx
The sole office of the writ of certiorari is the correction of errors of jurisdiction, which includes the commission of
grave abuse of discretion amounting to lack of jurisdiction. In this regard, mere abuse of discretion is not enough to
warrant the issuance of the writ. The abuse of discretion must be grave, which means either that the judicial or quasijudicial power was exercised in an arbitrary or despotic manner by reason of passion or personal hostility, or that the
respondent judge, tribunal or board evaded a positive duty, or virtually refused to perform the duty enjoined or to act
in contemplation of law, such as when such judge, tribunal or board exercising judicial or quasi-judicial powers acted
in a capricious or whimsical manner as to be equivalent to lack of jurisdiction.31
Although similar to prohibition in that it will lie for want or excess of jurisdiction, certiorari is to be distinguished from
prohibition by the fact that it is a corrective remedy used for the re-examination of some action of an inferior tribunal,
and is directed to the cause or proceeding in the lower court and not to the court itself, while prohibition is a
preventative remedy issuing to restrain future action, and is directed to the court itself.32 The Court expounded on
the nature and function of the writ of prohibition in Holy Spirit Homeowners Association, Inc. v. Defensor:33
A petition for prohibition is also not the proper remedy to assail an IRR issued in the exercise of a quasi-legislative
function. Prohibition is an extraordinary writ directed against any tribunal, corporation, board, officer or person,
whether exercising judicial, quasi-judicial or ministerial functions, ordering said entity or person to desist from further
proceedings when said proceedings are without or in excess of said entitys or persons jurisdiction, or are
accompanied with grave abuse of discretion, and there is no appeal or any other plain, speedy and adequate remedy
in the ordinary course of law. Prohibition lies against judicial or ministerial functions, but not against legislative or
quasi-legislative functions. Generally, the purpose of a writ of prohibition is to keep a lower court within the limits of
its jurisdiction in order to maintain the administration of justice in orderly channels. Prohibition is the proper remedy
to afford relief against usurpation of jurisdiction or power by an inferior court, or when, in the exercise of jurisdiction in
handling matters clearly within its cognizance the inferior court transgresses the bounds prescribed to it by the law,
or where there is no adequate remedy available in the ordinary course of law by which such relief can be obtained.
Where the principal relief sought is to invalidate an IRR, petitioners remedy is an ordinary action for its nullification,
an action which properly falls under the jurisdiction of the Regional Trial Court. In any case, petitioners allegation
that "respondents are performing or threatening to perform functions without or in excess of their jurisdiction" may
appropriately be enjoined by the trial court through a writ of injunction or a temporary restraining order.
With respect to the Court, however, the remedies of certiorari and prohibition are necessarily broader in scope and
reach, and the writ of certiorari or prohibition may be issued to correct errors of jurisdiction committed not only by a
tribunal, corporation, board or officer exercising judicial, quasi-judicial or ministerial functions but also to set right,
undo and restrain any act of grave abuse of discretion amounting to lack or excess of jurisdiction by any branch or
instrumentality of the Government, even if the latter does not exercise judicial, quasi-judicial or ministerial functions.
This application is expressly authorized by the text of the second paragraph of Section 1, supra.
Thus, petitions for certiorari and prohibition are appropriate remedies to raise constitutional issues and to review
and/or prohibit or nullify the acts of legislative and executive officials.34
Necessarily, in discharging its duty under Section 1, supra, to set right and undo any act of grave abuse of discretion
amounting to lack or excess of jurisdiction by any branch or instrumentality of the Government, the Court is not at all
precluded from making the inquiry provided the challenge was properly brought by interested or affected parties. The
Court has been thereby entrusted expressly or by necessary implication with both the duty and the obligation of
determining, in appropriate cases, the validity of any assailed legislative or executive action. This entrustment is
consistent with the republican system of checks and balances.35
Following our recent dispositions concerning the congressional pork barrel, the Court has become more alert to
discharge its constitutional duty. We will not now refrain from exercising our expanded judicial power in order to
review and determine, with authority, the limitations on the Chief Executives spending power.
b) Requisites for the exercise of the
power of judicial review were
complied with
The requisites for the exercise of the power of judicial review are the following, namely: (1) there must bean actual
case or justiciable controversy before the Court; (2) the question before the Court must be ripe for adjudication; (3)
the person challenging the act must be a proper party; and (4) the issue of constitutionality must be raised at the
earliest opportunity and must be the very litis mota of the case.36
The first requisite demands that there be an actual case calling for the exercise of judicial power by the Court.37 An
actual case or controversy, in the words of Belgica v. Executive Secretary Ochoa:38
x x x is one which involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial
resolution as distinguished from a hypothetical or abstract difference or dispute. In other words, "[t]here must be a
contrariety of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence."
Related to the requirement of an actual case or controversy is the requirement of "ripeness," meaning that the
questions raised for constitutional scrutiny are already ripe for adjudication. "A question is ripe for adjudication when
the act being challenged has had a direct adverse effect on the individual challenging it. It is a prerequisite that
something had then been accomplished or performed by either branch before a court may come into the picture, and
the petitioner must allege the existence of an immediate or threatened injury to itself as a result of the challenged
action." "Withal, courts will decline to pass upon constitutional issues through advisory opinions, bereft as they are of
authority to resolve hypothetical or moot questions."
An actual and justiciable controversy exists in these consolidated cases. The incompatibility of the perspectives of
the parties on the constitutionality of the DAP and its relevant issuances satisfy the requirement for a conflict
between legal rights. The issues being raised herein meet the requisite ripeness considering that the challenged
executive acts were already being implemented by the DBM, and there are averments by the petitioners that such
implementation was repugnant to the letter and spirit of the Constitution. Moreover, the implementation of the DAP
entailed the allocation and expenditure of huge sums of public funds. The fact that public funds have been allocated,
disbursed or utilized by reason or on account of such challenged executive acts gave rise, therefore, to an actual
controversy that is ripe for adjudication by the Court.
It is true that Sec. Abad manifested during the January 28, 2014 oral arguments that the DAP as a program had
been meanwhile discontinued because it had fully served its purpose, saying: "In conclusion, Your Honors, may I
inform the Court that because the DAP has already fully served its purpose, the Administrations economic managers
have recommended its termination to the President. x x x."39
The Solicitor General then quickly confirmed the termination of the DAP as a program, and urged that its termination
had already mooted the challenges to the DAPs constitutionality, viz:
DAP as a program, no longer exists, thereby mooting these present cases brought to challenge its constitutionality.
Any constitutional challenge should no longer be at the level of the program, which is now extinct, but at the level of
its prior applications or the specific disbursements under the now defunct policy. We challenge the petitioners to pick
and choose which among the 116 DAP projects they wish to nullify, the full details we will have provided by February
5. We urge this Court to be cautious in limiting the constitutional authority of the President and the Legislature to
respond to the dynamic needs of the country and the evolving demands of governance, lest we end up straight
jacketing our elected representatives in ways not consistent with our constitutional structure and democratic
principles.40
A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events,
so that a declaration thereon would be of no practical use or value.41
The Court cannot agree that the termination of the DAP as a program was a supervening event that effectively
mooted these consolidated cases. Verily, the Court had in the past exercised its power of judicial review despite the
cases being rendered moot and academic by supervening events, like: (1) when there was a grave violation of the
Constitution; (2) when the case involved a situation of exceptional character and was of paramount public interest;
(3) when the constitutional issue raised required the formulation of controlling principles to guide the Bench, the Bar
and the public; and (4) when the case was capable of repetition yet evading review.42
Assuming that the petitioners several submissions against the DAP were ultimately sustained by the Court here,
these cases would definitely come under all the exceptions. Hence, the Court should not abstain from exercising its
power of judicial review.
Did the petitioners have the legal standing to sue?
Legal standing, as a requisite for the exercise of judicial review, refers to "a right of appearance in a court of justice
on a given question."43 The concept of legal standing, or locus standi, was particularly discussed in De Castro v.
Judicial and Bar Council,44 where the Court said:
In public or constitutional litigations, the Court is often burdened with the determination of the locus standi of the
petitioners due to the ever-present need to regulate the invocation of the intervention of the Court to correct any
official action or policy in order to avoid obstructing the efficient functioning of public officials and offices involved in
public service. It is required, therefore, that the petitioner must have a personal stake in the outcome of the
controversy, for, as indicated in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:
The question on legal standing is whether such parties have "alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court
so largely depends for illumination of difficult constitutional questions." Accordingly, it has been held that the interest
of a person assailing the constitutionality of a statute must be direct and personal. He must be able to show, not only
that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some
direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It must
appear that the person complaining has been or is about to be denied some right or privilege to which he is lawfully
entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained
of.
It is true that as early as in 1937, in People v. Vera, the Court adopted the direct injury test for determining whether a
petitioner in a public action had locus standi. There, the Court held that the person who would assail the validity of a
statute must have "a personal and substantial interest in the case such that he has sustained, or will sustain direct
injury as a result." Vera was followed in Custodio v. President of the Senate, Manila Race Horse Trainers Association
v. De la Fuente, Anti-Chinese League of the Philippines v. Felix, and Pascual v. Secretary of Public Works.
Yet, the Court has also held that the requirement of locus standi, being a mere procedural technicality, can be waived
by the Court in the exercise of its discretion. For instance, in 1949, in Araneta v. Dinglasan, the Court liberalized the
approach when the cases had "transcendental importance." Some notable controversies whose petitioners did not
pass the direct injury test were allowed to be treated in the same way as in Araneta v. Dinglasan.
In the 1975 decision in Aquino v. Commission on Elections, this Court decided to resolve the issues raised by the
petition due to their "far reaching implications," even if the petitioner had no personality to file the suit. The liberal
approach of Aquino v. Commission on Elections has been adopted in several notable cases, permitting ordinary
citizens, legislators, and civic organizations to bring their suits involving the constitutionality or validity of laws,
regulations, and rulings.
However, the assertion of a public right as a predicate for challenging a supposedly illegal or unconstitutional
executive or legislative action rests on the theory that the petitioner represents the public in general. Although such
petitioner may not be as adversely affected by the action complained against as are others, it is enough that he
sufficiently demonstrates in his petition that he is entitled to protection or relief from the Court in the vindication of a
public right.
Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to gain locus standi. That is not
surprising, for even if the issue may appear to concern only the public in general, such capacities nonetheless equip
the petitioner with adequate interest to sue. In David v. Macapagal-Arroyo, the Court aptly explains why:
Case law in most jurisdiction snow allows both "citizen" and "taxpayer" standing in public actions. The distinction was
first laid down in Beauchamp v. Silk, where it was held that the plaintiff in a taxpayers suit is in a different category
from the plaintiff in a citizens suit. In the former, the plaintiff is affected by the expenditure of public funds, while in
the latter, he is but the mere instrument of the public concern. As held by the New York Supreme Court in People ex
rel Case v. Collins: "In matter of mere public right, howeverthe people are the real partiesIt is at least the right, if
not the duty, of every citizen to interfere and see that a public offence be properly pursued and punished, and that a
public grievance be remedied." With respect to taxpayers suits, Terr v. Jordan held that "the right of a citizen and a
taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be denied."45
The Court has cogently observed in Agan, Jr. v. Philippine International Air Terminals Co., Inc.46 that "[s]tanding is a
peculiar concept in constitutional law because in some cases, suits are not brought by parties who have been
personally injured by the operation of a law or any other government act but by concerned citizens, taxpayers or
voters who actually sue in the public interest."
Except for PHILCONSA, a petitioner in G.R. No. 209164, the petitioners have invoked their capacities as taxpayers
who, by averring that the issuance and implementation of the DAP and its relevant issuances involved the illegal
disbursements of public funds, have an interest in preventing the further dissipation of public funds. The petitioners in
G.R. No. 209287 (Araullo) and G.R. No. 209442 (Belgica) also assert their right as citizens to sue for the
enforcement and observance of the constitutional limitations on the political branches of the Government.47
On its part, PHILCONSA simply reminds that the Court has long recognized its legal standing to bring cases upon
constitutional issues.48 Luna, the petitioner in G.R. No. 209136, cites his additional capacity as a lawyer. The IBP,
the petitioner in G.R. No. 209260, stands by "its avowed duty to work for the rule of law and of paramount
importance of the question in this action, not to mention its civic duty as the official association of all lawyers in this
country."49
Under their respective circumstances, each of the petitioners has established sufficient interest in the outcome of the
controversy as to confer locus standi on each of them.
In addition, considering that the issues center on the extent of the power of the Chief Executive to disburse and
allocate public funds, whether appropriated by Congress or not, these cases pose issues that are of transcendental
importance to the entire Nation, the petitioners included. As such, the determination of such important issues call for
the Courts exercise of its broad and wise discretion "to waive the requirement and so remove the impediment to its
addressing and resolving the serious constitutional questions raised."50
II.
Substantive Issues
1.
Overview of the Budget System
An understanding of the Budget System of the Philippines will aid the Court in properly appreciating and justly
resolving the substantive issues.
a) Origin of the Budget System
The term "budget" originated from the Middle English word bouget that had derived from the Latin word bulga (which
means bag or purse).51
In the Philippine setting, Commonwealth Act (CA) No. 246 (Budget Act) defined "budget" as the financial program of
the National Government for a designated fiscal year, consisting of the statements of estimated receipts and
expenditures for the fiscal year for which it was intended to be effective based on the results of operations during the
preceding fiscal years. The term was given a different meaning under Republic Act No. 992 (Revised Budget Act) by
describing the budget as the delineation of the services and products, or benefits that would accrue to the public
together with the estimated unit cost of each type of service, product or benefit.52 For a forthright definition, budget
should simply be identified as the financial plan of the Government,53 or "the master plan of government."54
The concept of budgeting has not been the product of recent economies. In reality, financing public goals and
activities was an idea that existed from the creation of the State.55 To protect the people, the territory and
sovereignty of the State, its government must perform vital functions that required public expenditures. At the
beginning, enormous public expenditures were spent for war activities, preservation of peace and order, security,
administration of justice, religion, and supply of limited goods and services.56 In order to finance those expenditures,
the State raised revenues through taxes and impositions.57 Thus, budgeting became necessary to allocate public
revenues for specific government functions.58 The States budgeting mechanism eventually developed through the
years with the growing functions of its government and changes in its market economy.
The Philippine Budget System has been greatly influenced by western public financial institutions. This is because of
the countrys past as a colony successively of Spain and the United States for a long period of time. Many aspects of
the countrys public fiscal administration, including its Budget System, have been naturally patterned after the
practices and experiences of the western public financial institutions. At any rate, the Philippine Budget System is
presently guided by two principal objectives that are vital to the development of a progressive democratic
government, namely: (1) to carry on all government activities under a comprehensive fiscal plan developed,
authorized and executed in accordance with the Constitution, prevailing statutes and the principles of sound public
management; and (2) to provide for the periodic review and disclosure of the budgetary status of the Government in
such detail so that persons entrusted by law with the responsibility as well as the enlightened citizenry can determine
the adequacy of the budget actions taken, authorized or proposed, as well as the true financial position of the
Government.59
b) Evolution of the Philippine Budget System
The budget process in the Philippines evolved from the early years of the American Regime up to the passage of the
Jones Law in 1916. A Budget Office was created within the Department of Finance by the Jones Law to discharge
the budgeting function, and was given the responsibility to assist in the preparation of an executive budget for
submission to the Philippine Legislature.60
As early as under the 1935 Constitution, a budget policy and a budget procedure were established, and
subsequently strengthened through the enactment of laws and executive acts.61 EO No. 25, issued by President
Manuel L. Quezon on April 25, 1936, created the Budget Commission to serve as the agency that carried out the
Presidents responsibility of preparing the budget.62 CA No. 246, the first budget law, went into effect on January 1,
1938 and established the Philippine budget process. The law also provided a line-item budget as the framework of
the Governments budgeting system,63 with emphasis on the observance of a "balanced budget" to tie up proposed
expenditures with existing revenues.
CA No. 246 governed the budget process until the passage on June 4, 1954 of Republic Act (RA) No. 992,whereby
Congress introduced performance-budgeting to give importance to functions, projects and activities in terms of
expected results.64 RA No. 992 also enhanced the role of the Budget Commission as the fiscal arm of the
Government.65
The 1973 Constitution and various presidential decrees directed a series of budgetary reforms that culminated in the
enactment of PD No. 1177 that President Marcos issued on July30, 1977, and of PD No. 1405, issued on June 11,
1978. The latter decree converted the Budget Commission into the Ministry of Budget, and gave its head the rank of
a Cabinet member.
The Ministry of Budget was later renamed the Office of Budget and Management (OBM) under EO No. 711. The
OBM became the DBM pursuant to EO No. 292 effective on November 24, 1989.
c) The Philippine Budget Cycle66
Four phases comprise the Philippine budget process, specifically: (1) Budget Preparation; (2) Budget Legislation; (3)
Budget Execution; and (4) Accountability. Each phase is distinctly separate from the others but they overlap in the
implementation of the budget during the budget year.
c.1.Budget Preparation67
The budget preparation phase is commenced through the issuance of a Budget Call by the DBM. The Budget Call
contains budget parameters earlier set by the Development Budget Coordination Committee (DBCC) as well as
policy guidelines and procedures to aid government agencies in the preparation and submission of their budget
proposals. The Budget Call is of two kinds, namely: (1) a National Budget Call, which is addressed to all agencies,
including state universities and colleges; and (2) a Corporate Budget Call, which is addressed to all governmentowned and -controlled corporations (GOCCs) and government financial institutions (GFIs).
Following the issuance of the Budget Call, the various departments and agencies submit their respective Agency
Budget Proposals to the DBM. To boost citizen participation, the current administration has tasked the various
departments and agencies to partner with civil society organizations and other citizen-stakeholders in the preparation
of the Agency Budget Proposals, which proposals are then presented before a technical panel of the DBM in
scheduled budget hearings wherein the various departments and agencies are given the opportunity to defend their
budget proposals. DBM bureaus thereafter review the Agency Budget Proposals and come up with
recommendations for the Executive Review Board, comprised by the DBM Secretary and the DBMs senior officials.
The discussions of the Executive Review Board cover the prioritization of programs and their corresponding support
vis--vis the priority agenda of the National Government, and their implementation.
The DBM next consolidates the recommended agency budgets into the National Expenditure Program (NEP)and a
Budget of Expenditures and Sources of Financing (BESF). The NEP provides the details of spending for each
department and agency by program, activity or project (PAP), and is submitted in the form of a proposed GAA. The
Details of Selected Programs and Projects is the more detailed disaggregation of key PAPs in the NEP, especially
those in line with the National Governments development plan. The Staffing Summary provides the staffing
complement of each department and agency, including the number of positions and amounts allocated.
The NEP and BESF are thereafter presented by the DBM and the DBCC to the President and the Cabinet for further
refinements or reprioritization. Once the NEP and the BESF are approved by the President and the Cabinet, the
DBM prepares the budget documents for submission to Congress. The budget documents consist of: (1) the
Presidents Budget Message, through which the President explains the policy framework and budget priorities; (2)
the BESF, mandated by Section 22, Article VII of the Constitution,68 which contains the macroeconomic
assumptions, public sector context, breakdown of the expenditures and funding sources for the fiscal year and the
two previous years; and (3) the NEP.
Public or government expenditures are generally classified into two categories, specifically: (1) capital expenditures
or outlays; and (2) current operating expenditures. Capital expenditures are the expenses whose usefulness lasts for
more than one year, and which add to the assets of the Government, including investments in the capital of
government-owned or controlled corporations and their subsidiaries.69 Current operating expenditures are the
purchases of goods and services in current consumption the benefit of which does not extend beyond the fiscal
year.70 The two components of current expenditures are those for personal services (PS), and those for
maintenance and other operating expenses(MOOE).
Public expenditures are also broadly grouped according to their functions into: (1) economic development
expenditures (i.e., expenditures on agriculture and natural resources, transportation and communications, commerce
and industry, and other economic development efforts);71 (2) social services or social development expenditures
(i.e., government outlay on education, public health and medicare, labor and welfare and others);72 (3) general
government or general public services expenditures (i.e., expenditures for the general government, legislative
services, the administration of justice, and for pensions and gratuities);73 (4) national defense expenditures (i.e.,
sub-divided into national security expenditures and expenditures for the maintenance of peace and order);74 and (5)
public debt.75
Public expenditures may further be classified according to the nature of funds, i.e., general fund, special fund or
bond fund.76
On the other hand, public revenues complement public expenditures and cover all income or receipts of the
government treasury used to support government expenditures.77
Classical economist Adam Smith categorized public revenues based on two principal sources, stating: "The revenue
which must defraythe necessary expenses of government may be drawn either, first from some fund which
peculiarly belongs to the sovereign or commonwealth, and which is independent of the revenue of the people, or,
secondly, from the revenue of the people."78 Adam Smiths classification relied on the two aspects of the nature of
the State: first, the State as a juristic person with an artificial personality, and, second, the State as a sovereign or
entity possessing supreme power. Under the first aspect, the State could hold property and engage in trade, thereby
deriving what is called its quasi private income or revenues, and which "peculiarly belonged to the sovereign." Under
the second aspect, the State could collect by imposing charges on the revenues of its subjects in the form of
taxes.79
In the Philippines, public revenues are generally derived from the following sources, to wit: (1) tax revenues(i.e.,
compulsory contributions to finance government activities); 80 (2) capital revenues(i.e., proceeds from sales of fixed
capital assets or scrap thereof and public domain, and gains on such sales like sale of public lands, buildings and
other structures, equipment, and other properties recorded as fixed assets); 81 (3) grants(i.e., voluntary contributions
and aids given to the Government for its operation on specific purposes in the form of money and/or materials, and
do not require any monetary commitment on the part of the recipient);82 (4) extraordinary income(i.e., repayment of
loans and advances made by government corporations and local governments and the receipts and shares in
income of the Banko Sentral ng Pilipinas, and other receipts);83 and (5) public borrowings(i.e., proceeds of
repayable obligations generally with interest from domestic and foreign creditors of the Government in general,
including the National Government and its political subdivisions).84
More specifically, public revenues are classified as follows:85
General Income
Specific Income
Subsidy Income from National

Government
Income Taxes
Subsidy from Central Office
Taxes on Goods and Services
Subsidy from Regional

Office/Staff Bureaus
Taxes on International Trade and

Transactions
Income from Government

Services
Other Taxes 6.Fines and Penalties-Tax Revenue
Income from Government

Business Operations
Sales Revenue
Rent Income
Insurance Income
Dividend Income
Interest Income
Sale of Confiscated Goods and
Properties
Foreign Exchange (FOREX)
Gains
Miscellaneous Operating and
Service Income
Fines and Penalties-Government
Services and Business Operations
Income from Grants and
Donations
c.2. Budget Legislation86
Property Taxes
Other Specific Income
The Budget Legislation Phase covers the period commencing from the time Congress receives the Presidents
Budget, which is inclusive of the NEPand the BESF, up to the Presidents approval of the GAA. This phase is also
known as the Budget Authorization Phase, and involves the significant participation of the Legislative through its
deliberations.
Initially, the Presidents Budget is assigned to the House of Representatives Appropriations Committee on First
Reading. The Appropriations Committee and its various Sub-Committees schedule and conduct budget hearings to
examine the PAPs of the departments and agencies. Thereafter, the House of Representatives drafts the General
Appropriations Bill (GAB).87
The GABis sponsored, presented and defended by the House of Representatives Appropriations Committee and
Sub-Committees in plenary session. As with other laws, the GAB is approved on Third Reading before the House of
Representatives version is transmitted to the Senate.88
After transmission, the Senate conducts its own committee hearings on the GAB. To expedite proceedings, the
Senate may conduct its committee hearings simultaneously with the House of Representatives deliberations. The
Senates Finance Committee and its Sub-Committees may submit the proposed amendments to the GAB to the
plenary of the Senate only after the House of Representatives has formally transmitted its version to the Senate. The
Senate version of the GAB is likewise approved on Third Reading.89
The House of Representatives and the Senate then constitute a panel each to sit in the Bicameral Conference
Committee for the purpose of discussing and harmonizing the conflicting provisions of their versions of the GAB. The
"harmonized" version of the GAB is next presented to the President for approval.90 The President reviews the GAB,
and prepares the Veto Message where budget items are subjected to direct veto,91 or are identified for conditional
implementation.
If, by the end of any fiscal year, the Congress shall have failed to pass the GAB for the ensuing fiscal year, the GAA
for the preceding fiscal year shall be deemed re-enacted and shall remain in force and effect until the GAB is passed
by the Congress.92
c.3. Budget Execution93
With the GAA now in full force and effect, the next step is the implementation of the budget. The Budget Execution
Phase is primarily the function of the DBM, which is tasked to perform the following procedures, namely: (1) to issue
the programs and guidelines for the release of funds; (2) to prepare an Allotment and Cash Release Program; (3) to
release allotments; and (4) to issue disbursement authorities.
The implementation of the GAA is directed by the guidelines issued by the DBM. Prior to this, the various
departments and agencies are required to submit Budget Execution Documents(BED) to outline their plans and
performance targets by laying down the physical and financial plan, the monthly cash program, the estimate of
monthly income, and the list of obligations that are not yet due and demandable.
Thereafter, the DBM prepares an Allotment Release Program (ARP)and a Cash Release Program (CRP).The ARP
sets a limit for allotments issued in general and to a specific agency. The CRP fixes the monthly, quarterly and
annual disbursement levels.
Allotments, which authorize an agency to enter into obligations, are issued by the DBM. Allotments are lesser in
scope than appropriations, in that the latter embrace the general legislative authority to spend. Allotments may be
released in two forms through a comprehensive Agency Budget Matrix (ABM),94 or, individually, by SARO.95
Armed with either the ABM or the SARO, agencies become authorized to incur obligations96 on behalf of the
Government in order to implement their PAPs. Obligations may be incurred in various ways, like hiring of personnel,
entering into contracts for the supply of goods and services, and using utilities.
In order to settle the obligations incurred by the agencies, the DBM issues a disbursement authority so that cash
may be allocated in payment of the obligations. A cash or disbursement authority that is periodically issued is
referred to as a Notice of Cash Allocation (NCA),97 which issuance is based upon an agencys submission of its
Monthly Cash Program and other required documents. The NCA specifies the maximum amount of cash that can be
withdrawn from a government servicing bank for the period indicated. Apart from the NCA, the DBM may issue a
Non-Cash Availment Authority(NCAA) to authorize non-cash disbursements, or a Cash Disbursement Ceiling(CDC)
for departments with overseas operations to allow the use of income collected by their foreign posts for their
operating requirements.
Actual disbursement or spending of government funds terminates the Budget Execution Phase and is usually
accomplished through the Modified Disbursement Scheme under which disbursements chargeable against the
National Treasury are coursed through the government servicing banks.
c.4. Accountability98
Accountability is a significant phase of the budget cycle because it ensures that the government funds have been
effectively and efficiently utilized to achieve the States socio-economic goals. It also allows the DBM to assess the
performance of agencies during the fiscal year for the purpose of implementing reforms and establishing new
policies.
An agencys accountability may be examined and evaluated through (1) performance targets and outcomes; (2)
budget accountability reports; (3) review of agency performance; and (4) audit conducted by the Commission on
Audit(COA).
2.
Nature of the DAP as a fiscal plan
a. DAP was a program designed to
promote economic growth
Policy is always a part of every budget and fiscal decision of any Administration.99 The national budget the
Executive prepares and presents to Congress represents the Administrations "blueprint for public policy" and reflects
the Governments goals and strategies.100 As such, the national budget becomes a tangible representation of the
programs of the Government in monetary terms, specifying therein the PAPs and services for which specific amounts
of public funds are proposed and allocated.101 Embodied in every national budget is government spending.102
When he assumed office in the middle of 2010, President Aquino made efficiency and transparency in government
spending a significant focus of his Administration. Yet, although such focus resulted in an improved fiscal deficit of
0.5% in the gross domestic product (GDP) from January to July of 2011, it also unfortunately decelerated
government project implementation and payment schedules.103 The World Bank observed that the Philippines
economic growth could be reduced, and potential growth could be weakened should the Government continue with
its underspending and fail to address the large deficiencies in infrastructure.104 The economic situation prevailing in
the middle of 2011 thus paved the way for the development and implementation of the DAP as a stimulus package
intended to fast-track public spending and to push economic growth by investing on high-impact budgetary PAPs to
be funded from the "savings" generated during the year as well as from unprogrammed funds.105 In that respect,
the DAP was the product of "plain executive policy-making" to stimulate the economy by way of accelerated
spending.106The Administration would thereby accelerate government spending by: (1) streamlining the
implementation process through the clustering of infrastructure projects of the Department of Public Works and
Highways (DPWH) and the Department of Education (DepEd),and (2) front loading PPP-related projects107 due for
implementation in the following year.108
Appropriations
FY 2011 but may be

pooled as savings and
realigned for priority
programs that require
immediate funding
Did the stimulus package work?
for the 2011

Disbursement
Acceleration
Program
The March 2012 report of the World Bank,109 released after the initial implementation of the DAP, revealed that the
DAP was partially successful. The disbursements under the DAP contributed 1.3 percentage points to GDP growth
by the fourth quarter of 2011.110 The continued implementation of the DAP strengthened growth by 11.8% year on
year while infrastructure spending rebounded from a 29% contraction to a 34% growth as of September 2013.111
FY 2011
Unreleased
Appropriations
482
The DAP thus proved to be a demonstration that expenditure was a policy instrument that the Government could use
to direct the economies towards growth and development.112 The Government, by spending on public infrastructure,
would signify its commitment of ensuring profitability for prospective investors.113 The PAPs funded under the DAP
were chosen for this reason based on their: (1) multiplier impact on the economy and infrastructure development; (2)
beneficial effect on the poor; and (3) translation into disbursements.114
FY 2010
Unprogrammed
Fund
12,336
Supported by the GFI

Dividends
Approve and
authorize its use
for the 2011
Disbursement
Acceleration
Program
FY 2010
Carryover
Appropriation
21,544
Unreleased
appropriations (slow
moving projects and
programs for
discontinuance) and
savings from Zero-based Budgeting
Initiative
With prior
approval from
the President in
November 2010
to declare as
savings and with
authority to use
for priority
projects
FY 2011 Budget
items for
realignment
7,748
FY 2011 Agency
Budget items that can
be realigned within the
agency to fund new fast
disbursing projects
DPWH-3.981 Billion
DA 2.497 Billion
DOT 1.000 Billion
DepEd 270 Million
For information
Unreleased
appropriations (slow
moving projects and
programs for
discontinuance)
b. History of the implementation of

the DAP, and sources of funds
under the DAP
How the Administrations economic managers conceptualized and developed the DAP, and finally presented it to the
President remains unknown because the relevant documents appear to be scarce.
The earliest available document relating to the genesis of the DAP was the memorandum of October 12,2011 from
Sec. Abad seeking the approval of the President to implement the proposed DAP. The memorandum, which
contained a list of the funding sources for P72.11 billion and of the proposed priority projects to be funded,115 reads:
MEMORANDUM FOR THE PRESIDENT
xxxx
SUBJECT: FY 2011 PROPOSED DISBURSEMENT ACCELERATION PROGRAM (PROJECTS AND SOURCES OF
FUNDS)
DATE: OCTOBER 12, 2011
Mr. President, this is to formally confirm your approval of the Disbursement Acceleration Program totaling P72.11
billion. We are already working with all the agencies concerned for the immediate execution of the projects therein.
A. Fund Sources for the Acceleration Program
Fund Sources
FY 2011
Unreleased
Personal
Services (PS)
Amount
(In million
Php)
30,000
TOTAL
72.110
B. Projects in the Disbursement Acceleration Program

(Descriptions of projects attached as Annex A)
Description
Action
Requested
GOCCs and GFIs
Unreleased Personnel
Services (PS)
appropriations which
will lapse at the end of
Declare as
savings and
approve/
authorize its use
Agency/Project
(SARO and NCA Release)
1. LRTA: Rehabilitation of LRT 1 and 2
Allotment
(in Million Php)
1,868
2. NHA:
a. Resettlement of North Triangle residents to
Camarin A7
b. Housing for BFP/BJMP
c. On-site development for families living
along dangerous
d. Relocation sites for informal settlers
along Iloilo River and its tributaries
3. PHIL. HEART CENTER: Upgrading of
ageing physical plant and medical equipment
11,050
450
a. Pediatric Pulmonary Program

b. Bio-regenerative Technology Program
(Stem-Cell Research subject to legal
review and presentation)
35
70
500
10,000
100
570
12. TIDCORP: NG Equity infusion
357
TOTAL
26,945
75
NGAs/LGUs
4. CREDIT INFO CORP: Establishment of

centralized credit information system
Agency/Project
Allotment
(SARO)
(In Million
Php)
Cash
Requirement
(NCA)
13. DOF-BIR: NPSTAR

centralization of data
processing and others (To be
synchronized with GFMIS
activities)
758
758
14. COA: IT infrastructure

program and hiring of
additional litigational experts
144
144
15. DND-PAF: On Base Housing

Facilities and Communication
Equipment
30
30
2,959
2,223
1,629
1,629
919
183
411
411
1,293
1,293
1,293
132
5,432
625
625
100
5. PIDS: purchase of land to relocate the PIDS
office and building construction
400
6. HGC: Equity infusion for credit insurance
and mortgage guaranty operations of HGC
7. PHIC: Obligations incurred (premium

subsidy for indigent families) in January-June
2010, booked for payment in Jul[y] Dec
2010. The delay in payment is due to the
delay in the certification of the LGU
counterpart. Without it, the NG is obliged to
pay the full amount.
1,496
8. Philpost: Purchase of foreclosed property.

Payment of Mandatory Obligations, (GSIS,
PhilHealth, ECC), Franking Privilege
644
10,000
9. BSP: First equity infusion out of Php 40B
capitalization under the BSP Law
280
10. PCMC: Capital and Equipment Renovation
11. LCOP:
16. DA:
a. Irrigation, FMRs and
Integrated Community Based Multi-Species
Hatchery and Aquasilvi
Farming
b. Mindanao Rural
Development Project
c. NIA Agno River Integrated
Irrigation Project
17. DAR:
a. Agrarian Reform
Communities Project 2
b. Landowners Compensation
18. DBM: Conduct of National
Survey of
Farmers/Fisherfolks/Ips
105
19. DOJ: Operating requirements

of 50 investigation agents and
15 state attorneys
20. DOT: Preservation of the Cine
Corregidor Complex
21. OPAPP: Activities for Peace
Process (PAMANA- Project
details: budget breakdown,
implementation plan, and
conditions on fund release
attached as Annex B)
22. DOST
a. Establishment of National
Meterological and Climate
Center
b. Enhancement of Doppler
Radar Network for National
Weather Watch, Accurate
Forecasting and Flood Early
Warning
23. DOF-BOC: To settle the
principal obligations with
PDIC consistent with the
agreement with the CISS and
SGS
11
25
1,819
425
425
275
275
31. DOTC-MRT: Purchase of

additional MRT cars
4,500
32. LGU Support Fund
6,500
6,500
33. Various Other Local Projects
6,500
6,500
750
750
45,165
44,000
34. Development Assistance to the

Province of Quezon
TOTAL
C. Summary
Fund Sources
Identified for
Approval
(In Million
Php)
Allotments
for Release
Cash
Requirements for
Release in FY
2011
72,110
70,895
GOCCs
26,895
26,895
NGAs/LGUs
45,165
44,000
190
Total
2,800
2,800
20
20
25. DPWH: Various infrastructure

projects
5,500
5,500
72,110
For His Excellencys Consideration

(Sgd.) FLORENCIO B. ABAD
[/] APPROVED
26. DepEd/ERDT/DOST: Thin

Client Cloud Computing
Project
270
270
27. DOH: Hiring of nurses and

midwives
294
294
29. DILG: Performance Challenge

Fund (People Empowered
Community Driven
Development with DSWD and
NAPC)
8,592
25
24. OEO-FDCP: Establishment of

the National Film Archive and
local cinematheques, and other
local activities
28. TESDA: Training Program in

partnership with BPO industry
and other sectors
8,592
11
1,819
190
30. ARMM: Comprehensive Peace

and Development Intervention
[ ] DISAPPROVED
(Sgd.) H.E. BENIGNO S. AQUINO, III
OCT 12, 2011
1,100
1,100
250
50
The memorandum of October 12, 2011 was followed by another memorandum for the President dated December 12,
2011116 requesting omnibus authority to consolidate the savings and unutilized balances for fiscal year 2011.
Pertinent portions of the memorandum of December 12, 2011 read:
MEMORANDUM FOR THE PRESIDENT
xxxx
SUBJECT: Omnibus Authority to Consolidate Savings/Unutilized Balances and its Realignment
5.1 The 2010 Continuing Appropriations (pooled savings) is proposed to be spent for
the projects that we have identified to be immediate actual disbursements considering
that this same fund source will expire on December 31, 2011.
DATE: December 12, 2011
5.2 With respect to the proposed expenditure items to be funded from the FY 2011
Unreleased Appropriations, most of these are the same projects for which the DBM is
directed by the Office of the President, thru the Executive Secretary, to source funds.
This is to respectfully request for the grant of Omnibus Authority to consolidate savings/unutilized balances in FY
2011 corresponding to completed or discontinued projects which may be pooled to fund additional projects or
expenditures.
6.0 Among others, the following are such proposed additional projects that have been chosen
given their multiplier impact on economy and infrastructure development, their beneficial effect
on the poor, and their translation into disbursements. Please note that we have classified the list
of proposed projects as follows:
In addition, Mr. President, this measure will allow us to undertake projects even if their implementation carries over to
2012 without necessarily impacting on our budget deficit cap next year.
BACKGROUND
7.0 x x x
1.0 The DBM, during the course of performance reviews conducted on the agencies operations,
particularly on the implementation of their projects/activities, including expenses incurred in
undertaking the same, have identified savings out of the 2011 General Appropriations Act. Said
savings correspond to completed or discontinued projects under certain departments/agencies
which may be pooled, for the following:
FOR THE PRESIDENTS APPROVAL

8.0 Foregoing considered, may we respectfully request for the Presidents approval for the
following:
1.1 to provide for new activities which have not been anticipated during preparation of
the budget;
8.1 Grant of omnibus authority to consolidate FY 2011 savings/unutilized balances

and its realignment; and
1.2 to augment additional requirements of on-going priority projects; and

8.2 The proposed additional projects identified for funding.
1.3 to provide for deficiencies under the Special Purpose Funds, e.g., PDAF, Calamity
Fund, Contingent Fund
1.4 to cover for the modifications of the original allotment class allocation as a result of
on-going priority projects and implementation of new activities
For His Excellencys consideration and approval.

(Sgd.)
[/] APPROVED
2.0 x x x x
[ ] DISAPPROVED
2.1 x x x
(Sgd.) H.E. BENIGNO S. AQUINO, III
2.2 x x x
DEC 21, 2011
ON THE UTILIZATION OF POOLED SAVINGS
3.0 It may be recalled that the President approved our request for omnibus authority to pool
savings/unutilized balances in FY 2010 last November 25, 2010.
4.0 It is understood that in the utilization of the pooled savings, the DBM shall secure the
corresponding approval/confirmation of the President. Furthermore, it is assured that the
proposed realignments shall be within the authorized Expenditure level.
5.0 Relative thereto, we have identified some expenditure items that may be sourced from the
said pooled appropriations in FY 2010 that will expire on December 31, 2011 and appropriations
in FY 2011 that may be declared as savings to fund additional expenditures.
Substantially identical requests for authority to pool savings and to fund proposed projects were contained in various
other memoranda from Sec. Abad dated June 25, 2012,117 September 4, 2012,118 December 19, 2012,119May 20,
2013,120 and September 25, 2013.121 The President apparently approved all the requests, withholding approval
only of the proposed projects contained in the June 25, 2012 memorandum, as borne out by his marginal note
therein to the effect that the proposed projects should still be "subject to further discussions."122
In order to implement the June25, 2012 memorandum, Sec. Abad issued NBC No. 541 (Adoption of Operational
Efficiency Measure Withdrawal of Agencies Unobligated Allotments as of June 30, 2012),123 reproduced herein as
follows:
NATIONAL BUDGET CIRCULAR No. 541
July 18, 2012
3.1 These guidelines shall cover the withdrawal of unobligated allotments as of June 30, 2012 of
all national government agencies (NGAs) charged against FY 2011 Continuing Appropriation
(R.A. No.10147) and FY 2012 Current Appropriation (R.A. No. 10155), pertaining to:
TO: All Heads of Departments/Agencies/State Universities and Colleges and other Offices of the National
Government, Budget and Planning Officers; Heads of Accounting Units and All Others Concerned
3.1.1 Capital Outlays (CO);

SUBJECT : Adoption of Operational Efficiency Measure Withdrawal of Agencies Unobligated Allotments as of June
30, 2012
3.1.2 Maintenance and Other Operating Expenses (MOOE) related to the

implementation of programs and projects, as well as capitalized MOOE; and
1.0 Rationale
3.1.3 Personal Services corresponding to unutilized pension benefits declared as
savings by the agencies concerned based on their updated/validated list of
pensioners.
The DBM, as mandated by Executive Order (EO) No. 292 (Administrative Code of 1987), periodically reviews and
evaluates the departments/agencies efficiency and effectiveness in utilizing budgeted funds for the delivery of
services and production of goods, consistent with the government priorities.
In the event that a measure is necessary to further improve the operational efficiency of the government, the
President is authorized to suspend or stop further use of funds allotted for any agency or expenditure authorized in
the General Appropriations Act. Withdrawal and pooling of unutilized allotment releases can be effected by DBM
based on authority of the President, as mandated under Sections 38 and 39, Chapter 5, Book VI of EO 292.
For the first five months of 2012, the National Government has not met its spending targets. In order to accelerate
spending and sustain the fiscal targets during the year, expenditure measures have to be implemented to optimize
the utilization of available resources.
Departments/agencies have registered low spending levels, in terms of obligations and disbursements per initial
review of their 2012 performance. To enhance agencies performance, the DBM conducts continuous consultation
meetings and/or send call-up letters, requesting them to identify slow-moving programs/projects and the
factors/issues affecting their performance (both pertaining to internal systems and those which are outside the
agencies spheres of control). Also, they are asked to formulate strategies and improvement plans for the rest of
2012.
Notwithstanding these initiatives, some departments/agencies have continued to post low obligation levels as of end
of first semester, thus resulting to substantial unobligated allotments.
In line with this, the President, per directive dated June 27, 2012 authorized the withdrawal of unobligated allotments
of agencies with low levels of obligations as of June 30, 2012, both for continuing and current allotments. This
measure will allow the maximum utilization of available allotments to fund and undertake other priority expenditures
of the national government.
4.0 Exemption
These guidelines shall not apply to the following:
4.1 NGAs
4.1.1 Constitutional Offices/Fiscal Autonomy Group, granted fiscal autonomy under
the Philippine Constitution; and
4.1.2 State Universities and Colleges, adopting the Normative Funding allocation
scheme i.e., distribution of a predetermined budget ceiling.
4.2 Fund Sources
4.2.1 Personal Services other than pension benefits;
4.2.2 MOOE items earmarked for specific purposes or subject to realignment
conditions per General Provisions of the GAA:
Confidential and Intelligence Fund;
2.0 Purpose
2.1 To provide the conditions and parameters on the withdrawal of unobligated allotments of
agencies as of June 30, 2012 to fund priority and/or fast-moving programs/projects of the
national government;
Savings from Traveling, Communication, Transportation and Delivery,

Repair and Maintenance, Supplies and Materials and Utility which shall be
used for the grant of Collective Negotiation Agreement incentive benefit;
2.2 To prescribe the reports and documents to be used as bases on the withdrawal of said
unobligated allotments; and
Savings from mandatory expenditures which can be realigned only in the

last quarter after taking into consideration the agencys full year
requirements, i.e., Petroleum, Oil and Lubricants, Water, Illumination, Power
Services, Telephone, other Communication Services and Rent.
2.3 To provide guidelines in the utilization or reallocation of the withdrawn allotments.

3.0 Coverage
3.2 The withdrawal of unobligated allotments may cover the identified programs, projects and
activities of the departments/agencies reflected in the DBM list shown as Annex A or specific
programs and projects as may be identified by the agencies.
4.2.3 Foreign-Assisted Projects (loan proceeds and peso counterpart);
4.2.4 Special Purpose Funds such as: E-Government Fund, International

Commitments Fund, PAMANA, Priority Development Assistance Fund, Calamity Fund,
Budgetary Support to GOCCs and Allocation to LGUs, among others;
5.6 DBM shall prepare and submit to the President, a report on the magnitude of withdrawn
allotments. The report shall highlight the agencies which failed to submit the June 30 reports
required under this Circular.
4.2.5 Quick Response Funds; and
5.7 The withdrawn allotments may be:
4.2.6 Automatic Appropriations i.e., Retirement Life Insurance Premium and Special
Accounts in the General Fund.
5.7.1 Reissued for the original programs and projects of the agencies/OUs concerned,
from which the allotments were withdrawn;
5.0 Guidelines
5.7.2 Realigned to cover additional funding for other existing programs and projects of
the agency/OU; or
5.1 National government agencies shall continue to undertake procurement activities
notwithstanding the implementation of the policy of withdrawal of unobligated allotments until the
end of the third quarter, FY 2012. Even without the allotments, the agency shall proceed in
undertaking the procurement processes (i.e., procurement planning up to the conduct of bidding
but short of awarding of contract) pursuant to GPPB Circular Nos. 02-2008 and 01-2009 and
DBM Circular Letter No. 2010-9.
5.7.3 Used to augment existing programs and projects of any agency and to fund
priority programs and projects not considered in the 2012 budget but expected to be
started or implemented during the current year.
5.8 For items 5.7.1 and 5.7.2 above, agencies/OUs concerned may submit to DBM a Special
Budget Request (SBR), supported with the following:
5.2 For the purpose of determining the amount of unobligated allotments that shall be
withdrawn, all departments/agencies/operating units (OUs) shall submit to DBM not later than
July 30, 2012, the following budget accountability reports as of June 30, 2012;
5.8.1 Physical and Financial Plan (PFP);

5.8.2 Monthly Cash Program (MCP); and
Statement of Allotments, Obligations and Balances (SAOB);
5.8.3 Proof that the project/activity has started the procurement processes i.e., Proof
of Posting and/or Advertisement of the Invitation to Bid.
Financial Report of Operations (FRO); and

Physical Report of Operations.
5.9 The deadline for submission of request/s pertaining to these categories shall be until the end
of the third quarter i.e., September 30, 2012. After said cut-off date, the withdrawn allotments
shall be pooled and form part of the overall savings of the national government.
5.3 In the absence of the June 30, 2012 reports cited under item 5.2 of this Circular, the
agencys latest report available shall be used by DBM as basis for withdrawal of allotment. The
DBM shall compute/approximate the agencys obligation level as of June 30 to derive its
unobligated allotments as of same period. Example: If the March 31 SAOB or FRO reflects
actual obligations of P 800M then the June 30 obligation level shall approximate to P1,600 M
(i.e., P800 M x 2 quarters).
5.10 Utilization of the consolidated withdrawn allotments for other priority programs and projects
as cited under item 5.7.3 of this Circular, shall be subject to approval of the President. Based on
the approval of the President, DBM shall issue the SARO to cover the approved priority
expenditures subject to submission by the agency/OU concerned of the SBR and supported with
PFP and MCP.
5.4 All released allotments in FY 2011 charged against R.A. No. 10147 which remained
unobligated as of June 30, 2012 shall be immediately considered for withdrawal. This policy is
based on the following considerations:
5.11 It is understood that all releases to be made out of the withdrawn allotments (both 2011 and
2012 unobligated allotments) shall be within the approved Expenditure Program level of the
national government for the current year. The SAROs to be issued shall properly disclose the
appropriation source of the release to determine the extent of allotment validity, as follows:
5.4.1 The departments/agencies approved priority programs and projects are

assumed to be implementation-ready and doable during the given fiscal year; and
For charges under R.A. 10147 allotments shall be valid up to December 31, 2012;
and
5.4.2 The practice of having substantial carryover appropriations may imply that the
agency has a slower-than-programmed implementation capacity or agency tends to
implement projects within a two-year timeframe.
For charges under R.A. 10155 allotments shall be valid up to December 31, 2013.
5.5. Consistent with the Presidents directive, the DBM shall, based on evaluation of the reports
cited above and results of consultations with the departments/agencies, withdraw the
unobligated allotments as of June 30, 2012 through issuance of negative Special Allotment
Release Orders (SAROs).
5.12 Timely compliance with the submission of existing BARs and other reportorial requirements
is reiterated for monitoring purposes.
6.0 Effectivity
This circular shall take effect immediately.

(Sgd.) FLORENCIO B. ABAD
Secretary
As can be seen, NBC No. 541 specified that the unobligated allotments of all agencies and departments as of June
30, 2012 that were charged against the continuing appropriations for fiscal year 2011 and the 2012 GAA (R.A. No.
10155) were subject to withdrawal through the issuance of negative SAROs, but such allotments could be either: (1)
reissued for the original PAPs of the concerned agencies from which they were withdrawn; or (2) realigned to cover
additional funding for other existing PAPs of the concerned agencies; or (3) used to augment existing PAPs of any
agency and to fund priority PAPs not considered in the 2012 budget but expected to be started or implemented in
2012. Financing the other priority PAPs was made subject to the approval of the President. Note here that NBC No.
541 used terminologies like "realignment" and "augmentation" in the application of the withdrawn unobligated
allotments.
Taken together, all the issuances showed how the DAP was to be implemented and funded, that is (1) by
declaring "savings" coming from the various departments and agencies derived from pooling unobligated allotments
and withdrawing unreleased appropriations; (2) releasing unprogrammed funds; and (3) applying the "savings" and
unprogrammed funds to augment existing PAPs or to support other priority PAPs.
c. DAP was not an appropriation
measure; hence, no appropriation
law was required to adopt or to
implement it
Petitioners Syjuco, Luna, Villegas and PHILCONSA state that Congress did not enact a law to establish the DAP, or
to authorize the disbursement and release of public funds to implement the DAP. Villegas, PHILCONSA, IBP, Araullo,
and COURAGE observe that the appropriations funded under the DAP were not included in the 2011, 2012 and 2013
GAAs. To petitioners IBP, Araullo, and COURAGE, the DAP, being actually an appropriation that set aside public
funds for public use, should require an enabling law for its validity. VACC maintains that the DAP, because it involved
huge allocations that were separate and distinct from the GAAs, circumvented and duplicated the GAAs without
congressional authorization and control.
The petitioners contend in unison that based on how it was developed and implemented the DAP violated the
mandate of Section 29(1), Article VI of the 1987 Constitution that "[n]o money shall be paid out of the Treasury
except in pursuance of an appropriation made by law."
The OSG posits, however, that no law was necessary for the adoption and implementation of the DAP because of its
being neither a fund nor an appropriation, but a program or an administrative system of prioritizing spending; and
that the adoption of the DAP was by virtue of the authority of the President as the Chief Executive to ensure that laws
were faithfully executed.
We agree with the OSGs position.
The DAP was a government policy or strategy designed to stimulate the economy through accelerated spending. In
the context of the DAPs adoption and implementation being a function pertaining to the Executive as the main actor
during the Budget Execution Stage under its constitutional mandate to faithfully execute the laws, including the
GAAs, Congress did not need to legislate to adopt or to implement the DAP. Congress could appropriate but would
have nothing more to do during the Budget Execution Stage. Indeed, appropriation was the act by which Congress
"designates a particular fund, or sets apart a specified portion of the public revenue or of the money in the public
treasury, to be applied to some general object of governmental expenditure, or to some individual purchase or
expense."124 As pointed out in Gonzales v. Raquiza:125 "In a strict sense, appropriation has been defined as
nothing more than the legislative authorization prescribed by the Constitution that money may be paid out of the
Treasury, while appropriation made by law refers to the act of the legislature setting apart or assigning to a particular
use a certain sum to be used in the payment of debt or dues from the State to its creditors."126
On the other hand, the President, in keeping with his duty to faithfully execute the laws, had sufficient discretion
during the execution of the budget to adapt the budget to changes in the countrys economic situation.127 He could
adopt a plan like the DAP for the purpose. He could pool the savings and identify the PAPs to be funded under the
DAP. The pooling of savings pursuant to the DAP, and the identification of the PAPs to be funded under the DAP did
not involve appropriation in the strict sense because the money had been already set apart from the public treasury
by Congress through the GAAs. In such actions, the Executive did not usurp the power vested in Congress under
Section 29(1), Article VI of the Constitution.
3.
Unreleased appropriations and withdrawn
unobligated allotments under the DAP
were not savings, and the use of such
appropriations contravened Section 25(5),
Article VI of the 1987 Constitution.
Notwithstanding our appreciation of the DAP as a plan or strategy validly adopted by the Executive to ramp up
spending to accelerate economic growth, the challenges posed by the petitioners constrain us to dissect the
mechanics of the actual execution of the DAP. The management and utilization of the public wealth inevitably
demands a most careful scrutiny of whether the Executives implementation of the DAP was consistent with the
Constitution, the relevant GAAs and other existing laws.
a. Although executive discretion
and flexibility are necessary in
the execution of the budget, any
transfer of appropriated funds
should conform to Section 25(5),
Article VI of the Constitution
We begin this dissection by reiterating that Congress cannot anticipate all issues and needs that may come into play
once the budget reaches its execution stage. Executive discretion is necessary at that stage to achieve a sound
fiscal administration and assure effective budget implementation. The heads of offices, particularly the President,
require flexibility in their operations under performance budgeting to enable them to make whatever adjustments are
needed to meet established work goals under changing conditions.128 In particular, the power to transfer funds can
give the President the flexibility to meet unforeseen events that may otherwise impede the efficient implementation of
the PAPs set by Congress in the GAA.
Congress has traditionally allowed much flexibility to the President in allocating funds pursuant to the
GAAs,129particularly when the funds are grouped to form lump sum accounts.130 It is assumed that the agencies of
the Government enjoy more flexibility when the GAAs provide broader appropriation items.131 This flexibility comes
in the form of policies that the Executive may adopt during the budget execution phase. The DAP as a strategy to
improve the countrys economic position was one policy that the President decided to carry out in order to fulfill his
mandate under the GAAs.
Denying to the Executive flexibility in the expenditure process would be counterproductive. In Presidential Spending
Power,132 Prof. Louis Fisher, an American constitutional scholar whose specialties have included budget policy, has
justified extending discretionary authority to the Executive thusly:
[T]he impulse to deny discretionary authority altogether should be resisted. There are many number of reasons why
obligations and outlays by administrators may have to differ from appropriations by legislators. Appropriations are
made many months, and sometimes years, in advance of expenditures. Congress acts with imperfect knowledge in
trying to legislate in fields that are highly technical and constantly undergoing change. New circumstances will
develop to make obsolete and mistaken the decisions reached by Congress at the appropriation stage. It is not
practicable for Congress to adjust to each new development by passing separate supplemental appropriation bills.
Were Congress to control expenditures by confining administrators to narrow statutory details, it would perhaps
protect its power of the purse but it would not protect the purse itself. The realities and complexities of public policy
require executive discretion for the sound management of public funds.
xxxx
x x x The expenditure process, by its very nature, requires substantial discretion for administrators. They need to
exercise judgment and take responsibility for their actions, but those actions ought to be directed toward executing
congressional, not administrative policy. Let there be discretion, but channel it and use it to satisfy the programs and
priorities established by Congress.
In contrast, by allowing to the heads of offices some power to transfer funds within their respective offices, the
Constitution itself ensures the fiscal autonomy of their offices, and at the same time maintains the separation of
powers among the three main branches of the Government. The Court has recognized this, and emphasized so in
Bengzon v. Drilon,133 viz:
The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and flexibility
needed in the discharge of their constitutional duties. The imposition of restrictions and constraints on the manner
the independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema to
fiscal autonomy and violative not only of the express mandate of the Constitution but especially as regards the
Supreme Court, of the independence and separation of powers upon which the entire fabric of our constitutional
system is based.
limitations.138 The clear intention of the Convention was to further restrict, not to liberalize, the power to transfer
appropriations.139 Thus, the Committee on the Budget and Appropriation initially considered setting stringent
limitations on the power to augment, and suggested that the augmentation of an item of appropriation could be made
"by not more than ten percent if the original item of appropriation to be augmented does not exceed one million
pesos, or by not more than five percent if the original item of appropriation to be augmented exceeds one million
pesos."140 But two members of the Committee objected to the P1,000,000.00 threshold, saying that the amount was
arbitrary and might not be reasonable in the future. The Committee agreed to eliminate theP1,000,000.00 threshold,
and settled on the ten percent limitation.141
In the end, the ten percent limitation was discarded during the plenary of the Convention, which adopted the
following final version under Section 16, Article VIII of the 1973 Constitution, to wit:
(5) No law shall be passed authorizing any transfer of appropriations; however, the President, the Prime Minister, the
Speaker, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may by law be
authorized to augment any item in the general appropriations law for their respective offices from savings in other
items of their respective appropriations.
The 1973 Constitution explicitly and categorically prohibited the transfer of funds from one item to another, unless
Congress enacted a law authorizing the President, the Prime Minister, the Speaker, the Chief Justice of the Supreme
Court, and the heads of the Constitutional omissions to transfer funds for the purpose of augmenting any item from
savings in another item in the GAA of their respective offices. The leeway was limited to augmentation only, and was
further constricted by the condition that the funds to be transferred should come from savings from another item in
the appropriation of the office.142
On July 30, 1977, President Marcos issued PD No. 1177, providing in its Section 44 that:
In the case of the President, the power to transfer funds from one item to another within the Executive has not been
the mere offshoot of established usage, but has emanated from law itself. It has existed since the time of the
American Governors-General.134 Act No. 1902 (An Act authorizing the Governor-General to direct any unexpended
balances of appropriations be returned to the general fund of the Insular Treasury and to transfer from the general
fund moneys which have been returned thereto), passed on May 18, 1909 by the First Philippine
Legislature,135 was the first enabling law that granted statutory authority to the President to transfer funds. The
authority was without any limitation, for the Act explicitly empowered the Governor-General to transfer any
unexpended balance of appropriations for any bureau or office to another, and to spend such balance as if it had
originally been appropriated for that bureau or office.
From 1916 until 1920, the appropriations laws set a cap on the amounts of funds that could be transferred, thereby
limiting the power to transfer funds. Only 10% of the amounts appropriated for contingent or miscellaneous expenses
could be transferred to a bureau or office, and the transferred funds were to be used to cover deficiencies in the
appropriations also for miscellaneous expenses of said bureau or office.
In 1921, the ceiling on the amounts of funds to be transferred from items under miscellaneous expenses to any other
item of a certain bureau or office was removed.
During the Commonwealth period, the power of the President to transfer funds continued to be governed by the
GAAs despite the enactment of the Constitution in 1935. It is notable that the 1935 Constitution did not include a
provision on the power to transfer funds. At any rate, a shift in the extent of the Presidents power to transfer funds
was again experienced during this era, with the President being given more flexibility in implementing the budget.
The GAAs provided that the power to transfer all or portions of the appropriations in the Executive Department could
be made in the "interest of the public, as the President may determine."136
In its time, the 1971 Constitutional Convention wanted to curtail the Presidents seemingly unbounded discretion in
transferring funds.137 Its Committee on the Budget and Appropriation proposed to prohibit the transfer of funds
among the separate branches of the Government and the independent constitutional bodies, but to allow instead
their respective heads to augment items of appropriations from savings in their respective budgets under certain
Section 44. Authority to Approve Fund Transfers. The President shall have the authority to transfer any fund
appropriated for the different departments, bureaus, offices and agencies of the Executive Department which are
included in the General Appropriations Act, to any program, project, or activity of any department, bureau or office
included in the General Appropriations Act or approved after its enactment.
The President shall, likewise, have the authority to augment any appropriation of the Executive Department in the
General Appropriations Act, from savings in the appropriations of another department, bureau, office or agency within
the Executive Branch, pursuant to the provisions of Article VIII, Section 16 (5) of the Constitution.
In Demetria v. Alba, however, the Court struck down the first paragraph of Section 44 for contravening Section
16(5)of the 1973 Constitution, ruling:
Paragraph 1 of Section 44 of P.D. No. 1177 unduly over-extends the privilege granted under said Section 16. It
empowers the President to indiscriminately transfer funds from one department, bureau, office or agency of the
Executive Department to any program, project or activity of any department, bureau or office included in the General
Appropriations Act or approved after its enactment, without regard as to whether or not the funds to be transferred
are actually savings in the item from which the same are to be taken, or whether or not the transfer is for the purpose
of augmenting the item to which said transfer is to be made. It does not only completely disregard the standards set
in the fundamental law, thereby amounting to an undue delegation of legislative powers, but likewise goes beyond
the tenor thereof. Indeed, such constitutional infirmities render the provision in question null and void.143
It is significant that Demetria was promulgated 25 days after the ratification by the people of the 1987 Constitution,
whose Section 25(5) of Article VI is identical to Section 16(5), Article VIII of the 1973 Constitution, to wit:
Section 25. x x x
xxxx
5) No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the
Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for
their respective offices from savings in other items of their respective appropriations.
(1) There is a law authorizing the President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and the heads of the Constitutional
Commissions to transfer funds within their respective offices;
(2) The funds to be transferred are savings generated from the appropriations for their respective offices;
and (3) The purpose of the transfer is to augment an item in the general appropriations law for their
respective offices.
xxxx
The foregoing history makes it evident that the Constitutional Commission included Section 25(5), supra, to keep a
tight rein on the exercise of the power to transfer funds appropriated by Congress by the President and the other
high officials of the Government named therein. The Court stated in Nazareth v. Villar:144
In the funding of current activities, projects, and programs, the general rule should still be that the budgetary amount
contained in the appropriations bill is the extent Congress will determine as sufficient for the budgetary allocation for
the proponent agency. The only exception is found in Section 25 (5), Article VI of the Constitution, by which the
President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the
Supreme Court, and the heads of Constitutional Commissions are authorized to transfer appropriations to
augmentany item in the GAA for their respective offices from the savings in other items of their respective
appropriations. The plain language of the constitutional restriction leaves no room for the petitioners posture, which
we should now dispose of as untenable.
It bears emphasizing that the exception in favor of the high officials named in Section 25(5), Article VI of the
Constitution limiting the authority to transfer savings only to augment another item in the GAA is strictly but
reasonably construed as exclusive. As the Court has expounded in Lokin, Jr. v. Commission on Elections:
When the statute itself enumerates the exceptions to the application of the general rule, the exceptions are strictly
but reasonably construed. The exceptions extend only as far as their language fairly warrants, and all doubts should
be resolved in favor of the general provision rather than the exceptions. Where the general rule is established by a
statute with exceptions, none but the enacting authority can curtail the former. Not even the courts may add to the
latter by implication, and it is a rule that an express exception excludes all others, although it is always proper in
determining the applicability of the rule to inquire whether, in a particular case, it accords with reason and justice.
The appropriate and natural office of the exception is to exempt something from the scope of the general words of a
statute, which is otherwise within the scope and meaning of such general words. Consequently, the existence of an
exception in a statute clarifies the intent that the statute shall apply to all cases not excepted. Exceptions are subject
to the rule of strict construction; hence, any doubt will be resolved in favor of the general provision and against the
exception. Indeed, the liberal construction of a statute will seem to require in many circumstances that the exception,
by which the operation of the statute is limited or abridged, should receive a restricted construction.
Accordingly, we should interpret Section 25(5), supra, in the context of a limitation on the Presidents discretion over
the appropriations during the Budget Execution Phase.
b. Requisites for the valid transfer of
appropriated funds under Section
25(5), Article VI of the 1987
Constitution
The transfer of appropriated funds, to be valid under Section 25(5), supra, must be made upon a concurrence of the
following requisites, namely:
b.1. First RequisiteGAAs of 2011 and

2012 lacked valid provisions to
authorize transfers of funds under
the DAP; hence, transfers under the
DAP were unconstitutional
Section 25(5), supra, not being a self-executing provision of the Constitution, must have an implementing law for it to
be operative. That law, generally, is the GAA of a given fiscal year. To comply with the first requisite, the GAAs should
expressly authorize the transfer of funds.
Did the GAAs expressly authorize the transfer of funds?
In the 2011 GAA, the provision that gave the President and the other high officials the authority to transfer funds was
Section 59, as follows:
Section 59. Use of Savings. The President of the Philippines, the Senate President, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, the Heads of Constitutional Commissions enjoying fiscal
autonomy, and the Ombudsman are hereby authorized to augment any item in this Act from savings in other items of
their respective appropriations.
In the 2012 GAA, the empowering provision was Section 53, to wit:
autonomy, and the Ombudsman are hereby authorized to augment any item in this Act from savings in other items of
their respective appropriations.
In fact, the foregoing provisions of the 2011 and 2012 GAAs were cited by the DBM as justification for the use of
savings under the DAP.145
A reading shows, however, that the aforequoted provisions of the GAAs of 2011 and 2012 were textually unfaithful to
the Constitution for not carrying the phrase "for their respective offices" contained in Section 25(5), supra. The impact
of the phrase "for their respective offices" was to authorize only transfers of funds within their offices (i.e., in the case
of the President, the transfer was to an item of appropriation within the Executive). The provisions carried a different
phrase ("to augment any item in this Act"), and the effect was that the 2011 and 2012 GAAs thereby literally allowed
the transfer of funds from savings to augment any item in the GAAs even if the item belonged to an office outside the
Executive. To that extent did the 2011 and 2012 GAAs contravene the Constitution. At the very least, the aforequoted
provisions cannot be used to claim authority to transfer appropriations from the Executive to another branch, or to a
constitutional commission.
Apparently realizing the problem, Congress inserted the omitted phrase in the counterpart provision in the 2013
GAA, to wit:
autonomy, and the Ombudsman are hereby authorized to use savings in their respective appropriations to augment
actual deficiencies incurred for the current year in any item of their respective appropriations.
Even had a valid law authorizing the transfer of funds pursuant to Section 25(5), supra, existed, there still remained
two other requisites to be met, namely: that the source of funds to be transferred were savings from appropriations
within the respective offices; and that the transfer must be for the purpose of augmenting an item of appropriation
within the respective offices.
b.2. Second Requisite There were
no savings from which funds
could be sourced for the DAP
Were the funds used in the DAP actually savings?
The petitioners claim that the funds used in the DAP the unreleased appropriations and withdrawn unobligated
allotments were not actual savings within the context of Section 25(5), supra, and the relevant provisions of the
GAAs. Belgica argues that "savings" should be understood to refer to the excess money after the items that needed
to be funded have been funded, or those that needed to be paid have been paid pursuant to the budget.146 The
petitioners posit that there could be savings only when the PAPs for which the funds had been appropriated were
actually implemented and completed, or finally discontinued or abandoned. They insist that savings could not be
realized with certainty in the middle of the fiscal year; and that the funds for "slow-moving" PAPs could not be
considered as savings because such PAPs had not actually been abandoned or discontinued yet.147 They stress
that NBC No. 541, by allowing the withdrawn funds to be reissued to the "original program or project from which it
was withdrawn," conceded that the PAPs from which the supposed savings were taken had not been completed,
abandoned or discontinued.148
The OSG represents that "savings" were "appropriations balances," being the difference between the appropriation
authorized by Congress and the actual amount allotted for the appropriation; that the definition of "savings" in the
GAAs set only the parameters for determining when savings occurred; that it was still the President (as well as the
other officers vested by the Constitution with the authority to augment) who ultimately determined when savings
actually existed because savings could be determined only during the stage of budget execution; that the President
must be given a wide discretion to accomplish his tasks; and that the withdrawn unobligated allotments were savings
inasmuch as they were clearly "portions or balances of any programmed appropriationfree from any obligation or
encumbrances which are (i) still available after the completion or final discontinuance or abandonment of the work,
activity or purpose for which the appropriation is authorized"
We partially find for the petitioners.
In ascertaining the meaning of savings, certain principles should be borne in mind. The first principle is that Congress
wields the power of the purse. Congress decides how the budget will be spent; what PAPs to fund; and the amounts
of money to be spent for each PAP. The second principle is that the Executive, as the department of the Government
tasked to enforce the laws, is expected to faithfully execute the GAA and to spend the budget in accordance with the
provisions of the GAA.149 The Executive is expected to faithfully implement the PAPs for which Congress allocated
funds, and to limit the expenditures within the allocations, unless exigencies result to deficiencies for which
augmentation is authorized, subject to the conditions provided by law. The third principle is that in making the
Presidents power to augment operative under the GAA, Congress recognizes the need for flexibility in budget
execution. In so doing, Congress diminishes its own power of the purse, for it delegates a fraction of its power to the
Executive. But Congress does not thereby allow the Executive to override its authority over the purse as to let the
Executive exceed its delegated authority. And the fourth principle is that savings should be actual. "Actual" denotes
something that is real or substantial, or something that exists presently in fact, as opposed to something that is
merely theoretical, possible, potential or hypothetical.150
The foregoing principles caution us to construe savings strictly against expanding the scope of the power to
augment. It is then indubitable that the power to augment was to be used only when the purpose for which the funds
had been allocated were already satisfied, or the need for such funds had ceased to exist, for only then could
savings be properly realized. This interpretation prevents the Executive from unduly transgressing Congress power
of the purse.
The definition of "savings" in the GAAs, particularly for 2011, 2012 and 2013, reflected this interpretation and made it
operational, viz:
Savings refer to portions or balances of any programmed appropriation in this Act free from any obligation or
encumbrance which are: (i) still available after the completion or final discontinuance or abandonment of the work,
activity or purpose for which the appropriation is authorized; (ii) from appropriations balances arising from unpaid
compensation and related costs pertaining to vacant positions and leaves of absence without pay; and (iii) from
appropriations balances realized from the implementation of measures resulting in improved systems and
efficiencies and thus enabled agencies to meet and deliver the required or planned targets, programs and services
approved in this Act at a lesser cost.
The three instances listed in the GAAs aforequoted definition were a sure indication that savings could be generated
only upon the purpose of the appropriation being fulfilled, or upon the need for the appropriation being no longer
existent.
The phrase "free from any obligation or encumbrance" in the definition of savings in the GAAs conveyed the notion
that the appropriation was at that stage when the appropriation was already obligated and the appropriation was
already released. This interpretation was reinforced by the enumeration of the three instances for savings to arise,
which showed that the appropriation referred to had reached the agency level. It could not be otherwise, considering
that only when the appropriation had reached the agency level could it be determined whether (a) the PAP for which
the appropriation had been authorized was completed, finally discontinued, or abandoned; or (b) there were vacant
positions and leaves of absence without pay; or (c) the required or planned targets, programs and services were
realized at a lesser cost because of the implementation of measures resulting in improved systems and efficiencies.
The DBM declares that part of the savings brought under the DAP came from "pooling of unreleased appropriations
such as unreleased Personnel Services appropriations which will lapse at the end of the year, unreleased
appropriations of slow moving projects and discontinued projects per Zero-Based Budgeting findings."
The declaration of the DBM by itself does not state the clear legal basis for the treatment of unreleased or unalloted
appropriations as savings.
The fact alone that the appropriations are unreleased or unalloted is a mere description of the status of the items as
unalloted or unreleased. They have not yet ripened into categories of items from which savings can be generated.
Appropriations have been considered "released" if there has already been an allotment or authorization to incur
obligations and disbursement authority. This means that the DBM has issued either an ABM (for those not needing
clearance), or a SARO (for those needing clearance), and consequently an NCA, NCAA or CDC, as the case may
be. Appropriations remain unreleased, for instance, because of noncompliance with documentary requirements (like
the Special Budget Request), or simply because of the unavailability of funds. But the appropriations do not actually
reach the agencies to which they were allocated under the GAAs, and have remained with the DBM technically
speaking. Ergo, unreleased appropriations refer to appropriations with allotments but without disbursement authority.
For us to consider unreleased appropriations as savings, unless these met the statutory definition of savings, would
seriously undercut the congressional power of the purse, because such appropriations had not even reached and
been used by the agency concerned vis--vis the PAPs for which Congress had allocated them. However, if an
agency has unfilled positions in its plantilla and did not receive an allotment and NCA for such vacancies,
appropriations for such positions, although unreleased, may already constitute savings for that agency under the
second instance.
Unobligated allotments, on the other hand, were encompassed by the first part of the definition of "savings" in the
GAA, that is, as "portions or balances of any programmed appropriation in this Act free from any obligation or
encumbrance." But the first part of the definition was further qualified by the three enumerated instances of when
savings would be realized. As such, unobligated allotments could not be indiscriminately declared as savings without
first determining whether any of the three instances existed. This signified that the DBMs withdrawal of unobligated
allotments had disregarded the definition of savings under the GAAs.
Justice Carpio has validly observed in his Separate Concurring Opinion that MOOE appropriations are deemed
divided into twelve monthly allocations within the fiscal year; hence, savings could be generated monthly from the
excess or unused MOOE appropriations other than the Mandatory Expenditures and Expenditures for Business-type
Activities because of the physical impossibility to obligate and spend such funds as MOOE for a period that already
lapsed. Following this observation, MOOE for future months are not savings and cannot be transferred.
The DBMs Memorandum for the President dated June 25, 2012 (which became the basis of NBC No. 541) stated:
ON THE AUTHORITY TO WITHDRAW UNOBLIGATED ALLOTMENTS
5.0 The DBM, during the course of performance reviews conducted on the agencies operations,
particularly on the implementation of their projects/activities, including expenses incurred in undertaking
the same, have been continuously calling the attention of all National Government agencies (NGAs) with
low levels of obligations as of end of the first quarter to speedup the implementation of their programs and
projects in the second quarter.
6.0 Said reminders were made in a series of consultation meetings with the concerned agencies and with
call-up letters sent.
7.0 Despite said reminders and the availability of funds at the departments disposal, the level of financial
performance of some departments registered below program, with the targeted obligations/disbursements
for the first semester still not being met.
8.0 In order to maximize the use of the available allotment, all unobligated balances as of June 30, 2012,
both for continuing and current allotments shall be withdrawn and pooled to fund fast moving
programs/projects.
9.0 It may be emphasized that the allotments to be withdrawn will be based on the list of slow moving
projects to be identified by the agencies and their catch up plans to be evaluated by the DBM.
It is apparent from the foregoing text that the withdrawal of unobligated allotments would be based on whether the
allotments pertained to slow-moving projects, or not. However, NBC No. 541 did not set in clear terms the criteria for
the withdrawal of unobligated allotments, viz:
3.1. These guidelines shall cover the withdrawal of unobligated allotments as of June 30, 2012 ofall
national government agencies (NGAs) charged against FY 2011 Continuing Appropriation (R.A. No.
10147) and FY 2012 Current Appropriation (R.A. No. 10155), pertaining to:
3.1.1 Capital Outlays (CO);
3.1.2 Maintenance and Other Operating Expenses (MOOE) related to the implementation of
programs and projects, as well as capitalized MOOE; and
3.1.3 Personal Services corresponding to unutilized pension benefits declared as savings by the
agencies concerned based on their undated/validated list of pensioners.
A perusal of its various provisions reveals that NBC No. 541 targeted the "withdrawal of unobligated allotments of
agencies with low levels of obligations"151 "to fund priority and/or fast-moving programs/projects."152 But the fact
that the withdrawn allotments could be "[r]eissued for the original programs and projects of the agencies/OUs
concerned, from which the allotments were withdrawn"153 supported the conclusion that the PAPs had not yet been
finally discontinued or abandoned. Thus, the purpose for which the withdrawn funds had been appropriated was not
yet fulfilled, or did not yet cease to exist, rendering the declaration of the funds as savings impossible.
Worse, NBC No. 541 immediately considered for withdrawal all released allotments in 2011 charged against the
2011 GAA that had remained unobligated based on the following considerations, to wit:
5.4.1 The departments/agencies approved priority programs and projects are assumed to be
implementation-ready and doable during the given fiscal year; and
5.4.2 The practice of having substantial carryover appropriations may imply that the agency has a slowerthan-programmed implementation capacity or agency tends to implement projects within a two-year
timeframe.
Such withdrawals pursuant to NBC No. 541, the circular that affected the unobligated allotments for continuing and
current appropriations as of June 30, 2012, disregarded the 2-year period of availability of the appropriations for
MOOE and capital outlay extended under Section 65, General Provisions of the 2011 GAA, viz:
Section 65. Availability of Appropriations. Appropriations for MOOE and capital outlays authorized in this Act shall
be available for release and obligation for the purpose specified, and under the same special provisions applicable
thereto, for a period extending to one fiscal year after the end of the year in which such items were appropriated:
PROVIDED, That appropriations for MOOE and capital outlays under R.A. No. 9970 shall be made available up to
the end of FY 2011: PROVIDED, FURTHER, That a report on these releases and obligations shall be submitted to
the Senate Committee on Finance and the House Committee on Appropriations.
and Section 63 General Provisions of the 2012 GAA, viz:
Section 63. Availability of Appropriations. Appropriations for MOOE and capital outlays authorized in this Act shall
be available for release and obligation for the purpose specified, and under the same special provisions applicable
thereto, for a period extending to one fiscal year after the end of the year in which such items were appropriated:
PROVIDED, That a report on these releases and obligations shall be submitted to the Senate Committee on Finance
and the House Committee on Appropriations, either in printed form or by way of electronic document.154
Thus, another alleged area of constitutional infirmity was that the DAP and its relevant issuances shortened the
period of availability of the appropriations for MOOE and capital outlays.
Congress provided a one-year period of availability of the funds for all allotment classes in the 2013 GAA (R.A. No.
10352), to wit:
Section 63. Availability of Appropriations. All appropriations authorized in this Act shall be available for release and
obligation for the purposes specified, and under the same special provisions applicable thereto, until the end of FY
2013: PROVIDED, That a report on these releases and obligations shall be submitted to the Senate Committee on
Finance and House Committee on Appropriations, either in printed form or by way of electronic document.
Yet, in his memorandum for the President dated May 20, 2013, Sec. Abad sought omnibus authority to consolidate
savings and unutilized balances to fund the DAP on a quarterly basis, viz:
7.0 If the level of financial performance of some department will register below program, even with the
availability of funds at their disposal, the targeted obligations/disbursements for each quarter will not be
met. It is important to note that these funds will lapse at the end of the fiscal year if these remain
unobligated.
8.0 To maximize the use of the available allotment, all unobligated balances at the end of every quarter,
both for continuing and current allotments shall be withdrawn and pooled to fund fast moving
programs/projects.
9.0 It may be emphasized that the allotments to be withdrawn will be based on the list of slow moving
projects to be identified by the agencies and their catch up plans to be evaluated by the DBM.
The validity period of the affected appropriations, already given the brief Lifes pan of one year, was further shortened
to only a quarter of a year under the DBMs memorandum dated May 20, 2013.
The petitioners accuse the respondents of forcing the generation of savings in order to have a larger fund available
for discretionary spending. They aver that the respondents, by withdrawing unobligated allotments in the middle of
the fiscal year, in effect deprived funding for PAPs with existing appropriations under the GAAs.155
The respondents belie the accusation, insisting that the unobligated allotments were being withdrawn upon the
instance of the implementing agencies based on their own assessment that they could not obligate those allotments
pursuant to the Presidents directive for them to spend their appropriations as quickly as they could in order to ramp
up the economy.156
We agree with the petitioners.
Contrary to the respondents insistence, the withdrawals were upon the initiative of the DBM itself. The text of NBC
No. 541 bears this out, to wit:
5.2 For the purpose of determining the amount of unobligated allotments that shall be withdrawn, all
departments/agencies/operating units (OUs) shall submit to DBM not later than July 30, 2012, the following budget
accountability reports as of June 30, 2012;
Statement of Allotments, Obligation and Balances (SAOB);
Financial Report of Operations (FRO); and
Physical Report of Operations.
5.3 In the absence of the June 30, 2012 reports cited under item 5.2 of this Circular, the agencys latest report
available shall be used by DBM as basis for withdrawal of allotment. The DBM shall compute/approximate the
agencys obligation level as of June 30 to derive its unobligated allotments as of same period. Example: If the March
31 SAOB or FRO reflects actual obligations of P 800M then the June 30 obligation level shall approximate toP1,600
M (i.e., P800 M x 2 quarters).
The petitioners assert that no law had authorized the withdrawal and transfer of unobligated allotments and the
pooling of unreleased appropriations; and that the unbridled withdrawal of unobligated allotments and the retention of
appropriated funds were akin to the impoundment of appropriations that could be allowed only in case of
"unmanageable national government budget deficit" under the GAAs,157 thus violating the provisions of the GAAs of
2011, 2012 and 2013 prohibiting the retention or deduction of allotments.158
In contrast, the respondents emphasize that NBC No. 541 adopted a spending, not saving, policy as a last-ditch
effort of the Executive to push agencies into actually spending their appropriations; that such policy did not amount to
an impoundment scheme, because impoundment referred to the decision of the Executive to refuse to spend funds
for political or ideological reasons; and that the withdrawal of allotments under NBC No. 541 was made pursuant to
Section 38, Chapter 5, Book VI of the Administrative Code, by which the President was granted the authority to
suspend or otherwise stop further expenditure of funds allotted to any agency whenever in his judgment the public
interest so required.
The assertions of the petitioners are upheld. The withdrawal and transfer of unobligated allotments and the pooling
of unreleased appropriations were invalid for being bereft of legal support. Nonetheless, such withdrawal of
unobligated allotments and the retention of appropriated funds cannot be considered as impoundment.
According to Philippine Constitution Association v. Enriquez:159 "Impoundment refers to a refusal by the President,
for whatever reason, to spend funds made available by Congress. It is the failure to spend or obligate budget
authority of any type." Impoundment under the GAA is understood to mean the retention or deduction of
appropriations. The 2011 GAA authorized impoundment only in case of unmanageable National Government budget
deficit, to wit:
Section 66. Prohibition Against Impoundment of Appropriations. No appropriations authorized under this Act shall be
impounded through retention or deduction, unless in accordance with the rules and regulations to be issued by the
DBM: PROVIDED, That all the funds appropriated for the purposes, programs, projects and activities authorized
under this Act, except those covered under the Unprogrammed Fund, shall be released pursuant to Section 33 (3),
Chapter 5, Book VI of E.O. No. 292.
Section 67. Unmanageable National Government Budget Deficit. Retention or deduction of appropriations authorized
in this Act shall be effected only in cases where there is an unmanageable national government budget deficit.
Unmanageable national government budget deficit as used in this section shall be construed to mean that (i) the
actual national government budget deficit has exceeded the quarterly budget deficit targets consistent with the fullyear target deficit as indicated in the FY 2011 Budget of
Expenditures and Sources of Financing submitted by the President and approved by Congress pursuant to Section
22, Article VII of the Constitution, or (ii) there are clear economic indications of an impending occurrence of such
condition, as determined by the Development Budget Coordinating Committee and approved by the President.
The 2012 and 2013 GAAs contained similar provisions.
The withdrawal of unobligated allotments under the DAP should not be regarded as impoundment because it
entailed only the transfer of funds, not the retention or deduction of appropriations.
Nor could Section 68 of the 2011 GAA (and the similar provisions of the 2012 and 2013 GAAs) be applicable. They
uniformly stated:
Section 68. Prohibition Against Retention/Deduction of Allotment. Fund releases from appropriations provided in this
Act shall be transmitted intact or in full to the office or agency concerned. No retention or deduction as reserves or
overhead shall be made, except as authorized by law, or upon direction of the President of the Philippines. The COA
shall ensure compliance with this provision to the extent that sub-allotments by agencies to their subordinate offices
are in conformity with the release documents issued by the DBM.
The provision obviously pertained to the retention or deduction of allotments upon their release from the DBM, which
was a different matter altogether. The Court should not expand the meaning of the provision by applying it to the
withdrawal of allotments.
The respondents rely on Section 38, Chapter 5, Book VI of the Administrative Code of 1987 to justify the withdrawal
of unobligated allotments. But the provision authorized only the suspension or stoppage of further expenditures, not
the withdrawal of unobligated allotments, to wit:
Section 38. Suspension of Expenditure of Appropriations.- Except as otherwise provided in the General
Appropriations Act and whenever in his judgment the public interest so requires, the President, upon notice to the
head of office concerned, is authorized to suspend or otherwise stop further expenditure of funds allotted for any
agency, or any other expenditure authorized in the General Appropriations Act, except for personal services
appropriations used for permanent officials and employees.
Moreover, the DBM did not suspend or stop further expenditures in accordance with Section 38, supra, but instead
transferred the funds to other PAPs.
It is relevant to remind at this juncture that the balances of appropriations that remained unexpended at the end of
the fiscal year were to be reverted to the General Fund.1wphi1 This was the mandate of Section 28, Chapter IV,
Book VI of the Administrative Code, to wit:
autonomy, and the Ombudsman are hereby authorized to use savings in their respective appropriations to augment
actual deficiencies incurred for the current year in any item of their respective appropriations.
As of 2013, a total of P144.4 billion worth of PAPs were implemented through the DAP.161
Of this amount P82.5 billion were released in 2011 and P54.8 billion in 2012.162 Sec. Abad has reported that 9% of
the total DAP releases were applied to the PAPs identified by the legislators.163
The petitioners disagree, however, and insist that the DAP supported the following PAPs that had not been covered
with appropriations in the respective GAAs, namely:
(i) P1.5 billion for the Cordillera Peoples Liberation Army;
(ii) P1.8 billion for the Moro National Liberation Front;
Section 28. Reversion of Unexpended Balances of Appropriations, Continuing Appropriations.- Unexpended

balances of appropriations authorized in the General Appropriation Act shall revert to the unappropriated surplus of
the General Fund at the end of the fiscal year and shall not thereafter be available for expenditure except by
subsequent legislative enactment: Provided, that appropriations for capital outlays shall remain valid until fully spent
or reverted: provided, further, that continuing appropriations for current operating expenditures may be specifically
recommended and approved as such in support of projects whose effective implementation calls for multi-year
expenditure commitments: provided, finally, that the President may authorize the use of savings realized by an
agency during given year to meet non-recurring expenditures in a subsequent year.
The balances of continuing appropriations shall be reviewed as part of the annual budget preparation process and
the preparation process and the President may approve upon recommendation of the Secretary, the reversion of
funds no longer needed in connection with the activities funded by said continuing appropriations.
The Executive could not circumvent this provision by declaring unreleased appropriations and unobligated allotments
as savings prior to the end of the fiscal year.
(iii) P700 million for assistance to Quezon Province;164

(iv) P50 million to P100 (million) each to certain senators;165
(v) P10 billion for the relocation of families living along dangerous zones under the National Housing
Authority;
(vi) P10 billion and P20 billion equity infusion under the Bangko Sentral;
(vii) P5.4 billion landowners compensation under the Department of Agrarian Reform;
(viii) P8.6 billion for the ARMM comprehensive peace and development program;
b.3. Third Requisite No funds from

savings could be transferred under
the DAP to augment deficient items
not provided in the GAA
(ix) P6.5 billion augmentation of LGU internal revenue allotments
The third requisite for a valid transfer of funds is that the purpose of the transfer should be "to augment an item in the
general appropriations law for the respective offices." The term "augment" means to enlarge or increase in size,
amount, or degree.160
(xi) P1.8 billion for the DAR-DPWH Tulay ng Pangulo;
The GAAs for 2011, 2012 and 2013 set as a condition for augmentation that the appropriation for the PAP item to be
augmented must be deficient, to wit:
x x x Augmentation implies the existence in this Act of a program, activity, or project with an appropriation, which
upon implementation, or subsequent evaluation of needed resources, is determined to be deficient. In no case shall
a non-existent program, activity, or project, be funded by augmentation from savings or by the use of appropriations
otherwise authorized in this Act.
In other words, an appropriation for any PAP must first be determined to be deficient before it could be augmented
from savings. Note is taken of the fact that the 2013 GAA already made this quite clear, thus:
(x) P5 billion for crucial projects like tourism road construction under the Department of Tourism and the
Department of Public Works and Highways;
(xii) P1.96 billion for the DOH-DPWH rehabilitation of regional health units; and
(xiii) P4 billion for the DepEd-PPP school infrastructure projects.166
In refutation, the OSG argues that a total of 116 DAP-financed PAPs were implemented, had appropriation covers,
and could properly be accounted for because the funds were released following and pursuant to the standard
practices adopted by the DBM.167 In support of its argument, the OSG has submitted seven evidence packets
containing memoranda, SAROs, and other pertinent documents relative to the implementation and fund transfers
under the DAP.168
Upon careful review of the documents contained in the seven evidence packets, we conclude that the "savings"
pooled under the DAP were allocated to PAPs that were not covered by any appropriations in the pertinent GAAs.
For example, the SARO issued on December 22, 2011 for the highly vaunted Disaster Risk, Exposure, Assessment
and Mitigation (DREAM) project under the Department of Science and Technology (DOST) covered the amount
ofP1.6 Billion,169 broken down as follows:
APPROPRIATION
CODE
A.03.a.01.a
PARTICULARS
AMOUNT
AUTHORIZED
Generation of new knowledge and technologies and research

capability building in priority areas identified as strategic to
National Development
Personnel Services
Maintenance and Other Operating Expenses
Capital Outlays
III.
Maintenance
and Other
Operating
Expenditures
Capital
Outlays
P 43,504,024
1,164,517,589
391,978,387
P 1,600,000,000
TOTAL
Operations
a.
Funding Assistance to Science

and Technology Activities
1.
Central Office
a. Generation of new
knowledge and
technologies and research
capability building in
priority areas identified as
strategic to National
Development
177,406,000
1,887,365,000
49,090,000
APPROPRIATION
CODE
A.02.a
the pertinent provision of the 2011 GAA (R.A. No. 10147) showed that Congress had appropriated onlyP537,910,000
for MOOE, but nothing for personnel services and capital outlays, to wit:
Personnel
Services
In relation to the December 22, 2011 SARO issued to the Philippine Council for Industry, Energy and Emerging
Technology Research and Development (DOST-PCIEETRD)171 for Establishment of the Advanced Failure Analysis
Laboratory, which reads:
2,113,861,000
1,554,238,000
1,554,238,000
537,910,000
537,910,000
Aside from this transfer under the DAP to the DREAM project exceeding by almost 300% the appropriation by
Congress for the program Generation of new knowledge and technologies and research capability building in priority
areas identified as strategic to National Development, the Executive allotted funds for personnel services and capital
outlays. The Executive thereby substituted its will to that of Congress. Worse, the Executive had not earlier proposed
any amount for personnel services and capital outlays in the NEP that became the basis of the 2011 GAA.170
It is worth stressing in this connection that the failure of the GAAs to set aside any amounts for an expense category
sufficiently indicated that Congress purposely did not see fit to fund, much less implement, the PAP concerned. This
indication becomes clearer when even the President himself did not recommend in the NEP to fund the PAP. The
consequence was that any PAP requiring expenditure that did not receive any appropriation under the GAAs could
only be a new PAP, any funding for which would go beyond the authority laid down by Congress in enacting the
GAAs. That happened in some instances under the DAP.
PARTICULARS
AMOUNT
AUTHORIZED
Development, integration and coordination of the National Research System

for Industry, Energy and Emerging Technology and Related Fields
Capital Outlays
P 300,000,000
the appropriation code and the particulars appearing in the SARO did not correspond to the program specified in the
GAA, whose particulars were Research and Management Services(inclusive of the following activities: (1)
Technological and Economic Assessment for Industry, Energy and Utilities; (2) Dissemination of Science and
Technology Information; and (3) Management of PCIERD Information System for Industry, Energy and Utilities. Even
assuming that Development, integration and coordination of the National Research System for Industry, Energy and
Emerging Technology and Related Fields the particulars stated in the SARO could fall under the broad program
description of Research and Management Services as appearing in the SARO, it would nonetheless remain a new
activity by reason of its not being specifically stated in the GAA. As such, the DBM, sans legislative authorization,
could not validly fund and implement such PAP under the DAP.
In defending the disbursements, however, the OSG contends that the Executive enjoyed sound discretion in
implementing the budget given the generality in the language and the broad policy objectives identified under the
GAAs;172 and that the President enjoyed unlimited authority to spend the initial appropriations under his authority to
declare and utilize savings,173 and in keeping with his duty to faithfully execute the laws.
Although the OSG rightly contends that the Executive was authorized to spend in line with its mandate to faithfully
execute the laws (which included the GAAs), such authority did not translate to unfettered discretion that allowed the
President to substitute his own will for that of Congress. He was still required to remain faithful to the provisions of
the GAAs, given that his power to spend pursuant to the GAAs was but a delegation to him from Congress. Verily,
the power to spend the public wealth resided in Congress, not in the Executive.174 Moreover, leaving the spending
power of the Executive unrestricted would threaten to undo the principle of separation of powers.175
Congress acts as the guardian of the public treasury in faithful discharge of its power of the purse whenever it
deliberates and acts on the budget proposal submitted by the Executive.176 Its power of the purse is touted as the
very foundation of its institutional strength,177 and underpins "all other legislative decisions and regulating the
balance of influence between the legislative and executive branches of government."178 Such enormous power
encompasses the capacity to generate money for the Government, to appropriate public funds, and to spend the
money.179 Pertinently, when it exercises its power of the purse, Congress wields control by specifying the PAPs for
which public money should be spent.
It is the President who proposes the budget but it is Congress that has the final say on matters of
appropriations.180For this purpose, appropriation involves two governing principles, namely: (1) "a Principle of the
Public Fisc, asserting that all monies received from whatever source by any part of the government are public funds;"
and (2) "a Principle of Appropriations Control, prohibiting expenditure of any public money without legislative
authorization."181To conform with the governing principles, the Executive cannot circumvent the prohibition by
Congress of an expenditure for a PAP by resorting to either public or private funds.182 Nor could the Executive
transfer appropriated funds resulting in an increase in the budget for one PAP, for by so doing the appropriation for
another PAP is necessarily decreased. The terms of both appropriations will thereby be violated.
b.4 Third Requisite Cross-border

augmentations from savings were
prohibited by the Constitution
By providing that the President, the President of the Senate, the Speaker of the House of Representatives, the Chief
Justice of the Supreme Court, and the Heads of the Constitutional Commissions may be authorized to augment any
item in the GAA "for their respective offices," Section 25(5), supra, has delineated borders between their offices, such
that funds appropriated for one office are prohibited from crossing over to another office even in the guise of
augmentation of a deficient item or items. Thus, we call such transfers of funds cross-border transfers or crossborder augmentations.
JUSTICE BERSAMIN:
These cross border examples, cross border augmentations were not supported by appropriations
SECRETARY ABAD:
They were, we were augmenting existing items within their (interrupted)
JUSTICE BERSAMIN:
To be sure, the phrase "respective offices" used in Section 25(5), supra, refers to the entire Executive, with respect to
the President; the Senate, with respect to the Senate President; the House of Representatives, with respect to the
Speaker; the Judiciary, with respect to the Chief Justice; the Constitutional Commissions, with respect to their
respective Chairpersons.
No, appropriations before you augmented because this is a cross border and the tenor or text of the Constitution is
quite clear as far as I am concerned. It says here, "The power to augment may only be made to increase any item in
the General Appropriations Law for their respective offices." Did you not feel constricted by this provision?
Did any cross-border transfers or augmentations transpire?
SECRETARY ABAD:
During the oral arguments on January 28, 2014, Sec. Abad admitted making some cross-border augmentations, to
wit:
Well, as the Constitution provides, the prohibition we felt was on the transfer of appropriations, Your Honor. What we
thought we did was to transfer savings which was needed by the Commission to address deficiency in an existing
item in both the Commission as well as in the House of Representatives; thats how we saw(interrupted)
JUSTICE BERSAMIN:
Alright, the whole time that you have been Secretary of Department of Budget and Management, did the Executive
Department ever redirect any part of savings of the National Government under your control cross border to another
department?
JUSTICE BERSAMIN:
So your position as Secretary of Budget is that you could do that?
SECRETARY ABAD:
SECRETARY ABAD:
In an extreme instances because(interrupted)
Well, in the Memos that we submitted to you, such an instance, Your Honor
JUSTICE BERSAMIN:
JUSTICE BERSAMIN:
No, no, in all instances, extreme or not extreme, you could do that, thats your feeling.
Can you tell me two instances? I dont recall having read your material.
SECRETARY ABAD:
SECRETARY ABAD:
Well, the first instance had to do with a request from the House of Representatives. They started building their elibrary in 2010 and they had a budget for about 207 Million but they lack about 43 Million to complete its 250 Million
requirements. Prior to that, the COA, in an audit observation informed the Speaker that they had to continue with that
construction otherwise the whole building, as well as the equipments therein may suffer from serious deterioration.
And at that time, since the budget of the House of Representatives was not enough to complete 250 Million, they
wrote to the President requesting for an augmentation of that particular item, which was granted, Your Honor. The
second instance in the Memos is a request from the Commission on Audit. At the time they were pushing very
strongly the good governance programs of the government and therefore, part of that is a requirement to conduct
audits as well as review financial reports of many agencies. And in the performance of that function, the Commission
on Audit needed information technology equipment as well as hire consultants and litigators to help them with their
audit work and for that they requested funds from the Executive and the President saw that it was important for the
Commission to be provided with those IT equipments and litigators and consultants and the request was granted,
Your Honor.
Well, in that particular situation when the request was made by the Commission and the House of Representatives,
we felt that we needed to respond because we felt(interrupted).183
The records show, indeed, that funds amounting to P143,700,000.00 and P250,000,000.00 were transferred under
the DAP respectively to the COA184 and the House of Representatives.185 Those transfers of funds, which
constituted cross-border augmentations for being from the Executive to the COA and the House of Representatives,
are graphed as follows:186
OFFICE
PURPOSE
DATE
RELEASED
AMOUNT
(In thousand pesos)
Reserve
Imposed
Releases
Commission on
Audit
IT Infrastructure Program and hiring of additional

litigation experts
11/11/11
Congress
House of
Representative
s
Completion of the construction of the Legislative Library

and Archives Building/Congressional e-library
07/23/12
143,700
207,034
(Savings of HOR)
May I know, Justice, where can we situate this in the text of the Constitution? Where do we actually derive the
concepts that transfers of appropriation from one branch to the other or what happened in DAP can be considered a
said? What particular text in the Constitution can we situate this?
250,000
The respondents further stated in their memorandum that the President "made available" to the "Commission on
Elections the savings of his department upon [its] request for funds"187 This was another instance of a crossborder augmentation.
The respondents justified all the cross-border transfers thusly:
99. The Constitution does not prevent the President from transferring savings of his department to another
department upon the latters request, provided it is the recipient department that uses such funds to augment its own
appropriation. In such a case, the President merely gives the other department access to public funds but he cannot
dictate how they shall be applied by that department whose fiscal autonomy is guaranteed by the Constitution.188
HONORABLE MENDOZA:
There is no particular provision or statutory provision for that matter, if Your Honor please. It is drawn from the fact
that the Executive is the executive in-charge of the success of the government.
JUSTICE LEONEN:
So, the residual powers labelled in Marcos v. Manglapus would be the basis for this theory of the government?
HONORABLE MENDOZA:
Yes, if Your Honor, please.
JUSTICE LEONEN:
In the oral arguments held on February 18, 2014, Justice Vicente V. Mendoza, representing Congress, announced a
different characterization of the cross-border transfers of funds as in the nature of "aid" instead of "augmentation,"
viz:
HONORABLE MENDOZA:
The cross-border transfers, if Your Honors please, is not an application of the DAP. What were these cross-border
transfers? They are transfers of savings as defined in the various General Appropriations Act. So, that makes it
similar to the DAP, the use of savings. There was a cross-border which appears to be in violation of Section 25,
paragraph 5 of Article VI, in the sense that the border was crossed. But never has it been claimed that the purpose
was to augment a deficient item in another department of the government or agency of the government. The crossborder transfers, if Your Honors please, were in the nature of [aid] rather than augmentations. Here is a government
entity separate and independent from the Executive Department solely in need of public funds. The President is
there 24 hours a day, 7 days a week. Hes in charge of the whole operation although six or seven heads of
government offices are given the power to augment. Only the President stationed there and in effect in-charge and
has the responsibility for the failure of any part of the government. You have election, for one reason or another, the
money is not enough to hold election. There would be chaos if no money is given as an aid, not to augment, but as
an aid to a department like COA. The President is responsible in a way that the other heads, given the power to
augment, are not. So, he cannot very well allow this, if Your Honor please.189
A while ago, Justice Carpio mentioned that the remedy is might be to go to Congress. That there are opportunities
and there have been opportunities of the President to actually go to Congress and ask for supplemental budgets?
HONORABLE MENDOZA:
If there is time to do that, I would say yes.
JUSTICE LEONEN:
So, the theory of aid rather than augmentation applies in extra-ordinary situation?
HONORABLE MENDOZA:
Very extra-ordinary situations.
JUSTICE LEONEN:
JUSTICE LEONEN:
But Counsel, this would be new doctrine, in case?
May I move to another point, maybe just briefly. I am curious that the position now, I think, of government is that
some transfers of savings is now considered to be, if Im not mistaken, aid not augmentation. Am I correct in my
hearing of your argument?
HONORABLE MENDOZA:
Thats our submission, if Your Honor, please.
HONORABLE MENDOZA:
Yes, if Your Honor please.190
Regardless of the variant characterizations of the cross-border transfers of funds, the plain text of Section 25(5),
supra, disallowing cross border transfers was disobeyed. Cross-border transfers, whether as augmentation, or as
aid, were prohibited under Section 25(5), supra.
JUSTICE LEONEN:
4.
Sourcing the DAP from unprogrammed
funds despite the original revenue targets

not having been exceeded was invalid
Funding under the DAP were also sourced from unprogrammed funds provided in the GAAs for 2011, 2012,and
2013. The respondents stress, however, that the unprogrammed funds were not brought under the DAP as savings,
but as separate sources of funds; and that, consequently, the release and use of unprogrammed funds were not
subject to the restrictions under Section 25(5), supra.
The documents contained in the Evidence Packets by the OSG have confirmed that the unprogrammed funds were
treated as separate sources of funds. Even so, the release and use of the unprogrammed funds were still subject to
restrictions, for, to start with, the GAAs precisely specified the instances when the unprogrammed funds could be
released and the purposes for which they could be used.
The petitioners point out that a condition for the release of the unprogrammed funds was that the revenue collections
must exceed revenue targets; and that the release of the unprogrammed funds was illegal because such condition
was not met.191
The respondents disagree, holding that the release and use of the unprogrammed funds under the DAP were in
accordance with the pertinent provisions of the GAAs. In particular, the DBM avers that the unprogrammed funds
could be availed of when any of the following three instances occur, to wit: (1) the revenue collections exceeded the
original revenue targets proposed in the BESFs submitted by the President to Congress; (2) new revenues were
collected or realized from sources not originally considered in the BESFs; or(3) newly-approved loans for foreign
assisted projects were secured, or when conditions were triggered for other sources of funds, such as perfected loan
agreements for foreign-assisted projects.192 This view of the DBM was adopted by all the respondents in their
Consolidated Comment.193
The BESFs for 2011, 2012 and 2013 uniformly defined "unprogrammed appropriations" as appropriations that
provided standby authority to incur additional agency obligations for priority PAPs when revenue collections
exceeded targets, and when additional foreign funds are generated.194 Contrary to the DBMs averment that there
were three instances when unprogrammed funds could be released, the BESFs envisioned only two instances. The
third mentioned by the DBM the collection of new revenues from sources not originally considered in the BESFs
was not included. This meant that the collection of additional revenues from new sources did not warrant the release
of the unprogrammed funds. Hence, even if the revenues not considered in the BESFs were collected or generated,
the basic condition that the revenue collections should exceed the revenue targets must still be complied with in
order to justify the release of the unprogrammed funds.
The view that there were only two instances when the unprogrammed funds could be released was bolstered by the
following texts of the Special Provisions of the 2011 and 2012 GAAs, to wit:
2011 GAA
1. Release of Fund. The amounts authorized herein shall be released only when the revenue collections exceed the
original revenue targets submitted by the President of the Philippines to Congress pursuant to Section 22, Article VII
of the Constitution, including savings generated from programmed appropriations for the year: PROVIDED, That
collections arising from sources not considered in the aforesaid original revenue targets may be used to cover
releases from appropriations in this Fund: PROVIDED, FURTHER, That in case of newly approved loans for foreignassisted projects, the existence of a perfected loan agreement for the purpose shall be sufficient basis for the
issuance of a SARO covering the loan proceeds: PROVIDED, FURTHERMORE, That if there are savings generated
from the programmed appropriations for the first two quarters of the year, the DBM may, subject to the approval of
the President, release the pertinent appropriations under the Unprogrammed Fund corresponding to only fifty
percent (50%) of the said savings net of revenue shortfall: PROVIDED, FINALLY, That the release of the balance of
the total savings from programmed appropriations for the year shall be subject to fiscal programming and approval of
the President.
2012 GAA
1. Release of the Fund. The amounts authorized herein shall be released only when the revenue collections exceed
the original revenue targets submitted by the President of the Philippines to Congress pursuant to Section 22, Article
VII of the Constitution: PROVIDED, That collections arising from sources not considered in the aforesaid original
revenue targets may be used to cover releases from appropriations in this Fund: PROVIDED, FURTHER, That in
case of newly approved loans for foreign-assisted projects, the existence of a perfected loan agreement for the
purpose shall be sufficient basis for the issuance of a SARO covering the loan proceeds.
As can be noted, the provisos in both provisions to the effect that "collections arising from sources not considered in
the aforesaid original revenue targets may be used to cover releases from appropriations in this Fund" gave the
authority to use such additional revenues for appropriations funded from the unprogrammed funds. They did not at
all waive compliance with the basic requirement that revenue collections must still exceed the original revenue
targets.
In contrast, the texts of the provisos with regard to additional revenues generated from newly-approved foreign loans
were clear to the effect that the perfected loan agreement would be in itself "sufficient basis" for the issuance of a
SARO to release the funds but only to the extent of the amount of the loan. In such instance, the revenue collections
need not exceed the revenue targets to warrant the release of the loan proceeds, and the mere perfection of the loan
agreement would suffice.
It can be inferred from the foregoing that under these provisions of the GAAs the additional revenues from sources
not considered in the BESFs must be taken into account in determining if the revenue collections exceeded the
revenue targets. The text of the relevant provision of the 2013 GAA, which was substantially similar to those of the
GAAs for 2011 and 2012, already made this explicit, thus:
1. Release of the Fund. The amounts authorized herein shall be released only when the revenue collections exceed
the original revenue targets submitted by the President of the Philippines to Congress pursuant to Section 22, Article
VII of the Constitution, including collections arising from sources not considered in the aforesaid original revenue
target, as certified by the BTr: PROVIDED, That in case of newly approved loans for foreign-assisted projects, the
existence of a perfected loan agreement for the purpose shall be sufficient basis for the issuance of a SARO
covering the loan proceeds.
Consequently, that there were additional revenues from sources not considered in the revenue target would not be
enough. The total revenue collections must still exceed the original revenue targets to justify the release of the
unprogrammed funds (other than those from newly-approved foreign loans).
The present controversy on the unprogrammed funds was rooted in the correct interpretation of the phrase "revenue
collections should exceed the original revenue targets." The petitioners take the phrase to mean that the total
revenue collections must exceed the total revenue target stated in the BESF, but the respondents understand the
phrase to refer only to the collections for each source of revenue as enumerated in the BESF, with the condition
being deemed complied with once the revenue collections from a particular source already exceeded the stated
target.
The BESF provided for the following sources of revenue, with the corresponding revenue target stated for each
source of revenue, to wit:
TAX REVENUES
Taxes on Net Income and Profits
Taxes on Property
Taxes on Domestic Goods and Services
General Sales, Turnover or VAT

Selected Excises on Goods
Selected Taxes on Services
Taxes on the Use of Goods or Property or Permission to Perform Activities
Other Taxes
Taxes on International Trade and Transactions
And, finally, for 2013, the OSG presented the certification dated July 3, 2013 issued by National Treasurer Rosalia V.
De Leon, to wit:
This is to certify that the actual dividend collections remitted to the National Government for the period January to
May 2013 amounted to P12.438 billion compared to the full year program of P10.0198 billion for 2013.
Moreover, the National Government accounted for the sale of the right to build and operate the NAIA expressway
amounting to P11.0 billion in June 2013.199
NON-TAX REVENUES
The certifications reflected that by collecting dividends amounting to P23.8 billion in 2011, P19.419 billion in 2012,
and P12.438 billion in 2013 the BTr had exceeded only the P5.5 billion in target revenues in the form of dividends
from stocks in each of 2011 and 2012, and only the P10 billion in target revenues in the form of dividends from
stocks in 2013.
Fees and Charges

BTR Income
Government Services
Interest on NG Deposits
Interest on Advances to Government Corporations
Income from Investments
Interest on Bond Holdings
Guarantee Fee
Gain on Foreign Exchange
NG Income Collected by BTr
Dividends on Stocks
NG Share from Airport Terminal Fee
NG Share from PAGCOR Income
NG Share from MIAA Profit
Privatization
Foreign Grants
Thus, when the Court required the respondents to submit a certification from the Bureau of Treasury (BTr) to the
effect that the revenue collections had exceeded the original revenue targets,195 they complied by submitting
certifications from the BTr and Department of Finance (DOF) pertaining to only one identified source of revenue the
dividends from the shares of stock held by the Government in government-owned and controlled corporations.
However, the requirement that revenue collections exceed the original revenue targets was to be construed in light of
the purpose for which the unprogrammed funds were incorporated in the GAAs as standby appropriations to support
additional expenditures for certain priority PAPs should the revenue collections exceed the resource targets assumed
in the budget or when additional foreign project loan proceeds were realized. The unprogrammed funds were
included in the GAAs to provide ready cover so as not to delay the implementation of the PAPs should new or
additional revenue sources be realized during the year.200 Given the tenor of the certifications, the unprogrammed
funds were thus not yet supported by the corresponding resources.201
The revenue targets stated in the BESF were intended to address the funding requirements of the proposed
programmed appropriations. In contrast, the unprogrammed funds, as standby appropriations, were to be released
only when there were revenues in excess of what the programmed appropriations required. As such, the revenue
targets should be considered as a whole, not individually; otherwise, we would be dealing with artificial revenue
surpluses. The requirement that revenue collections must exceed revenue target should be understood to mean that
the revenue collections must exceed the total of the revenue targets stated in the BESF. Moreover, to release the
unprogrammed funds simply because there was an excess revenue as to one source of revenue would be an
unsound fiscal management measure because it would disregard the budget plan and foster budget deficits, in
contravention of the Governments surplus budget policy.202
We cannot, therefore, subscribe to the respondents view.
5.
Equal protection, checks and balances,
and public accountability challenges
To justify the release of the unprogrammed funds for 2011, the OSG presented the certification dated March 4, 2011
issued by DOF Undersecretary Gil S. Beltran, as follows:
The DAP is further challenged as violative of the Equal Protection Clause, the system of checks and balances, and
the principle of public accountability.
This is to certify that under the Budget for Expenditures and Sources of Financing for 2011, the programmed income
from dividends from shares of stock in government-owned and controlled corporations is 5.5 billion.
With respect to the challenge against the DAP under the Equal Protection Clause,203 Luna argues that the
implementation of the DAP was "unfair as it [was] selective" because the funds released under the DAP was not
made available to all the legislators, with some of them refusing to avail themselves of the DAP funds, and others
being unaware of the availability of such funds. Thus, the DAP practised "undue favoritism" in favor of select
legislators in contravention of the Equal Protection Clause.
This is to certify further that based on the records of the Bureau of Treasury, the National Government has recorded
dividend income amounting to P23.8 billion as of 31 January 2011.196
For 2012, the OSG submitted the certification dated April 26, 2012 issued by National Treasurer Roberto B. Tan, viz:
This is to certify that the actual dividend collections remitted to the National Government for the period January to
March 2012 amounted to P19.419 billion compared to the full year program of P5.5 billion for 2012.197
Similarly, COURAGE contends that the DAP violated the Equal Protection Clause because no reasonable
classification was used in distributing the funds under the DAP; and that the Senators who supposedly availed
themselves of said funds were differently treated as to the amounts they respectively received.
Anent the petitioners theory that the DAP violated the system of checks and balances, Luna submits that the grant of
the funds under the DAP to some legislators forced their silence about the issues and anomalies surrounding the
DAP. Meanwhile, Belgica stresses that the DAP, by allowing the legislators to identify PAPs, authorized them to take
part in the implementation and execution of the GAAs, a function that exclusively belonged to the Executive; that
such situation constituted undue and unjustified legislative encroachment in the functions of the Executive; and that
the President arrogated unto himself the power of appropriation vested in Congress because NBC No. 541
authorized the use of the funds under the DAP for PAPs not considered in the 2012 budget.
Finally, the petitioners insist that the DAP was repugnant to the principle of public accountability enshrined in the
Constitution,204 because the legislators relinquished the power of appropriation to the Executive, and exhibited a
reluctance to inquire into the legality of the DAP.
The OSG counters the challenges, stating that the supposed discrimination in the release of funds under the DAP
could be raised only by the affected Members of Congress themselves, and if the challenge based on the violation of
the Equal Protection Clause was really against the constitutionality of the DAP, the arguments of the petitioners
should be directed to the entitlement of the legislators to the funds, not to the proposition that all of the legislators
should have been given such entitlement.
The challenge based on the contravention of the Equal Protection Clause, which focuses on the release of funds
under the DAP to legislators, lacks factual and legal basis. The allegations about Senators and Congressmen being
unaware of the existence and implementation of the DAP, and about some of them having refused to accept such
funds were unsupported with relevant data. Also, the claim that the Executive discriminated against some legislators
on the ground alone of their receiving less than the others could not of itself warrant a finding of contravention of the
Equal Protection Clause. The denial of equal protection of any law should be an issue to be raised only by parties
who supposedly suffer it, and, in these cases, such parties would be the few legislators claimed to have been
discriminated against in the releases of funds under the DAP. The reason for the requirement is that only such
affected legislators could properly and fully bring to the fore when and how the denial of equal protection occurred,
and explain why there was a denial in their situation. The requirement was not met here. Consequently, the Court
was not put in the position to determine if there was a denial of equal protection. To have the Court do so despite the
inadequacy of the showing of factual and legal support would be to compel it to speculate, and the outcome would
not do justice to those for whose supposed benefit the claim of denial of equal protection has been made.
The argument that the release of funds under the DAP effectively stayed the hands of the legislators from conducting
congressional inquiries into the legality and propriety of the DAP is speculative. That deficiency eliminated any need
to consider and resolve the argument, for it is fundamental that speculation would not support any proper judicial
determination of an issue simply because nothing concrete can thereby be gained. In order to sustain their
constitutional challenges against official acts of the Government, the petitioners must discharge the basic burden of
proving that the constitutional infirmities actually existed.205 Simply put, guesswork and speculation cannot
overcome the presumption of the constitutionality of the assailed executive act.
After declaring the DAP and its implementing issuances constitutionally infirm, we must now deal with the
consequences of the declaration.
Article 7 of the Civil Code provides:
Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by
disuse, or custom or practice to the contrary.
When the courts declared a law to be inconsistent with the Constitution, the former shall be void and the latter shall
govern.
Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or
the Constitution.
A legislative or executive act that is declared void for being unconstitutional cannot give rise to any right or
obligation.206 However, the generality of the rule makes us ponder whether rigidly applying the rule may at times be
impracticable or wasteful. Should we not recognize the need to except from the rigid application of the rule the
instances in which the void law or executive act produced an almost irreversible result?
The need is answered by the doctrine of operative fact. The doctrine, definitely not a novel one, has been
exhaustively explained in De Agbayani v. Philippine National Bank:207
The decision now on appeal reflects the orthodox view that an unconstitutional act, for that matter an executive order
or a municipal ordinance likewise suffering from that infirmity, cannot be the source of any legal rights or duties. Nor
can it justify any official act taken under it. Its repugnancy to the fundamental law once judicially declared results in
its being to all intents and purposes a mere scrap of paper. As the new Civil Code puts it: When the courts declare a
law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or
executive acts, orders and regulations shall be valid only when they are not contrary to the laws of the Constitution. It
is understandable why it should be so, the Constitution being supreme and paramount. Any legislative or executive
act contrary to its terms cannot survive.
We do not need to discuss whether or not the DAP and its implementation through the various circulars and
memoranda of the DBM transgressed the system of checks and balances in place in our constitutional system. Our
earlier expositions on the DAP and its implementing issuances infringing the doctrine of separation of powers
effectively addressed this particular concern.
Such a view has support in logic and possesses the merit of simplicity. It may not however be sufficiently realistic. It
does not admit of doubt that prior to the declaration of nullity such challenged legislative or executive act must have
been in force and had to be complied with. This is so as until after the judiciary, in an appropriate case, declares its
invalidity, it is entitled to obedience and respect. Parties may have acted under it and may have changed their
positions. What could be more fitting than that in a subsequent litigation regard be had to what has been done while
such legislative or executive act was in operation and presumed to be valid in all respects. It is now accepted as a
doctrine that prior to its being nullified, its existence as a fact must be reckoned with. This is merely to reflect
awareness that precisely because the judiciary is the governmental organ which has the final say on whether or not
a legislative or executive measure is valid, a period of time may have elapsed before it can exercise the power of
judicial review that may lead to a declaration of nullity. It would be to deprive the law of its quality of fairness and
justice then, if there be no recognition of what had transpired prior to such adjudication.
Anent the principle of public accountability being transgressed because the adoption and implementation of the DAP
constituted an assumption by the Executive of Congress power of appropriation, we have already held that the DAP
and its implementing issuances were policies and acts that the Executive could properly adopt and do in the
execution of the GAAs to the extent that they sought to implement strategies to ramp up or accelerate the economy
of the country.
In the language of an American Supreme Court decision: The actual existence of a statute, prior to such a
determination [of unconstitutionality], is an operative fact and may have consequences which cannot justly be
ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to
invalidity may have to be considered in various aspects, with respect to particular relations, individual and corporate,
and particular conduct, private and official."
6.
Doctrine of operative fact was applicable
The doctrine of operative fact recognizes the existence of the law or executive act prior to the determination of its
unconstitutionality as an operative fact that produced consequences that cannot always be erased, ignored or
disregarded. In short, it nullifies the void law or executive act but sustains its effects. It provides an exception to the
general rule that a void or unconstitutional law produces no effect.208 But its use must be subjected to great scrutiny
and circumspection, and it cannot be invoked to validate an unconstitutional law or executive act, but is resorted to
only as a matter of equity and fair play.209 It applies only to cases where extraordinary circumstances exist, and only
when the extraordinary circumstances have met the stringent conditions that will permit its application.
We find the doctrine of operative fact applicable to the adoption and implementation of the DAP. Its application to the
DAP proceeds from equity and fair play. The consequences resulting from the DAP and its related issuances could
not be ignored or could no longer be undone.
To be clear, the doctrine of operative fact extends to a void or unconstitutional executive act. The term executive act
is broad enough to include any and all acts of the Executive, including those that are quasi legislative and quasijudicial in nature. The Court held so in Hacienda Luisita, Inc. v. Presidential Agrarian Reform Council:210
Nonetheless, the minority is of the persistent view that the applicability of the operative fact doctrine should be limited
to statutes and rules and regulations issued by the executive department that are accorded the same status as that
of a statute or those which are quasi-legislative in nature. Thus, the minority concludes that the phrase executive act
used in the case of De Agbayani v. Philippine National Bank refers only to acts, orders, and rules and regulations that
have the force and effect of law. The minority also made mention of the Concurring Opinion of Justice Enrique
Fernando in Municipality of Malabang v. Benito, where it was supposedly made explicit that the operative fact
doctrine applies to executive acts, which are ultimately quasi-legislative in nature.
We disagree. For one, neither the De Agbayani case nor the Municipality of Malabang case elaborates what
executive act mean. Moreover, while orders, rules and regulations issued by the President or the executive branch
have fixed definitions and meaning in the Administrative Code and jurisprudence, the phrase executive act does not
have such specific definition under existing laws. It should be noted that in the cases cited by the minority, nowhere
can it be found that the term executive act is confined to the foregoing. Contrarily, the term executive act is broad
enough to encompass decisions of administrative bodies and agencies under the executive department which are
subsequently revoked by the agency in question or nullified by the Court.
A case in point is the concurrent appointment of Magdangal B. Elma (Elma) as Chairman of the Presidential
Commission on Good Government (PCGG) and as Chief Presidential Legal Counsel (CPLC) which was declared
unconstitutional by this Court in Public Interest Center, Inc. v. Elma. In said case, this Court ruled that the concurrent
appointment of Elma to these offices is in violation of Section 7, par. 2, Article IX-B of the 1987 Constitution, since
these are incompatible offices. Notably, the appointment of Elma as Chairman of the PCGG and as CPLC is, without
a question, an executive act. Prior to the declaration of unconstitutionality of the said executive act, certain acts or
transactions were made in good faith and in reliance of the appointment of Elma which cannot just be set aside or
invalidated by its subsequent invalidation.
In Tan v. Barrios, this Court, in applying the operative fact doctrine, held that despite the invalidity of the jurisdiction of
the military courts over civilians, certain operative facts must be acknowledged to have existed so as not to trample
upon the rights of the accused therein. Relevant thereto, in Olaguer v. Military Commission No. 34, it was ruled that
military tribunals pertain to the Executive Department of the Government and are simply instrumentalities of the
executive power, provided by the legislature for the President as Commander-in-Chief to aid him in properly
commanding the army and navy and enforcing discipline therein, and utilized under his orders or those of his
authorized military representatives.
Evidently, the operative fact doctrine is not confined to statutes and rules and regulations issued by the executive
department that are accorded the same status as that of a statute or those which are quasi-legislative in nature.
Even assuming that De Agbayani initially applied the operative fact doctrine only to executive issuances like orders
and rules and regulations, said principle can nonetheless be applied, by analogy, to decisions made by the President
or the agencies under the executive department. This doctrine, in the interest of justice and equity, can be applied
liberally and in a broad sense to encompass said decisions of the executive branch. In keeping with the demands of
equity, the Court can apply the operative fact doctrine to acts and consequences that resulted from the reliance not
only on a law or executive act which is quasi-legislative in nature but also on decisions or orders of the executive
branch which were later nullified. This Court is not unmindful that such acts and consequences must be recognized
in the higher interest of justice, equity and fairness.
Significantly, a decision made by the President or the administrative agencies has to be complied with because it has
the force and effect of law, springing from the powers of the President under the Constitution and existing laws. Prior
to the nullification or recall of said decision, it may have produced acts and consequences in conformity to and in
reliance of said decision, which must be respected. It is on this score that the operative fact doctrine should be
applied to acts and consequences that resulted from the implementation of the PARC Resolution approving the SDP
of HLI. (Bold underscoring supplied for emphasis)
In Commissioner of Internal Revenue v. San Roque Power Corporation,211 the Court likewise declared that "for the
operative fact doctrine to apply, there must be a legislative or executive measure, meaning a law or executive
issuance." Thus, the Court opined there that the operative fact doctrine did not apply to a mere administrative
practice of the Bureau of Internal Revenue, viz:
Under Section 246, taxpayers may rely upon a rule or ruling issued by the Commissioner from the time the rule or
ruling is issued up to its reversal by the Commissioner or this Court. The reversal is not given retroactive effect. This,
in essence, is the doctrine of operative fact. There must, however, be a rule or ruling issued by the Commissioner
that is relied upon by the taxpayer in good faith. A mere administrative practice, not formalized into a rule or ruling,
will not suffice because such a mere administrative practice may not be uniformly and consistently applied. An
administrative practice, if not formalized as a rule or ruling, will not be known to the general public and can be availed
of only by those with informal contacts with the government agency.
It is clear from the foregoing that the adoption and the implementation of the DAP and its related issuances were
executive acts.1avvphi1 The DAP itself, as a policy, transcended a merely administrative practice especially after the
Executive, through the DBM, implemented it by issuing various memoranda and circulars. The pooling of savings
pursuant to the DAP from the allotments made available to the different agencies and departments was consistently
applied throughout the entire Executive. With the Executive, through the DBM, being in charge of the third phase of
the budget cycle the budget execution phase, the President could legitimately adopt a policy like the DAP by virtue
of his primary responsibility as the Chief Executive of directing the national economy towards growth and
development. This is simply because savings could and should be determined only during the budget execution
phase.
As already mentioned, the implementation of the DAP resulted into the use of savings pooled by the Executive to
finance the PAPs that were not covered in the GAA, or that did not have proper appropriation covers, as well as to
augment items pertaining to other departments of the Government in clear violation of the Constitution. To declare
the implementation of the DAP unconstitutional without recognizing that its prior implementation constituted an
operative fact that produced consequences in the real as well as juristic worlds of the Government and the Nation is
to be impractical and unfair. Unless the doctrine is held to apply, the Executive as the disburser and the offices under
it and elsewhere as the recipients could be required to undo everything that they had implemented in good faith
under the DAP. That scenario would be enormously burdensome for the Government. Equity alleviates such burden.
The other side of the coin is that it has been adequately shown as to be beyond debate that the implementation of
the DAP yielded undeniably positive results that enhanced the economic welfare of the country. To count the positive
results may be impossible, but the visible ones, like public infrastructure, could easily include roads, bridges, homes
for the homeless, hospitals, classrooms and the like. Not to apply the doctrine of operative fact to the DAP could
literally cause the physical undoing of such worthy results by destruction, and would result in most undesirable
wastefulness.
Nonetheless, as Justice Brion has pointed out during the deliberations, the doctrine of operative fact does not always
apply, and is not always the consequence of every declaration of constitutional invalidity. It can be invoked only in
situations where the nullification of the effects of what used to be a valid law would result in inequity and
injustice;212 but where no such result would ensue, the general rule that an unconstitutional law is totally ineffective
should apply.
In that context, as Justice Brion has clarified, the doctrine of operative fact can apply only to the PAPs that can no
longer be undone, and whose beneficiaries relied in good faith on the validity of the DAP, but cannot apply to the
authors, proponents and implementors of the DAP, unless there are concrete findings of good faith in their favor by
the proper tribunals determining their criminal, civil, administrative and other liabilities.
WHEREFORE, the Court PARTIALLY GRANTS the petitions for certiorari and prohibition; and DECLARES the
following acts and practices under the Disbursement Acceleration Program, National Budget Circular No. 541 and
related executive issuances UNCONSTITUTIONAL for being in violation of Section 25(5), Article VI of the 1987
Constitution and the doctrine of separation of powers, namely:
(a) The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the
withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal
year and without complying with the statutory definition of savings contained in the General Appropriations
Acts;
(b) The cross-border transfers of the savings of the Executive to augment the appropriations of other
offices outside the Executive; and
(c) The funding of projects, activities and programs that were not covered by any appropriation in the
General Appropriations Act.
The Court further DECLARES VOID the use of unprogrammed funds despite the absence of a certification by the
National Treasurer that the revenue collections exceeded the revenue targets for non-compliance with the conditions
provided in the relevant General Appropriations Acts.
SO ORDERED.
G.R. No. 200903
July 22, 2014
KALIPUNAN NG DAMAY ANG MAHIBIRAP, INC., represented by its Vice-President, CARLITO BADION,
CORAZON DE JESUS HOMEOWNERS ASSOCIATION, represented by its President, ARNOLD REPIQUE,
FERNANDO SEVILLA as President of Samahang Pamata sa Kapatirang Kr.istiyano, ESTRELIETA
BAGASBAS, JOCY LOPEZ, ELVIRA VIDOL, and DELIA FRA YRES, Petitioners,
vs.
JESSIE ROBREDO, in his capacity as Secretary, Department of Interior and Local Government, Hon. GUIA
GOMEZ, in her capacity as MAYOR OF THE CITY. OF SAN JUAN, Hon. HERBERT BAUTISTA, in his capacity
as the MAYOR OF QUEZON CITY, Hon. JOHN REY TIANGCO, in his capacity as MAYOR OF NAVOTAS CITY,
and the GENERAL MANAGER of the NATIONAL HOUSING AUTHORITY, Respondents.
DECISION
BRION, J.:
This is a petition for prohibition and mandamus to enjoin the public respondents from evicting the individual
petitioners as well as the petitionerassociations members from their dwellings in the cities of San Juan, Navotas and
Quezon without any court order, and to compel the respondents to afford them judicial process prior to evictions and
demolitions. The petition primarily seeks to declare asunconstitutional Section 28 (a) and (b) of Republic Act No.
7279 (RA 7279), otherwise known as Urban Development Housing Act, which authorizes evictions and demolitions
under certain circumstances without any court order.
The Factual Antecedents
The members of petitioners Kalipunan ng Damayang Mahihirap, Inc. and Corazon de Jesus Homeowners
Association as well as the individual petitioners, Fernando Sevilla, Estrelieta Bagasbas, Jocy Lopez, Elvira Vidol and
Delia Frayres, were/are occupying parcels of land owned by and located in the cities of San Juan, Navotas and
Quezon (collectively, the LGUs1). These LGUs sent the petitioners notices of eviction and demolition pursuant to
Section 28 (a) and (b) of RA 7279 in order to give way to the implementation and construction of infrastructure
projects2 in the areas illegally occupied by the petitioners.3
Section 28 (a) and (b) of RA 7279 authorize evictions and demolitions without any court order when: (1) persons or
entities occupy danger areas such as esteros, railroad tracks, garbage dumps, riverbanks, shorelines, waterways,
and other public places suchas sidewalks, roads, parks, and playgrounds; and (2) persons or entities occupy areas
where government infrastructure projects with available funding are about to be implemented.
The Petition
On March 23, 2012, the petitionersdirectly filed a petition for prohibition and mandamus before the Court, seeking to
compel the Secretary of Interior and Local Government, et al. (the public respondents)to first secure an eviction
and/or demolition order from the court prior to their implementation of Section 28 (a) and (b) of RA 7279.
The petitioners justify their directrecourse before this Court by generally averring that they have no plain, speedy and
adequate remedy in the ordinary course of law.4 They also posit that the respondents gravely abused their discretion
in implementing Section 28 (a) and (b) of RA 7279 which are patently unconstitutional. They likewise insist that they
stand to be directly injured by the respondentsthreats of evictions and demolitions. In the alternative, they contend
that the transcendental public importance of the issues raised in this case clothes them with legal standing.5
The petitioners argue that Section 28 (a) and (b) of RA 7279 offend their constitutional right to due process because
they warrant evictions and demolitions without any court order. Theypoint out that Section 6, Article 3 of the 1987
Constitution expressly prohibits the impairment of liberty of abode unless there is a court order. Moreover, Section 28
(a) and (b) of RA 7279 violate their right to adequate housing, a universal right recognized in Article 25 of Universal
Declaration ofHuman Rights and Section 2 (a) of RA 7279. The petitioners further complain that the respondents had
previously conducted evictions and demolitions in a violent manner, contrary to Section 10, Article 13 of the 1987
Constitution.6
The Respondents Case
A. The Position of the Mayor of Navotas
The Mayor of Navotas prays for the outright dismissal of the petition for its serious procedural defects. First, the
petitioners ignored the hierarchy of courts when they directly filed a Rule 65 petition before the Court.7 Second, the
petitioners incorrectly availed themselves of a petition for prohibition and mandamus in assailing the constitutionality
of Section 28 (a) and (b) of RA 7279. According to the Mayor of Navotas, the office of a writ of prohibition is merely to
prevent the public respondents usurpation of power or improper assumption of jurisdiction. On the other hand, a writ
of mandamus only commands the public respondent to perform his ministerial functions. Third, the petitioners failed
to particularly state the grave abuse of discretion that the Mayor of Navotas allegedly committed. Fourth, the petition
does not present any justiciable controversy since the City of Navotas had already successfully evicted the
petitioners in San Roque, Navotas on November 28, 2011. Fifth, the petition was filed out of time since the
petitioners were personally notified of the intended eviction and demolition on September 23, 2011.8
The Mayor argues that Section 10, Article 13 of the 1987 Constitution allows evictions and demolitions to
beconducted even without a court order provided they are done in accordance withthe law and in a just and humane
manner. According to him, RA 7279 isprecisely the law referred to by Section 10, Article 13 of the 1987 Constitution.
The Mayor also disputes the petitioners claim that RA 7279 does notafford the informal settlers procedural due
process prior to evictions and demolitions. He points out that Section 28 of RA 7279 and its implementing rules and
regulations (IRR) mandate that the affected persons or entities shall be given notice at least thirty (30) days prior to
the date of eviction or demolition. The respondents are likewise required to consult with the duly designated
representatives of the affected families and communities with respect to their relocation. He further asserts that his
faithful implementation of Section 28 (a) and (b) of RA 7279, which are presumed to be constitutional, cannotbe
equated to grave abuse of discretion. Lastly, the Mayor of Navotas insists that the petitioners invocation of their right
to freely choose their abode is misplaced since they have no vested right to occupy properties that they do not own.9
B. The Position of the Mayor of San Juan
The Mayor of San Juan similarly argues that the petitioners improperly availed themselves of a petition for prohibition
and mandamus before the Court. She contends thatshe performed neither judicial nor ministerial functions in
implementing RA 7279, the enabling law of Section 10, Article 13 of the 1987 Constitution. She also maintains that
the petition has been rendered moot and academic by the successful eviction of some of the petitioners in
Pinaglabanan, Corazon de Jesus, San Juan. The Mayor of San Juan further stresses that Section 28 (a) and (b) of
RA 7279 already lay down the procedure in evicting informal settlers in a just and humane manner.10C. The Position
of the Mayor of Quezon
The Mayor of Quezon City holds that the petitioners premature invocation of the Courts power of judicial review and
their violation of the principle of hierarchy of courts are fatal to their cause of action. Moreover, the petitioners failed
to substantiate the material allegations in the petition. He additionally argues that his faithful implementation of RA
7279, which the legislature enacted inthe exercise of police power, does not amount to grave abuse of discretion.11
D. The Position of the Secretary ofInterior and Local Government
and the General Manager of the National Housing Authority

The Secretary of Interior and Local Government and the National Housing Authority (NHA)General Manager adopt
the Mayor of Navotas position that the petition is procedurally infirm. They further argue that the liberty of abode is
not illimitable and does not include the right to encroach upon other person properties. They also reiterate that
Section 28 of RA 7279 provides sufficient safeguards in ensuring that evictions and demolitions are carried out in a
just and humane manner.12
The Issues
This case presents to us the following issues:
(1) Whether the petition should be dismissed for serious procedural defects; and
(a) Whether the petitioners violated the principle of hierarchy of courts;
(b) Whether the petitioners correctlyavailed themselves of a petition for prohibition and
mandamus;
On the other hand, a petition for mandamus is merely directed against the tribunal, corporation, board, officer, or
person who unlawfully neglects the performance of an act which the law enjoins as a duty resulting from an office,
trust or station or who unlawfully excludes another from the use and enjoyment of a right or office to which such other
is entitled.16 Thus, a writ of mandamus will only issue to compel an officer to perform a ministerial duty. It will not
control a public officers exercise of discretion as where the law imposes upon him the duty to exercisehis judgment
in reference to any manner in which he is required to actprecisely because it is his judgment that is to be exercised,
not that of the court.17
In the present case, the petitionersseek to prohibit the respondents from implementing Section 28 (a) and (b) of RA
7279 without a prior court order of eviction and/or demolition. In relation to this, paragraph 1, Section 28 of RA 7279
provides:
Sec. 28. Eviction and Demolition. Eviction or demolition as a practice shall be discouraged. Eviction or demolition,
however, maybe allowed under the following situations:
(a) When persons or entities occupy danger areas such as esteros, railroad tracks, garbage dumps,
riverbanks, shorelines, waterways, and other public placessuch as sidewalks, roads, parks, and
playgrounds;
(b) When government infrastructure projects with available funding are about to be implemented;or
(2) Whether Section 28 (a) and (b) of RA 7279 are violative of Sections 1 and 6, Article 3 of the 1987
Constitution.
The Courts Ruling
We dismiss the petition.
The petitioners violated the principle of hierarchy of courts when they directly filed the petition before the Court.
The petitioners have unduly disregarded the hierarchy of courts by coming directly to the Court withtheir petition for
prohibition and mandamus. The petitioners appear to have forgotten that the Supreme Court is a court of last resort,
not a court offirst instance. The hierarchy of courts should serve as a general determinant of the appropriate forum
for Rule 65 petitions. The concurrence of jurisdiction among the Supreme Court, Court of Appeals and the Regional
Trial Courts to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction does not
give the petitioners the unrestricted freedom of choice of forum. By directly filing Rule 65 petitions before us, the
petitioners have unduly taxed the Courts time and attention which are better devoted to matters within our exclusive
jurisdiction. Worse, the petitioners only contributed to the overcrowding of the Court's docket. We also wish to
emphasize that the trial court is better equipped to resolve cases ofthis nature since this Court is not a trier of facts
and does not normallyundertake an examination of the contending parties evidence.13
(c) When there is a court order for eviction and demolition. (emphasis and underline ours)
A reading of this provision clearly shows that the acts complained of are beyond the scope of a petition for prohibition
and mandamus. The use of the permissive word "may" implies that the public respondents have discretion when
their duty to execute evictions and/or demolitions shall be performed. Where the words of a statute are clear, plain,
and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation.18
Consequently, the time when the public respondents shall carry out evictions and/or demolitions under Section 28
(a), (b), and (c) of RA 7279 is merely discretionary, and not ministerial, judicial or quasi-judicial. The duty is
discretionary if the law imposesa duty upon a public officer and gives him the right to decide when the duty shall be
performed.
In contrast, a ministerial duty is one which an officer or tribunal performs in a given state of facts,in a
prescribedmanner, in obedience to the mandate of a legal authority, without regard to or the exercise of his own
judgment upon the propriety or impropriety of the act done.19
On the other hand, both judicial and quasi-judicial functions involve the determination of what the law is, and what
the legal rights of the contending parties are, with respect tothe matter in controversy and, on the basis thereof and
the facts obtaining, the adjudication of their respective rights.20
The petitioners wrongly availed themselves of a petition for prohibition and mandamus.
The resolution of the constitutionality of Section 28 (a) and (b) of RA 7279 is not the lis motaof the case.
We cannot also ignore the petitioners glaring error in using a petition for prohibition and mandamus in the current
case.
The petitioners seem to have forgotten that a writ of prohibition only lies against the tribunal, corporation, board,
officer or persons exercise of judicial, quasi-judicial or ministerial functions.14 We issue a writ of prohibition to afford
the aggrieved party a relief against the respondents usurpation or grave abuse of jurisdiction or power.15
Even if we treat the present petition as one for certiorari since it assails the constitutionality of Section 28 (a) and (b)
of RA 7279, the petition must necessarily fail for failure to show the essential requisites that would warrant the
Courts exercise of judicial review. It is a rule firmly entrenched in our jurisprudence thatthe courts will not determine
the constitutionality of a law unless the following requisites are present: (1) the existence of an actual case or
controversy involving a conflict of legal rights susceptible of judicial determination; (2) the existence of personal and
substantial interest on the part ofthe party raising the constitutional question; (3) recourse to judicial review is made
at the earliest opportunity; and (4) the resolution of the constitutional question must be necessary to the decision of
the case.21
Save for the petition pertaining to the City of Quezons threat of eviction and demolition, this case no longer presents
a justiciable controversy with respect to the Mayors of Navotas and San Juan. We take note of the Comments of
these Mayors who alleged that they had already successfully evicted the concerned petitioners in their respective
cities at the time of the filing of the petition.
What further constrains this Court from touching on the issue of constitutionality is the fact that this issue is not the lis
mota of this case. Lis motaliterally means "the cause of the suit or action"; it is rooted in the principle of separation of
powers and is thus merely an offshoot of the presumption of validity accorded the executive and legislative acts of
our coequal branches of the government.
This means that the petitioner who claims the unconstitutionality of a law has the burden of showing first that the
case cannot be resolved unless the disposition of the constitutional question that he raised is unavoidable. If there is
some other ground upon which the court may rest its judgment, that course will be adopted and the question of
constitutionality should be avoided.22 Thus, to justify the nullification ofa law, there must be a clear and unequivocal
breach of the Constitution, and not one that is doubtful, speculative or argumentative.23
We carefully read the petitions and we conclude that they fail to compellingly show the necessity ofexamining the
constitutionality of Section 28 (a) and (b) of RA 7279 in the light of Sections 1 and 6, Article 3 of the 1987
Constitution.24 In Magkalas v. NHA,25 this Court had already ruled on the validity of evictions and demolitions
without any court order. In that case, we affirmed the validity ofSection 2 of Presidential Decree No. 1472 which
authorizes the NHA to summarily eject all informal settlers colonies on government resettlement projects as well as
any illegal occupant in any homelot, apartment or dwelling unit owned or administered by the NHA. In that case, we
held that Caridad Magkalas illegal possession of the property should not hinder the NHAs development of Bagong
Barrio Urban Bliss Project. We further stated that demolitions and evictions may be validly carried out even without a
judicial order in the following instances: (1) when the property involved is an expropriated property xxx pursuant to
Section 1 of P.D. No. 1315;
(2) when there are squatters on government resettlement projects and illegal occupants in any homelot,
apartment or dwelling unit owned or administered by the NHA pursuant to Section 2 of P.D. No. 1472;
(3) when persons or entities occupy danger areas such as esteros, railroad tracks, garbage dumps,
riverbanks, shorelines, waterways and other public places such as sidewalks, roads, parks and
playgrounds, pursuant toSection 28(a) of R.A. No. 7279;
(4) when government infrastructure projects with available funding are about to be implemented pursuant
to Section 28(b) of R.A. No. 7279.26 (emphasis ours)
We note that Section 10, Article13 of the 1987 Constitution provides that urban or rural poor dwellers shall not be
evicted nor their dwelling demolished, except in accordance withlaw and in a just and humane manner. Paragraph 1,
Section 28 of RA 7279 allows summary evictions and demolition in cases where persons orentities occupy danger
areas and when persons or entities occupy areas where government infrastructure projects with available funding
are about to be implemented.
To ensure that evictions and demolitions are conducted in a just and humane manner, paragraph 2, Section 28 of RA
7279 commands the public respondents to comply with the following prescribed procedure in executing eviction
and/or demolition orders:
In the execution of eviction or demolition orders involving underprivileged and homeless citizens, the following shall
be mandatory:
(1) Notice upon the effected persons orentities at least thirty (30) days prior to the date of eviction or
demolition;
(2) Adequate consultations on the matter of settlement with the duly designated representatives of the
families to be resettled and the affected communities in the areas where they are to be relocated;
(3) Presence of local government officials or their representatives during eviction or demolition;
(4) Proper identification of all persons taking part in the demolition;
(5) Execution of eviction or demolition only during regular office hours from Mondays to Fridays and during
good weather, unless the affected families consent otherwise;
(6) No use of heavy equipment for demolition except for structures that are permanent and of concrete
materials;
(7) Proper uniforms for members ofthe Philippine National Police who shall occupy the first line of law
enforcement and observe proper disturbance control procedures; and
(8) Adequate relocation, whether temporary or permanent: Provided, however, That in cases of eviction
and demolition pursuant to a court order involving underprivileged and homeless citizens, relocation shall
be undertaken by the local government unit concerned and the National Housing Authority with the
assistance of other government agencies within forty-five (45) days from service of notice of final judgment
by the court, after which period the said order shall be executed: Provided, further, That should relocation
not be possible within the said period, financial assistance in the amount equivalent to the prevailing
minimum daily wage multiplied by sixty (60) days shall be extended to the affected families by the local
government unit concerned.
This Department of the Interior and Local Government and the Housing and Urban Development Coordinating
Council shall jointly promulgate the necessary rules and regulations to carry out the above provision.
Lastly, the petitioners failed to substantiate their allegations that the public respondents gravely abused their
discretion in implementing Section 28 (a) and (b) of RA 7279. Instead, theymerely imputed jurisdictional abuse to the
public respondents through general averments in their pleading, but without any basis to support their claim.
This is precisely the reason why we frown upon the direct filing of Rule 65 petitions before the Court.1wphi1 To the
point of being repetitive, we (xxx source text missing)
Lastly, the petitioners failed to substantiate their allegations that the public respondents gravely abused their
discretion in implementing Section 28 (a) and (b) of RA 7279. Instead, they merely imputed jurisdictional abuse to the
public respondents through general averments in their pleading, but without any basis to support their claim.
This is precisely the reason why we frown upon the direct filing of Rule 65 petitions before the Court. To the point of
being repetitive, we emphasize that we are not trier of facts and this applies with greater force to Rule 65 petitions
which are original and independent actions. To justify judicial intrusion into what is fundamentally the domain of the
executive department, the petitioners must establish facts that are necessarily linked to the jurisdictional problem
they presented in this case, i.e., whether the public respondents exercised their power in an arbitrary and despotic
manner by reason of passion or personal hostility in implementing Section 28 (a) and (b) of RA 7279.
Since the petitioners failed to establish that the public respondents' alleged abuse of discretion was so patent and
gross as to amount to an evasion or to a unilateral refusal to perform the duty enjoined or to act in contemplation of
law, this petition must necessarily fail.27
WHEREFORE, premises considered, we hereby DISMISS the petition for its serious procedural defects. No costs.
SO ORDERED.

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G.R. No.

DENNIS A.B. FUNA, Petitioner,

This is a petition for mandamus1 to compel:

2.) the MECO to submit to such audit and examination.

We begin with the preliminary issues.

We sustain petitioners standing, as a concerned citizen, to file the instant petition.

1. The government, or any of its subdivisions, agencies and instrumentalities;

2. Non-governmental entities "required to pay levy or government share";

Principle of Hierarchy of Courts

We examine both contentions.

SECTION VI. OFFICERS: DUTIES, COMPENSATION

G.R. No. 203335

The Issues Presented

The Rulings of the Court

a. Section 4(a)(1) on Illegal Access;

Section 4(c)(1) of the Cybercrime Law

Section 4(c)(3) of the Cybercrime Law

Section 4(c)(3) provides:

Articles 353, 354, and 355 of the Penal Code

Section 5 of the Cybercrime Law

Section 6 of the Cybercrime Law

Section 7 of the Cybercrime Law

Section 20 of the Cybercrime Law

f. Section 4(c)(2) that penalizes the production of child pornography;

G.R. No. 204819

Prior to the RH Law

3] Freedom of Religion and the Right to Free Speech

So, there is no life to be protected.

(a) Induces abortion; or

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

Proviso Under Section 9 of the RH Law

Finally, Section 9, Article XVI provides:

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

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

The Respondents' Positions

Senior State Solicitor Hilbay:

Senior State Solicitor Hilbay:

Ahh, Your Honor, ..

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

4-The Family and the Right to Privacy

The Family and Spousal Consent

The following acts are prohibited:

9-Delegation of Authority to the FDA

The antecedent facts follow.

April 29, 2014

LITO CORPUZ, Petitioner,

1. With unfaithfulness or abuse of confidence, namely:

a I talked to him, sir.

a About the items I gave to (sic) him, sir.

a I went looking for him, sir.

1. P12,000.00 to P22,000.00 will become P1,200,000.00 to P2,200,000.00, punished by prision mayor

(3) It is not limited to existing conditions only; and

Well, my presen ... (interrupted)

But if we de ... (interrupted)

No, Your Honor.

The amount in excess of Twenty-Two Thousand (P22,000.00) Pesos.

Thank you, Dean.

No, Your Honor.

Consumer price index.

That is my position that the Supreme Court ...

Maximum - 6 years, 8 months, 21 days to 8 years

G.R. No. 209287

G.R. No. 209155