G.R. No.

208566 November 19, 2013

GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR. JOSE L. GONZALEZ REUBEN M.
ABANTE and QUINTIN PAREDES SAN DIEGO, Petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR. SECRETARY OF BUDGET AND
MANAGEMENT FLORENCIO B. ABAD, NATIONAL TREASURER ROSALIA V. DE LEON SENATE OF
THE PHILIPPINES represented by FRANKLIN M. DRILON m his capacity as SENATE PRESIDENT
and HOUSE OF REPRESENTATIVES represented by FELICIANO S. BELMONTE, JR. in his capacity
as SPEAKER OF THE HOUSE, Respondents.
x-----------------------x
G.R. No. 208493
SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON S. ALCANTARA, Petitioner,
vs.
HONORABLE FRANKLIN M. DRILON in his capacity as SENATE PRESIDENT and HONORABLE
FELICIANO S. BELMONTE, JR., in his capacity as SPEAKER OF THE HOUSE OF
REPRESENTATIVES, Respondents.
x-----------------------x
G.R. No. 209251
PEDRITO M. NEPOMUCENO, Former Mayor-Boac, Marinduque Former Provincial Board Member
-Province of Marinduque, Petitioner,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III * and SECRETARY FLORENCIO BUTCH ABAD,
DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.
DECISION
PERLAS-BERNABE, J.:
"Experience is the oracle of truth."1
-James Madison
Before the Court are consolidated petitions 2 taken under Rule 65 of the Rules of Court, all of which assail
the constitutionality of the Pork Barrel System. Due to the complexity of the subject matter, the Court shall
heretofore discuss the system‘s conceptual underpinnings before detailing the particulars of the
constitutional challenge.
The Facts
I. Pork Barrel: General Concept.
"Pork Barrel" is political parlance of American -English origin. 3 Historically, its usage may be traced
to the degrading ritual of rolling out a barrel stuffed with pork to a multitude of black slaves who
would cast their famished bodies into the porcine feast to assuage their hunger with morsels
coming from the generosity of their well-fed master. 4 This practice was later compared to the
actions of American legislators in trying to direct federal budgets in favor of their districts. 5 While the
advent of refrigeration has made the actual pork barrel obsolete, it persists in reference to political
bills that "bring home the bacon" to a legislator‘s district and constituents. 6 In a more technical
sense, "Pork Barrel" refers to an appropriation of government spending meant for localized projects
and secured solely or primarily to bring money to a representative's district. 7 Some scholars on the
subject further use it to refer to legislative control of local appropriations. 8
In the Philippines, "Pork Barrel" has been commonly referred to as lump-sum, discretionary funds of
Members of the Legislature,9 although, as will be later discussed, its usage would evolve in
reference to certain funds of the Executive.
II. History of Congressional Pork Barrel in the Philippines.
A. Pre-Martial Law Era (1922-1972).

Act 3044,10 or the Public Works Act of 1922, is considered 11 as the earliest form of
"Congressional Pork Barrel" in the Philippines since the utilization of the funds
appropriated therein were subjected to post-enactment legislator approval. Particularly,
in the area of fund release, Section 312 provides that the sums appropriated for certain
public works projects13 "shall be distributed x x x subject to the approval of a joint
committee elected by the Senate and the House of Representatives. "The committee
from each House may also authorize one of its members to approve the distribution
made by the Secretary of Commerce and Communications." 14 Also, in the area of fund
realignment, the same section provides that the said secretary, "with the approval of
said joint committee, or of the authorized members thereof, may, for the purposes of
said distribution, transfer unexpended portions of any item of appropriation under this
Act to any other item hereunder."

In 1950, it has been documented 15 that post-enactment legislator participation

broadened from the areas of fund release and realignment to the area of project
identification. During that year, the mechanics of the public works act was modified to
the extent that the discretion of choosing projects was transferred from the Secretary of
Commerce and Communications to legislators. "For the first time, the law carried a list
of projects selected by Members of Congress, they ‘being the representatives of the
people, either on their own account or by consultation with local officials or civil
leaders.‘"16 During this period, the pork barrel process commenced with local
government councils, civil groups, and individuals appealing to Congressmen or
Senators for projects. Petitions that were accommodated formed part of a legislator‘s
allocation, and the amount each legislator would eventually get is determined in a
caucus convened by the majority. The amount was then integrated into the
administration bill prepared by the Department of Public Works and Communications.
Thereafter, the Senate and the House of Representatives added their own provisions to
the bill until it was signed into law by the President – the Public Works Act. 17 In the
1960‘s, however, pork barrel legislation reportedly ceased in view of the stalemate
between the House of Representatives and the Senate. 18

B. Martial Law Era (1972-1986).

While the previous" Congressional Pork Barrel" was apparently discontinued in 1972
after Martial Law was declared, an era when "one man controlled the legislature," 19 the
reprieve was only temporary. By 1982, the Batasang Pambansa had already introduced
a new item in the General Appropriations Act (GAA) called the" Support for Local
Development Projects" (SLDP) under the article on "National Aid to Local Government
Units". Based on reports,20 it was under the SLDP that the practice of giving lump-sum
allocations to individual legislators began, with each assemblyman receiving
₱500,000.00. Thereafter, assemblymen would communicate their project preferences
to the Ministry of Budget and Management for approval. Then, the said ministry would
release the allocation papers to the Ministry of Local Governments, which would, in
turn, issue the checks to the city or municipal treasurers in the assemblyman‘s locality.
It has been further reported that "Congressional Pork Barrel" projects under the SLDP
also began to cover not only public works projects, or so- called "hard projects", but
also "soft projects",21 or non-public works projects such as those which would fall under
the categories of, among others, education, health and livelihood.22

C. Post-Martial Law Era:

Corazon Cojuangco Aquino Administration (1986-1992).

 After the EDSA People Power Revolution in 1986 and the restoration of Philippine
democracy, "Congressional Pork Barrel" was revived in the form of the "Mindanao
Development Fund" and the "Visayas Development Fund" which were created with
lump-sum appropriations of ₱480 Million and ₱240 Million, respectively, for the funding
of development projects in the Mindanao and Visayas areas in 1989. It has been
documented23 that the clamor raised by the Senators and the Luzon legislators for a
similar funding, prompted the creation of the "Countrywide Development Fund" (CDF)
which was integrated into the 1990 GAA 24 with an initial funding of ₱2.3 Billion to cover
"small local infrastructure and other priority community projects."

Under the GAAs for the years 1991 and 1992, 25 CDF funds were, with the approval of
the President, to be released directly to the implementing agencies but "subject to the
submission of the required list of projects and activities."Although the GAAs from 1990
to 1992 were silent as to the amounts of allocations of the individual legislators, as well
as their participation in the identification of projects, it has been reported 26 that by 1992,
Representatives were receiving ₱12.5 Million each in CDF funds, while Senators were
receiving ₱18 Million each, without any limitation or qualification, and that they could
identify any kind of project, from hard or infrastructure projects such as roads, bridges,
and buildings to "soft projects" such as textbooks, medicines, and scholarships. 27

D. Fidel Valdez Ramos (Ramos) Administration (1992-1998).

The following year, or in 1993, 28 the GAA explicitly stated that the release of CDF funds
was to be made upon the submission of the list of projects and activities identified by,
among others, individual legislators. For the first time, the 1993 CDF Article included an
allocation for the Vice-President.29 As such, Representatives were allocated ₱12.5
Million each in CDF funds, Senators, ₱18 Million each, and the Vice-President, ₱20
Million.

In 1994,30 1995,31 and 1996,32 the GAAs contained the same provisions on project
identification and fund release as found in the 1993 CDF Article. In addition, however,
the Department of Budget and Management (DBM) was directed to submit reports to
the Senate Committee on Finance and the House Committee on Appropriations on the
releases made from the funds.33

Under the 199734 CDF Article, Members of Congress and the Vice-President, in
consultation with the implementing agency concerned, were directed to submit to the
DBM the list of 50% of projects to be funded from their respective CDF allocations
which shall be duly endorsed by (a) the Senate President and the Chairman of the
Committee on Finance, in the case of the Senate, and (b) the Speaker of the House of
Representatives and the Chairman of the Committee on Appropriations, in the case of
the House of Representatives; while the list for the remaining 50% was to be submitted
within six (6) months thereafter. The same article also stated that the project list, which
would be published by the DBM, 35 "shall be the basis for the release of funds" and that
"no funds appropriated herein shall be disbursed for projects not included in the list
herein required."

The following year, or in 1998, 36 the foregoing provisions regarding the required lists
and endorsements were reproduced, except that the publication of the project list was
no longer required as the list itself sufficed for the release of CDF Funds.

The CDF was not, however, the lone form of "Congressional Pork Barrel" at that time.
Other forms of "Congressional Pork Barrel" were reportedly fashioned and inserted into
the GAA (called "Congressional Insertions" or "CIs") in order to perpetuate the ad
 ministration‘s political agenda.37 It has been articulated that since CIs "formed part and
parcel of the budgets of executive departments, they were not easily identifiable and
were thus harder to monitor." Nonetheless, the lawmakers themselves as well as the
finance and budget officials of the implementing agencies, as well as the DBM,
purportedly knew about the insertions. 38 Examples of these CIs are the Department of
Education (DepEd) School Building Fund, the Congressional Initiative Allocations, the
Public Works Fund, the El Niño Fund, and the Poverty Alleviation Fund. 39 The
allocations for the School Building Fund, particularly, ―shall be made upon prior
consultation with the representative of the legislative district concerned.” 40 Similarly, the
legislators had the power to direct how, where and when these appropriations were to
be spent.41

E. Joseph Ejercito Estrada (Estrada) Administration (1998-2001).

In 1999,42 the CDF was removed in the GAA and replaced by three (3) separate forms
of CIs, namely, the "Food Security Program Fund," 43 the "Lingap Para Sa Mahihirap
Program Fund,"44 and the "Rural/Urban Development Infrastructure Program
Fund,"45 all of which contained a special provision requiring "prior consultation" with the
Member s of Congress for the release of the funds.

It was in the year 200046 that the "Priority Development Assistance Fund" (PDAF)
appeared in the GAA. The requirement of "prior consultation with the respective
Representative of the District" before PDAF funds were directly released to the
implementing agency concerned was explicitly stated in the 2000 PDAF Article.
Moreover, realignment of funds to any expense category was expressly allowed, with
the sole condition that no amount shall be used to fund personal services and other
personnel benefits.47 The succeeding PDAF provisions remained the same in view of
the re-enactment48 of the 2000 GAA for the year 2001.

F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010).

The 200249 PDAF Article was brief and straightforward as it merely contained a single
special provision ordering the release of the funds directly to the implementing agency
or local government unit concerned, without further qualifications. The following year,
2003,50 the same single provision was present, with simply an expansion of purpose
and express authority to realign. Nevertheless, the provisions in the 2003 budgets of
the Department of Public Works and Highways 51 (DPWH) and the DepEd52 required
prior consultation with Members of Congress on the aspects of implementation
delegation and project list submission, respectively. In 2004, the 2003 GAA was re-
enacted.53

In 2005,54 the PDAF Article provided that the PDAF shall be used "to fund priority
programs and projects under the ten point agenda of the national government and shall
be released directly to the implementing agencies." It also introduced the program
menu concept,55 which is essentially a list of general programs and implementing
agencies from which a particular PDAF project may be subsequently chosen by the
identifying authority. The 2005 GAA was re-enacted 56 in 2006 and hence, operated on
the same bases. In similar regard, the program menu concept was consistently
integrated into the 2007,57 2008,58 2009,59 and 201060 GAAs.

Textually, the PDAF Articles from 2002 to 2010 were silent with respect to the specific
amounts allocated for the individual legislators, as well as their participation in the
proposal and identification of PDAF projects to be funded. In contrast to the PDAF
Articles, however, the provisions under the DepEd School Building Program and the
 DPWH budget, similar to its predecessors, explicitly required prior consultation with the
concerned Member of Congress61 anent certain aspects of project implementation.

Significantly, it was during this era that provisions which allowed formal participation of
non-governmental organizations (NGO) in the implementation of government projects
were introduced. In the Supplemental Budget for 2006, with respect to the
appropriation for school buildings, NGOs were, by law, encouraged to participate. For
such purpose, the law stated that "the amount of at least ₱250 Million of the ₱500
Million allotted for the construction and completion of school buildings shall be made
available to NGOs including the Federation of Filipino-Chinese Chambers of
Commerce and Industry, Inc. for its "Operation Barrio School" program, with capability
and proven track records in the construction of public school buildings x x x." 62 The
same allocation was made available to NGOs in the 2007 and 2009 GAAs under the
DepEd Budget.63 Also, it was in 2007 that the Government Procurement Policy
Board64 (GPPB) issued Resolution No. 12-2007 dated June 29, 2007 (GPPB
Resolution 12-2007), amending the implementing rules and regulations 65 of RA
9184,66 the Government Procurement Reform Act, to include, as a form of negotiated
procurement,67 the procedure whereby the Procuring Entity68 (the implementing
agency) may enter into a memorandum of agreement with an NGO, provided that "an
appropriation law or ordinance earmarks an amount to be specifically contracted out to
NGOs."69

G. Present Administration (2010-Present).

Differing from previous PDAF Articles but similar to the CDF Articles, the 2011 70 PDAF
Article included an express statement on lump-sum amounts allocated for individual
legislators and the Vice-President: Representatives were given ₱70 Million each,
broken down into ₱40 Million for "hard projects" and ₱30 Million for "soft projects";
while ₱200 Million was given to each Senator as well as the Vice-President, with a
₱100 Million allocation each for "hard" and "soft projects." Likewise, a provision on
realignment of funds was included, but with the qualification that it may be allowed only
once. The same provision also allowed the Secretaries of Education, Health, Social
Welfare and Development, Interior and Local Government, Environment and Natural
Resources, Energy, and Public Works and Highways to realign PDAF Funds, with the
further conditions that: (a) realignment is within the same implementing unit and same
project category as the original project, for infrastructure projects; (b) allotment
released has not yet been obligated for the original scope of work, and (c) the request
for realignment is with the concurrence of the legislator concerned.71

In the 201272 and 201373 PDAF Articles, it is stated that the "identification of projects
and/or designation of beneficiaries shall conform to the priority list, standard or design
prepared by each implementing agency (priority list requirement) x x x." However, as
practiced, it would still be the individual legislator who would choose and identify the
project from the said priority list.74

Provisions on legislator allocations75 as well as fund realignment76 were included in the

2012 and 2013 PDAF Articles; but the allocation for the Vice-President, which was
pegged at ₱200 Million in the 2011 GAA, had been deleted. In addition, the 2013 PDAF
Article now allowed LGUs to be identified as implementing agencies if they have the
technical capability to implement the projects.77 Legislators were also allowed to
identify programs/projects, except for assistance to indigent patients and scholarships,
outside of his legislative district provided that he secures the written concurrence of the
legislator of the intended outside-district, endorsed by the Speaker of the
House.78 Finally, any realignment of PDAF funds, modification and revision of project
identification, as well as requests for release of funds, were all required to be favorably
 endorsed by the House Committee on Appropriations and the Senate Committee on
Finance, as the case may be.79

III. History of Presidential Pork Barrel in the Philippines.

While the term "Pork Barrel" has been typically associated with lump-sum, discretionary funds of
Members of Congress, the present cases and the recent controversies on the matter have,
however, shown that the term‘s usage has expanded to include certain funds of the President such
as the Malampaya Funds and the Presidential Social Fund.
On the one hand, the Malampaya Funds was created as a special fund under Section 8 80 of
Presidential Decree No. (PD) 910,81 issued by then President Ferdinand E. Marcos (Marcos) on
March 22, 1976. In enacting the said law, Marcos recognized the need to set up a special fund to
help intensify, strengthen, and consolidate government efforts relating to the exploration,
exploitation, and development of indigenous energy resources vital to economic growth. 82 Due to
the energy-related activities of the government in the Malampaya natural gas field in Palawan, or
the "Malampaya Deep Water Gas-to-Power Project", 83 the special fund created under PD 910 has
been currently labeled as Malampaya Funds.
On the other hand the Presidential Social Fund was created under Section 12, Title IV 84 of PD
1869,85 or the Charter of the Philippine Amusement and Gaming Corporation (PAGCOR). PD 1869
was similarly issued by Marcos on July 11, 1983. More than two (2) years after, he amended PD
1869 and accordingly issued PD 1993 on October 31, 1985, 86 amending Section 1287 of the former
law. As it stands, the Presidential Social Fund has been described as a special funding facility
managed and administered by the Presidential Management Staff through which the President
provides direct assistance to priority programs and projects not funded under the regular budget. It
is sourced from the share of the government in the aggregate gross earnings of PAGCOR. 88
IV. Controversies in the Philippines.
Over the decades, "pork" funds in the Philippines have increased tremendously, 89 owing in no small
part to previous Presidents who reportedly used the "Pork Barrel" in order to gain congressional
support.90 It was in 1996 when the first controversy surrounding the "Pork Barrel" erupted. Former
Marikina City Representative Romeo Candazo (Candazo), then an anonymous source, "blew the lid
on the huge sums of government money that regularly went into the pockets of legislators in the
form of kickbacks."91 He said that "the kickbacks were ‘SOP‘ (standard operating procedure) among
legislators and ranged from a low 19 percent to a high 52 percent of the cost of each project, which
could be anything from dredging, rip rapping, sphalting, concreting, and construction of school
buildings."92 "Other sources of kickbacks that Candazo identified were public funds intended for
medicines and textbooks. A few days later, the tale of the money trail became the banner story of
the Philippine Daily Inquirer issue of August 13, 1996, accompanied by an illustration of a roasted
pig."93 "The publication of the stories, including those about congressional initiative allocations of
certain lawmakers, including ₱3.6 Billion for a Congressman, sparked public outrage." 94
Thereafter, or in 2004, several concerned citizens sought the nullification of the PDAF as enacted in
the 2004 GAA for being unconstitutional. Unfortunately, for lack of "any pertinent evidentiary support
that illegal misuse of PDAF in the form of kickbacks has become a common exercise of
unscrupulous Members of Congress," the petition was dismissed.95
Recently, or in July of the present year, the National Bureau of Investigation (NBI) began its probe
into allegations that "the government has been defrauded of some ₱10 Billion over the past 10
years by a syndicate using funds from the pork barrel of lawmakers and various government
agencies for scores of ghost projects."96 The investigation was spawned by sworn affidavits of six
(6) whistle-blowers who declared that JLN Corporation – "JLN" standing for Janet Lim Napoles
(Napoles) – had swindled billions of pesos from the public coffers for "ghost projects" using no
fewer than 20 dummy NGOs for an entire decade. While the NGOs were supposedly the ultimate
recipients of PDAF funds, the whistle-blowers declared that the money was diverted into Napoles‘
private accounts.97 Thus, after its investigation on the Napoles controversy, criminal complaints
were filed before the Office of the Ombudsman, charging five (5) lawmakers for Plunder, and three
 (3) other lawmakers for Malversation, Direct Bribery, and Violation of the Anti-Graft and Corrupt
Practices Act. Also recommended to be charged in the complaints are some of the lawmakers‘
chiefs -of-staff or representatives, the heads and other officials of three (3) implementing agencies,
and the several presidents of the NGOs set up by Napoles.98
On August 16, 2013, the Commission on Audit (CoA) released the results of a three-year audit
investigation99covering the use of legislators' PDAF from 2007 to 2009, or during the last three (3)
years of the Arroyo administration. The purpose of the audit was to determine the propriety of
releases of funds under PDAF and the Various Infrastructures including Local Projects (VILP) 100 by
the DBM, the application of these funds and the implementation of projects by the appropriate
implementing agencies and several government-owned-and-controlled corporations
(GOCCs).101 The total releases covered by the audit amounted to ₱8.374 Billion in PDAF and
₱32.664 Billion in VILP, representing 58% and 32%, respectively, of the total PDAF and VILP
releases that were found to have been made nationwide during the audit period. 102 Accordingly, the
Co A‘s findings contained in its Report No. 2012-03 (CoA Report), entitled "Priority Development
Assistance Fund (PDAF) and Various Infrastructures including Local Projects (VILP)," were made
public, the highlights of which are as follows:103
● Amounts released for projects identified by a considerable number of legislators
significantly exceeded their respective allocations.
● Amounts were released for projects outside of legislative districts of sponsoring members
of the Lower House.
● Total VILP releases for the period exceeded the total amount appropriated under the 2007
to 2009 GAAs.
● Infrastructure projects were constructed on private lots without these having been turned
over to the government.
● Significant amounts were released to implementing agencies without the latter‘s
endorsement and without considering their mandated functions, administrative and
technical capabilities to implement projects.
● Implementation of most livelihood projects was not undertaken by the implementing
agencies themselves but by NGOs endorsed by the proponent legislators to which the
Funds were transferred.
● The funds were transferred to the NGOs in spite of the absence of any appropriation law
or ordinance.
● Selection of the NGOs were not compliant with law and regulations.
● Eighty-Two (82) NGOs entrusted with implementation of seven hundred seventy two
(772) projects amount to ₱6.156 Billion were either found questionable, or submitted
questionable/spurious documents, or failed to liquidate in whole or in part their utilization of
the Funds.
● Procurement by the NGOs, as well as some implementing agencies, of goods and
services reportedly used in the projects were not compliant with law.
As for the "Presidential Pork Barrel", whistle-blowers alleged that" at least ₱900 Million from
royalties in the operation of the Malampaya gas project off Palawan province intended for agrarian
reform beneficiaries has gone into a dummy NGO." 104 According to incumbent CoA Chairperson
Maria Gracia Pulido Tan (CoA Chairperson), the CoA is, as of this writing, in the process of
preparing "one consolidated report" on the Malampaya Funds. 105
V. The Procedural Antecedents.
Spurred in large part by the findings contained in the CoA Report and the Napoles controversy,
several petitions were lodged before the Court similarly seeking that the "Pork Barrel System" be
 declared unconstitutional. To recount, the relevant procedural antecedents in these cases are as
follows:
On August 28, 2013, petitioner Samson S. Alcantara (Alcantara), President of the Social Justice Society,
filed a Petition for Prohibition of even date under Rule 65 of the Rules of Court (Alcantara Petition), seeking
that the "Pork Barrel System" be declared unconstitutional, and a writ of prohibition be issued permanently
restraining respondents Franklin M. Drilon and Feliciano S. Belmonte, Jr., in their respective capacities as
the incumbent Senate President and Speaker of the House of Representatives, from further taking any
steps to enact legislation appropriating funds for the "Pork Barrel System," in whatever form and by
whatever name it may be called, and from approving further releases pursuant thereto. 106 The Alcantara
Petition was docketed as G.R. No. 208493.
On September 3, 2013, petitioners Greco Antonious Beda B. Belgica, Jose L. Gonzalez, Reuben M.
Abante, Quintin Paredes San Diego (Belgica, et al.), and Jose M. Villegas, Jr. (Villegas) filed an Urgent
Petition For Certiorari and Prohibition With Prayer For The Immediate Issuance of Temporary Restraining
Order (TRO) and/or Writ of Preliminary Injunction dated August 27, 2013 under Rule 65 of the Rules of
Court (Belgica Petition), seeking that the annual "Pork Barrel System," presently embodied in the
provisions of the GAA of 2013 which provided for the 2013 PDAF, and the Executive‘s lump-sum,
discretionary funds, such as the Malampaya Funds and the Presidential Social Fund, 107 be declared
unconstitutional and null and void for being acts constituting grave abuse of discretion. Also, they pray that
the Court issue a TRO against respondents Paquito N. Ochoa, Jr., Florencio B. Abad (Secretary Abad) and
Rosalia V. De Leon, in their respective capacities as the incumbent Executive Secretary, Secretary of the
Department of Budget and Management (DBM), and National Treasurer, or their agents, for them to
immediately cease any expenditure under the aforesaid funds. Further, they pray that the Court order the
foregoing respondents to release to the CoA and to the public: (a) "the complete schedule/list of legislators
who have availed of their PDAF and VILP from the years 2003 to 2013, specifying the use of the funds, the
project or activity and the recipient entities or individuals, and all pertinent data thereto"; and (b) "the use of
the Executive‘s lump-sum, discretionary funds, including the proceeds from the x x x Malampaya Funds
and remittances from the PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity and the
recipient entities or individuals, and all pertinent data thereto." 108 Also, they pray for the "inclusion in
budgetary deliberations with the Congress of all presently off-budget, lump-sum, discretionary funds
including, but not limited to, proceeds from the Malampaya Funds and remittances from the
PAGCOR."109 The Belgica Petition was docketed as G.R. No. 208566.110
Lastly, on September 5, 2013, petitioner Pedrito M. Nepomuceno (Nepomuceno), filed a Petition dated
August 23, 2012 (Nepomuceno Petition), seeking that the PDAF be declared unconstitutional, and a cease
and desist order be issued restraining President Benigno Simeon S. Aquino III (President Aquino) and
Secretary Abad from releasing such funds to Members of Congress and, instead, allow their release to fund
priority projects identified and approved by the Local Development Councils in consultation with the
executive departments, such as the DPWH, the Department of Tourism, the Department of Health, the
Department of Transportation, and Communication and the National Economic Development
Authority.111 The Nepomuceno Petition was docketed as UDK-14951. 112
On September 10, 2013, the Court issued a Resolution of even date (a) consolidating all cases; (b)
requiring public respondents to comment on the consolidated petitions; (c) issuing a TRO (September 10,
2013 TRO) enjoining the DBM, National Treasurer, the Executive Secretary, or any of the persons acting
under their authority from releasing (1) the remaining PDAF allocated to Members of Congress under the
GAA of 2013, and (2) Malampaya Funds under the phrase "for such other purposes as may be hereafter
directed by the President" pursuant to Section 8 of PD 910 but not for the purpose of "financing energy
resource development and exploitation programs and projects of the government‖ under the same
provision; and (d) setting the consolidated cases for Oral Arguments on October 8, 2013.
On September 23, 2013, the Office of the Solicitor General (OSG) filed a Consolidated Comment
(Comment) of even date before the Court, seeking the lifting, or in the alternative, the partial lifting with
respect to educational and medical assistance purposes, of the Court‘s September 10, 2013 TRO, and that
the consolidated petitions be dismissed for lack of merit. 113
On September 24, 2013, the Court issued a Resolution of even date directing petitioners to reply to the
Comment.
Petitioners, with the exception of Nepomuceno, filed their respective replies to the Comment: (a) on
September 30, 2013, Villegas filed a separate Reply dated September 27, 2013 (Villegas Reply); (b) on
October 1, 2013, Belgica, et al. filed a Reply dated September 30, 2013 (Belgica Reply); and (c) on
October 2, 2013, Alcantara filed a Reply dated October 1, 2013.
On October 1, 2013, the Court issued an Advisory providing for the guidelines to be observed by the parties
for the Oral Arguments scheduled on October 8, 2013. In view of the technicality of the issues material to
the present cases, incumbent Solicitor General Francis H. Jardeleza (Solicitor General) was directed to
bring with him during the Oral Arguments representative/s from the DBM and Congress who would be able
to competently and completely answer questions related to, among others, the budgeting process and its
implementation. Further, the CoA Chairperson was appointed as amicus curiae and thereby requested to
appear before the Court during the Oral Arguments.
On October 8 and 10, 2013, the Oral Arguments were conducted. Thereafter, the Court directed the parties
to submit their respective memoranda within a period of seven (7) days, or until October 17, 2013, which
the parties subsequently did.
The Issues Before the Court
Based on the pleadings, and as refined during the Oral Arguments, the following are the main issues for the
Court‘s resolution:
I. Procedural Issues.
Whether or not (a) the issues raised in the consolidated petitions involve an actual and justiciable
controversy; (b) the issues raised in the consolidated petitions are matters of policy not subject to judicial
review; (c) petitioners have legal standing to sue; and (d) the Court‘s Decision dated August 19, 1994 in
G.R. Nos. 113105, 113174, 113766, and 113888, entitled "Philippine Constitution Association v.
Enriquez"114 (Philconsa) and Decision dated April 24, 2012 in G.R. No. 164987, entitled "Lawyers Against
Monopoly and Poverty v. Secretary of Budget and Management" 115 (LAMP) bar the re-litigatio n of the issue
of constitutionality of the "Pork Barrel System" under the principles of res judicata and stare decisis.
II. Substantive Issues on the "Congressional Pork Barrel."
Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel Laws similar thereto are
unconstitutional considering that they violate the principles of/constitutional provisions on (a) separation of
powers; (b) non-delegability of legislative power; (c) checks and balances; (d) accountability; (e) political
dynasties; and (f) local autonomy.
III. Substantive Issues on the "Presidential Pork Barrel."
Whether or not the phrases (a) "and for such other purposes as may be hereafter directed by the
President" under Section 8 of PD 910, 116 relating to the Malampaya Funds, and (b) "to finance the priority
infrastructure development projects and to finance the restoration of damaged or destroyed facilities due to
calamities, as may be directed and authorized by the Office of the President of the Philippines" under
Section 12 of PD 1869, as amended by PD 1993, relating to the Presidential Social Fund, are
unconstitutional insofar as they constitute undue delegations of legislative power.
These main issues shall be resolved in the order that they have been stated. In addition, the Court shall
also tackle certain ancillary issues as prompted by the present cases.
The Court’s Ruling
The petitions are partly granted.
I. Procedural Issues.
The prevailing rule in constitutional litigation is that no question involving the constitutionality or validity of a
law or governmental act may be heard and decided by the Court unless there is compliance with the legal
requisites for judicial inquiry,117 namely: (a) there must be an actual case or controversy calling for the
exercise of judicial power; (b) the person challenging the act must have the standing to question the validity
of the subject act or issuance; (c) the question of constitutionality must be raised at the earliest
opportunity ; and (d) the issue of constitutionality must be the very lis mota of the case. 118 Of these
requisites, case law states that the first two are the most important 119 and, therefore, shall be discussed
forthwith.
A. Existence of an Actual Case or Controversy.
By constitutional fiat, judicial power operates only when there is an actual case or controversy. 120 This is
embodied in Section 1, Article VIII of the 1987 Constitution which pertinently states that "judicial power
includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable x x x." Jurisprudence provides that an actual case or controversy is one
which "involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial
resolution as distinguished from a hypothetical or abstract difference or dispute. 121 In other words, "there
must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing law and
jurisprudence."122 Related to the requirement of an actual case or controversy is the requirement of
"ripeness," meaning that the questions raised for constitutional scrutiny are already ripe for adjudication. "A
question is ripe for adjudication when the act being challenged has had a direct adverse effect on the
individual challenging it. It is a prerequisite that something had then been accomplished or performed by
either branch before a court may come into the picture, and the petitioner must allege the existence of an
immediate or threatened injury to itself as a result of the challenged action." 123"Withal, courts will decline to
pass upon constitutional issues through advisory opinions, bereft as they are of authority to resolve
hypothetical or moot questions."124
Based on these principles, the Court finds that there exists an actual and justiciable controversy in these
cases.
The requirement of contrariety of legal rights is clearly satisfied by the antagonistic positions of the parties
on the constitutionality of the "Pork Barrel System." Also, the questions in these consolidated cases are ripe
for adjudication since the challenged funds and the provisions allowing for their utilization – such as the
2013 GAA for the PDAF, PD 910 for the Malampaya Funds and PD 1869, as amended by PD 1993, for the
Presidential Social Fund – are currently existing and operational; hence, there exists an immediate or
threatened injury to petitioners as a result of the unconstitutional use of these public funds.
As for the PDAF, the Court must dispel the notion that the issues related thereto had been rendered moot
and academic by the reforms undertaken by respondents. A case becomes moot when there is no more
actual controversy between the parties or no useful purpose can be served in passing upon the
merits.125 Differing from this description, the Court observes that respondents‘ proposed line-item budgeting
scheme would not terminate the controversy nor diminish the useful purpose for its resolution since said
reform is geared towards the 2014 budget, and not the 2013 PDAF Article which, being a distinct subject
matter, remains legally effective and existing. Neither will the President‘s declaration that he had already
"abolished the PDAF" render the issues on PDAF moot precisely because the Executive branch of
government has no constitutional authority to nullify or annul its legal existence. By constitutional design,
the annulment or nullification of a law may be done either by Congress, through the passage of a repealing
law, or by the Court, through a declaration of unconstitutionality. Instructive on this point is the following
exchange between Associate Justice Antonio T. Carpio (Justice Carpio) and the Solicitor General during
the Oral Arguments:126
Justice Carpio: The President has taken an oath to faithfully execute the law, 127 correct? Solicitor General
Jardeleza: Yes, Your Honor.
Justice Carpio: And so the President cannot refuse to implement the General Appropriations Act, correct?
Solicitor General Jardeleza: Well, that is our answer, Your Honor. In the case, for example of the PDAF, the
President has a duty to execute the laws but in the face of the outrage over PDAF, the President was
saying, "I am not sure that I will continue the release of the soft projects," and that started, Your Honor.
Now, whether or not that … (interrupted)
Justice Carpio: Yeah. I will grant the President if there are anomalies in the project, he has the power to
stop the releases in the meantime, to investigate, and that is Section 38 of Chapter 5 of Book 6 of the
Revised Administrative Code128 x x x. So at most the President can suspend, now if the President believes
that the PDAF is unconstitutional, can he just refuse to implement it?
Solicitor General Jardeleza: No, Your Honor, as we were trying to say in the specific case of the PDAF
because of the CoA Report, because of the reported irregularities and this Court can take judicial notice,
even outside, outside of the COA Report, you have the report of the whistle-blowers, the President was just
exercising precisely the duty ….
xxxx
Justice Carpio: Yes, and that is correct. You‘ve seen the CoA Report, there are anomalies, you stop and
investigate, and prosecute, he has done that. But, does that mean that PDAF has been repealed?
Solicitor General Jardeleza: No, Your Honor x x x.
xxxx
Justice Carpio: So that PDAF can be legally abolished only in two (2) cases. Congress passes a law to
repeal it, or this Court declares it unconstitutional, correct?
Solictor General Jardeleza: Yes, Your Honor.
Justice Carpio: The President has no power to legally abolish PDAF. (Emphases supplied)
Even on the assumption of mootness, jurisprudence, nevertheless, dictates that "the moot and academic‘
principle is not a magical formula that can automatically dissuade the Court in resolving a case." The Court
will decide cases, otherwise moot, if: first, there is a grave violation of the Constitution; second, the
exceptional character of the situation and the paramount public interest is involved; third, when the
constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the
public; and fourth, the case is capable of repetition yet evading review. 129
The applicability of the first exception is clear from the fundamental posture of petitioners – they essentially
allege grave violations of the Constitution with respect to, inter alia, the principles of separation of powers,
non-delegability of legislative power, checks and balances, accountability and local autonomy.
The applicability of the second exception is also apparent from the nature of the interests involved
– the constitutionality of the very system within which significant amounts of public funds have been and
continue to be utilized and expended undoubtedly presents a situation of exceptional character as well as a
matter of paramount public interest. The present petitions, in fact, have been lodged at a time when the
system‘s flaws have never before been magnified. To the Court‘s mind, the coalescence of the CoA Report,
the accounts of numerous whistle-blowers, and the government‘s own recognition that reforms are needed
"to address the reported abuses of the PDAF" 130 demonstrates a prima facie pattern of abuse which only
underscores the importance of the matter. It is also by this finding that the Court finds petitioners‘ claims as
not merely theorized, speculative or hypothetical. Of note is the weight accorded by the Court to the
findings made by the CoA which is the constitutionally-mandated audit arm of the government. In Delos
Santos v. CoA,131 a recent case wherein the Court upheld the CoA‘s disallowance of irregularly disbursed
PDAF funds, it was emphasized that:
The COA is endowed with enough latitude to determine, prevent, and disallow irregular, unnecessary,
excessive, extravagant or unconscionable expenditures of government funds. It is tasked to be vigilant and
conscientious in safeguarding the proper use of the government's, and ultimately the people's, property.
The exercise of its general audit power is among the constitutional mechanisms that gives life to the check
and balance system inherent in our form of government.
It is the general policy of the Court to sustain the decisions of administrative authorities, especially one
which is constitutionally-created, such as the CoA, not only on the basis of the doctrine of separation of
powers but also for their presumed expertise in the laws they are entrusted to enforce. Findings of
administrative agencies are accorded not only respect but also finality when the decision and order are not
tainted with unfairness or arbitrariness that would amount to grave abuse of discretion. It is only when the
CoA has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction, that this Court entertains a petition questioning its rulings. x x x. (Emphases supplied)
Thus, if only for the purpose of validating the existence of an actual and justiciable controversy in these
cases, the Court deems the findings under the CoA Report to be sufficient.
The Court also finds the third exception to be applicable largely due to the practical need for a definitive
ruling on the system‘s constitutionality. As disclosed during the Oral Arguments, the CoA Chairperson
estimates that thousands of notices of disallowances will be issued by her office in connection with the
findings made in the CoA Report. In this relation, Associate Justice Marvic Mario Victor F. Leonen (Justice
Leonen) pointed out that all of these would eventually find their way to the courts. 132 Accordingly, there is a
compelling need to formulate controlling principles relative to the issues raised herein in order to guide the
bench, the bar, and the public, not just for the expeditious resolution of the anticipated disallowance cases,
but more importantly, so that the government may be guided on how public funds should be utilized in
accordance with constitutional principles.
Finally, the application of the fourth exception is called for by the recognition that the preparation and
passage of the national budget is, by constitutional imprimatur, an affair of annual occurrence. 133 The
relevance of the issues before the Court does not cease with the passage of a "PDAF -free budget for
2014."134 The evolution of the "Pork Barrel System," by its multifarious iterations throughout the course of
history, lends a semblance of truth to petitioners‘ claim that "the same dog will just resurface wearing a
different collar."135 In Sanlakas v. Executive Secretary,136 the government had already backtracked on a
previous course of action yet the Court used the "capable of repetition but evading review" exception in
order "to prevent similar questions from re- emerging." 137 The situation similarly holds true to these cases.
Indeed, the myriad of issues underlying the manner in which certain public funds are spent, if not resolved
at this most opportune time, are capable of repetition and hence, must not evade judicial review.
B. Matters of Policy: the Political Question Doctrine.
The "limitation on the power of judicial review to actual cases and controversies‖ carries the assurance that
"the courts will not intrude into areas committed to the other branches of government." 138 Essentially, the
foregoing limitation is a restatement of the political question doctrine which, under the classic formulation of
Baker v. Carr,139 applies when there is found, among others, "a textually demonstrable constitutional
commitment of the issue to a coordinate political department," "a lack of judicially discoverable and
manageable standards for resolving it" or "the impossibility of deciding without an initial policy
determination of a kind clearly for non- judicial discretion." Cast against this light, respondents submit that
the "the political branches are in the best position not only to perform budget-related reforms but also to do
them in response to the specific demands of their constituents" and, as such, "urge the Court not to impose
a solution at this stage."140
The Court must deny respondents‘ submission.
Suffice it to state that the issues raised before the Court do not present political but legal questions which
are within its province to resolve. A political question refers to "those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or executive branch of the Government. It is
concerned with issues dependent upon the wisdom, not legality, of a particular measure." 141 The intrinsic
constitutionality of the "Pork Barrel System" is not an issue dependent upon the wisdom of the political
branches of government but rather a legal one which the Constitution itself has commanded the Court to
act upon. Scrutinizing the contours of the system along constitutional lines is a task that the political
branches of government are incapable of rendering precisely because it is an exercise of judicial power.
More importantly, the present Constitution has not only vested the Judiciary the right to exercise judicial
power but essentially makes it a duty to proceed therewith. Section 1, Article VIII of the 1987 Constitution
cannot be any clearer: "The judicial power shall be vested in one Supreme Court and in such lower courts
as may be established by law. It includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government." In Estrada v. Desierto, 142 the expanded concept of judicial power under
the 1987 Constitution and its effect on the political question doctrine was explained as follows: 143
To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine when it
expanded the power of judicial review of this court not only to settle actual controversies involving rights
which are legally demandable and enforceable but also to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of government. Heretofore, the judiciary has focused on the "thou shalt not's" of the
Constitution directed against the exercise of its jurisdiction. With the new provision, however, courts are
given a greater prerogative to determine what it can do to prevent grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of government. Clearly, the new
provision did not just grant the Court power of doing nothing. x x x (Emphases supplied)
It must also be borne in mind that ― when the judiciary mediates to allocate constitutional boundaries, it
does not assert any superiority over the other departments; does not in reality nullify or invalidate an act of
the legislature or the executive, but only asserts the solemn and sacred obligation assigned to it by the
Constitution."144 To a great extent, the Court is laudably cognizant of the reforms undertaken by its co-equal
branches of government. But it is by constitutional force that the Court must faithfully perform its duty.
Ultimately, it is the Court‘s avowed intention that a resolution of these cases would not arrest or in any
manner impede the endeavors of the two other branches but, in fact, help ensure that the pillars of change
are erected on firm constitutional grounds. After all, it is in the best interest of the people that each great
branch of government, within its own sphere, contributes its share towards achieving a holistic and genuine
solution to the problems of society. For all these reasons, the Court cannot heed respondents‘ plea for
judicial restraint.
C. Locus Standi.
"The gist of the question of standing is whether a party alleges such personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which
the court depends for illumination of difficult constitutional questions. Unless a person is injuriously affected
in any of his constitutional rights by the operation of statute or ordinance, he has no standing." 145
Petitioners have come before the Court in their respective capacities as citizen-taxpayers and accordingly,
assert that they "dutifully contribute to the coffers of the National Treasury." 146 Clearly, as taxpayers, they
possess the requisite standing to question the validity of the existing "Pork Barrel System" under which the
taxes they pay have been and continue to be utilized. It is undeniable that petitioners, as taxpayers, are
bound to suffer from the unconstitutional usage of public funds, if the Court so rules. Invariably, taxpayers
have been allowed to sue where there is a claim that public funds are illegally disbursed or that public
money is being deflected to any improper purpose, or that public funds are wasted through the
enforcement of an invalid or unconstitutional law,147 as in these cases.
Moreover, as citizens, petitioners have equally fulfilled the standing requirement given that the issues they
have raised may be classified as matters "of transcendental importance, of overreaching significance to
society, or of paramount public interest." 148 The CoA Chairperson‘s statement during the Oral Arguments
that the present controversy involves "not merely a systems failure" but a "complete breakdown of
controls"149 amplifies, in addition to the matters above-discussed, the seriousness of the issues involved
herein. Indeed, of greater import than the damage caused by the illegal expenditure of public funds is the
mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute. 150 All told,
petitioners have sufficient locus standi to file the instant cases.
D. Res Judicata and Stare Decisis.
Res judicata (which means a "matter adjudged") and stare decisis non quieta et movere (or simply, stare
decisis which means "follow past precedents and do not disturb what has been settled") are general
procedural law principles which both deal with the effects of previous but factually similar dispositions to
subsequent cases. For the cases at bar, the Court examines the applicability of these principles in relation
to its prior rulings in Philconsa and LAMP.
The focal point of res judicata is the judgment. The principle states that a judgment on the merits in a
previous case rendered by a court of competent jurisdiction would bind a subsequent case if, between the
first and second actions, there exists an identity of parties, of subject matter, and of causes of
action.151 This required identity is not, however, attendant hereto since Philconsa and LAMP, respectively
involved constitutional challenges against the 1994 CDF Article and 2004 PDAF Article, whereas the cases
at bar call for a broader constitutional scrutiny of the entire "Pork Barrel System." Also, the ruling in LAMP
is essentially a dismissal based on a procedural technicality – and, thus, hardly a judgment on the merits –
in that petitioners therein failed to present any "convincing proof x x x showing that, indeed, there were
direct releases of funds to the Members of Congress, who actually spend them according to their sole
discretion" or "pertinent evidentiary support to demonstrate the illegal misuse of PDAF in the form of
kickbacks and has become a common exercise of unscrupulous Members of Congress." As such, the
Court up held, in view of the presumption of constitutionality accorded to every law, the 2004 PDAF Article,
and saw "no need to review or reverse the standing pronouncements in the said case." Hence, for the
foregoing reasons, the res judicata principle, insofar as the Philconsa and LAMP cases are concerned,
cannot apply.
On the other hand, the focal point of stare decisis is the doctrine created. The principle, entrenched under
Article 8152 of the Civil Code, evokes the general rule that, for the sake of certainty, a conclusion reached in
one case should be doctrinally applied to those that follow if the facts are substantially the same, even
though the parties may be different. It proceeds from the first principle of justice that, absent any powerful
countervailing considerations, like cases ought to be decided alike. Thus, where the same questions
relating to the same event have been put forward by the parties similarly situated as in a previous case
litigated and decided by a competent court, the rule of stare decisis is a bar to any attempt to re-litigate the
same issue.153
Philconsa was the first case where a constitutional challenge against a Pork Barrel provision, i.e., the 1994
CDF Article, was resolved by the Court. To properly understand its context, petitioners‘ posturing was that
"the power given to the Members of Congress to propose and identify projects and activities to be funded
by the CDF is an encroachment by the legislature on executive power, since said power in an appropriation
act is in implementation of the law" and that "the proposal and identification of the projects do not involve
the making of laws or the repeal and amendment thereof, the only function given to the Congress by the
Constitution."154 In deference to the foregoing submissions, the Court reached the following main
conclusions: one, under the Constitution, the power of appropriation, or the "power of the purse," belongs
to Congress; two, the power of appropriation carries with it the power to specify the project or activity to be
funded under the appropriation law and it can be detailed and as broad as Congress wants it to be; and,
three, the proposals and identifications made by Members of Congress are merely recommendatory. At
once, it is apparent that the Philconsa resolution was a limited response to a separation of powers problem,
specifically on the propriety of conferring post-enactment identification authority to Members of Congress.
On the contrary, the present cases call for a more holistic examination of (a) the inter-relation between the
CDF and PDAF Articles with each other, formative as they are of the entire "Pork Barrel System" as well as
(b) the intra-relation of post-enactment measures contained within a particular CDF or PDAF Article,
including not only those related to the area of project identification but also to the areas of fund release and
realignment. The complexity of the issues and the broader legal analyses herein warranted may be,
therefore, considered as a powerful countervailing reason against a wholesale application of the stare
decisis principle.
In addition, the Court observes that the Philconsa ruling was actually riddled with inherent constitutional
inconsistencies which similarly countervail against a full resort to stare decisis. As may be deduced from
the main conclusions of the case, Philconsa‘s fundamental premise in allowing Members of Congress to
propose and identify of projects would be that the said identification authority is but an aspect of the power
of appropriation which has been constitutionally lodged in Congress. From this premise, the contradictions
may be easily seen. If the authority to identify projects is an aspect of appropriation and the power of
appropriation is a form of legislative power thereby lodged in Congress, then it follows that: (a) it is
Congress which should exercise such authority, and not its individual Members; (b) such authority must be
exercised within the prescribed procedure of law passage and, hence, should not be exercised after the
GAA has already been passed; and (c) such authority, as embodied in the GAA, has the force of law and,
hence, cannot be merely recommendatory. Justice Vitug‘s Concurring Opinion in the same case sums up
the Philconsa quandary in this wise: "Neither would it be objectionable for Congress, by law, to appropriate
funds for such specific projects as it may be minded; to give that authority, however, to the individual
members of Congress in whatever guise, I am afraid, would be constitutionally impermissible." As the Court
now largely benefits from hindsight and current findings on the matter, among others, the CoA Report, the
Court must partially abandon its previous ruling in Philconsa insofar as it validated the post-enactment
identification authority of Members of Congress on the guise that the same was merely recommendatory.
This postulate raises serious constitutional inconsistencies which cannot be simply excused on the ground
that such mechanism is "imaginative as it is innovative." Moreover, it must be pointed out that the recent
case of Abakada Guro Party List v. Purisima 155 (Abakada) has effectively overturned Philconsa‘s allowance
of post-enactment legislator participation in view of the separation of powers principle. These constitutional
inconsistencies and the Abakada rule will be discussed in greater detail in the ensuing section of this
Decision.
As for LAMP, suffice it to restate that the said case was dismissed on a procedural technicality and, hence,
has not set any controlling doctrine susceptible of current application to the substantive issues in these
cases. In fine, stare decisis would not apply.
II. Substantive Issues.
A. Definition of Terms.
Before the Court proceeds to resolve the substantive issues of these cases, it must first define the terms
"Pork Barrel System," "Congressional Pork Barrel," and "Presidential Pork Barrel" as they are essential to
the ensuing discourse.
Petitioners define the term "Pork Barrel System" as the "collusion between the Legislative and Executive
branches of government to accumulate lump-sum public funds in their offices with unchecked discretionary
powers to determine its distribution as political largesse." 156 They assert that the following elements make
up the Pork Barrel System: (a) lump-sum funds are allocated through the appropriations process to an
individual officer; (b) the officer is given sole and broad discretion in determining how the funds will be used
or expended; (c) the guidelines on how to spend or use the funds in the appropriation are either vague,
overbroad or inexistent; and (d) projects funded are intended to benefit a definite constituency in a
particular part of the country and to help the political careers of the disbursing official by yielding rich
patronage benefits.157 They further state that the Pork Barrel System is comprised of two (2) kinds of
discretionary public funds: first, the Congressional (or Legislative) Pork Barrel, currently known as the
PDAF;158 and, second, the Presidential (or Executive) Pork Barrel, specifically, the Malampaya Funds
under PD 910 and the Presidential Social Fund under PD 1869, as amended by PD 1993. 159
Considering petitioners‘ submission and in reference to its local concept and legal history, the Court defines
the Pork Barrel System as the collective body of rules and practices that govern the manner by which lump-
sum, discretionary funds, primarily intended for local projects, are utilized through the respective
participations of the Legislative and Executive branches of government, including its members. The Pork
Barrel System involves two (2) kinds of lump-sum discretionary funds:
First, there is the Congressional Pork Barrel which is herein defined as a kind of lump-sum, discretionary
fund wherein legislators, either individually or collectively organized into committees, are able to effectively
control certain aspects of the fund’s utilization through various post-enactment measures and/or practices.
In particular, petitioners consider the PDAF, as it appears under the 2013 GAA, as Congressional Pork
Barrel since it is, inter alia, a post-enactment measure that allows individual legislators to wield a collective
power;160 and
Second, there is the Presidential Pork Barrel which is herein defined as a kind of lump-sum, discretionary
fund which allows the President to determine the manner of its utilization. For reasons earlier stated, 161 the
Court shall delimit the use of such term to refer only to the Malampaya Funds and the Presidential Social
Fund.
With these definitions in mind, the Court shall now proceed to discuss the substantive issues of these
cases.
B. Substantive Issues on the Congressional Pork Barrel.
1. Separation of Powers.
a. Statement of Principle.
The principle of separation of powers refers to the constitutional demarcation of the three fundamental
powers of government. In the celebrated words of Justice Laurel in Angara v. Electoral Commission, 162 it
means that the "Constitution has blocked out with deft strokes and in bold lines, allotment of power to the
executive, the legislative and the judicial departments of the government." 163 To the legislative branch of
government, through Congress,164 belongs the power to make laws; to the executive branch of
government, through the President,165 belongs the power to enforce laws; and to the judicial branch of
government, through the Court,166 belongs the power to interpret laws. Because the three great powers
have been, by constitutional design, ordained in this respect, "each department of the government has
exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere." 167 Thus, "the
legislature has no authority to execute or construe the law, the executive has no authority to make or
construe the law, and the judiciary has no power to make or execute the law." 168 The principle of separation
of powers and its concepts of autonomy and independence stem from the notion that the powers of
government must be divided to avoid concentration of these powers in any one branch; the division, it is
hoped, would avoid any single branch from lording its power over the other branches or the citizenry. 169 To
achieve this purpose, the divided power must be wielded by co-equal branches of government that are
equally capable of independent action in exercising their respective mandates. Lack of independence
would result in the inability of one branch of government to check the arbitrary or self-interest assertions of
another or others.170
Broadly speaking, there is a violation of the separation of powers principle when one branch of government
unduly encroaches on the domain of another. US Supreme Court decisions instruct that the principle of
separation of powers may be violated in two (2) ways: firstly, "one branch may interfere impermissibly with
the other’s performance of its constitutionally assigned function"; 171 and "alternatively, the doctrine may be
violated when one branch assumes a function that more properly is entrusted to another." 172 In other words,
there is a violation of the principle when there is impermissible (a) interference with and/or (b) assumption
of another department‘s functions.
The enforcement of the national budget, as primarily contained in the GAA, is indisputably a function both
constitutionally assigned and properly entrusted to the Executive branch of government. In Guingona, Jr. v.
Hon. Carague173 (Guingona, Jr.), the Court explained that the phase of budget execution "covers the
various operational aspects of budgeting" and accordingly includes "the evaluation of work and financial
plans for individual activities," the "regulation and release of funds" as well as all "other related activities"
that comprise the budget execution cycle. 174 This is rooted in the principle that the allocation of power in the
three principal branches of government is a grant of all powers inherent in them. 175 Thus, unless the
Constitution provides otherwise, the Executive department should exclusively exercise all roles and
prerogatives which go into the implementation of the national budget as provided under the GAA as well as
any other appropriation law.
In view of the foregoing, the Legislative branch of government, much more any of its members, should not
cross over the field of implementing the national budget since, as earlier stated, the same is properly the
domain of the Executive. Again, in Guingona, Jr., the Court stated that "Congress enters the picture when it
deliberates or acts on the budget proposals of the President. Thereafter, Congress, "in the exercise of its
own judgment and wisdom, formulates an appropriation act precisely following the process established by
the Constitution, which specifies that no money may be paid from the Treasury except in accordance with
an appropriation made by law." Upon approval and passage of the GAA, Congress‘ law -making role
necessarily comes to an end and from there the Executive‘s role of implementing the national budget
begins. So as not to blur the constitutional boundaries between them, Congress must "not concern it self
with details for implementation by the Executive."176
The foregoing cardinal postulates were definitively enunciated in Abakada where the Court held that "from
the moment the law becomes effective, any provision of law that empowers Congress or any of its
members to play any role in the implementation or enforcement of the law violates the principle of
separation of powers and is thus unconstitutional." 177 It must be clarified, however, that since the restriction
only pertains to "any role in the implementation or enforcement of the law," Congress may still exercise its
oversight function which is a mechanism of checks and balances that the Constitution itself allows. But it
must be made clear that Congress‘ role must be confined to mere oversight. Any post-enactment-measure
allowing legislator participation beyond oversight is bereft of any constitutional basis and hence,
tantamount to impermissible interference and/or assumption of executive functions. As the Court ruled in
Abakada:178
Any post-enactment congressional measure x x x should be limited to scrutiny and investigation. In 1âwphi1

particular, congressional oversight must be confined to the following:

(1) scrutiny based primarily on Congress‘ power of appropriation and the budget hearings
conducted in connection with it, its power to ask heads of departments to appear before and be
 heard by either of its Houses on any matter pertaining to their departments and its power of
confirmation; and
(2) investigation and monitoring of the implementation of laws pursuant to the power of Congress to
conduct inquiries in aid of legislation.
Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution.
(Emphases supplied)
b. Application.
In these cases, petitioners submit that the Congressional Pork Barrel – among others, the 2013 PDAF
Article – "wrecks the assignment of responsibilities between the political branches" as it is designed to
allow individual legislators to interfere "way past the time it should have ceased" or, particularly, "after the
GAA is passed."179 They state that the findings and recommendations in the CoA Report provide "an
illustration of how absolute and definitive the power of legislators wield over project implementation in
complete violation of the constitutional principle of separation of powers." 180 Further, they point out that the
Court in the Philconsa case only allowed the CDF to exist on the condition that individual legislators limited
their role to recommending projects and not if they actually dictate their implementation. 181
For their part, respondents counter that the separations of powers principle has not been violated since the
President maintains "ultimate authority to control the execution of the GAA‖ and that he "retains the final
discretion to reject" the legislators‘ proposals. 182 They maintain that the Court, in Philconsa, "upheld the
constitutionality of the power of members of Congress to propose and identify projects so long as such
proposal and identification are recommendatory." 183 As such, they claim that "everything in the Special
Provisions [of the 2013 PDAF Article follows the Philconsa framework, and hence, remains
constitutional."184
The Court rules in favor of petitioners.
As may be observed from its legal history, the defining feature of all forms of Congressional Pork Barrel
would be the authority of legislators to participate in the post-enactment phases of project implementation.
At its core, legislators – may it be through project lists, 185 prior consultations186 or program menus187 – have
been consistently accorded post-enactment authority to identify the projects they desire to be funded
through various Congressional Pork Barrel allocations. Under the 2013 PDAF Article, the statutory authority
of legislators to identify projects post-GAA may be construed from the import of Special Provisions 1 to 3 as
well as the second paragraph of Special Provision 4. To elucidate, Special Provision 1 embodies the
program menu feature which, as evinced from past PDAF Articles, allows individual legislators to identify
PDAF projects for as long as the identified project falls under a general program listed in the said menu.
Relatedly, Special Provision 2 provides that the implementing agencies shall, within 90 days from the GAA
is passed, submit to Congress a more detailed priority list, standard or design prepared and submitted by
implementing agencies from which the legislator may make his choice. The same provision further
authorizes legislators to identify PDAF projects outside his district for as long as the representative of the
district concerned concurs in writing. Meanwhile, Special Provision 3 clarifies that PDAF projects refer to
"projects to be identified by legislators"188and thereunder provides the allocation limit for the total amount of
projects identified by each legislator. Finally, paragraph 2 of Special Provision 4 requires that any
modification and revision of the project identification "shall be submitted to the House Committee on
Appropriations and the Senate Committee on Finance for favorable endorsement to the DBM or the
implementing agency, as the case may be." From the foregoing special provisions, it cannot be seriously
doubted that legislators have been accorded post-enactment authority to identify PDAF projects.
Aside from the area of project identification, legislators have also been accorded post-enactment authority
in the areas of fund release and realignment. Under the 2013 PDAF Article, the statutory authority of
legislators to participate in the area of fund release through congressional committees is contained in
Special Provision 5 which explicitly states that "all request for release of funds shall be supported by the
documents prescribed under Special Provision No. 1 and favorably endorsed by House Committee on
Appropriations and the Senate Committee on Finance, as the case may be"; while their statutory authority
to participate in the area of fund realignment is contained in: first , paragraph 2, Special Provision
4189 which explicitly state s, among others, that "any realignment of funds shall be submitted to the House
Committee on Appropriations and the Senate Committee on Finance for favorable endorsement to the
DBM or the implementing agency, as the case may be‖ ; and, second , paragraph 1, also of Special
Provision 4 which authorizes the "Secretaries of Agriculture, Education, Energy, Interior and Local
Government, Labor and Employment, Public Works and Highways, Social Welfare and Development and
Trade and Industry190 x x x to approve realignment from one project/scope to another within the allotment
received from this Fund, subject to among others (iii) the request is with the concurrence of the legislator
concerned."
Clearly, these post-enactment measures which govern the areas of project identification, fund release and
fund realignment are not related to functions of congressional oversight and, hence, allow legislators to
intervene and/or assume duties that properly belong to the sphere of budget execution. Indeed, by virtue of
the foregoing, legislators have been, in one form or another, authorized to participate in – as Guingona, Jr.
puts it – "the various operational aspects of budgeting," including "the evaluation of work and financial
plans for individual activities" and the "regulation and release of funds" in violation of the separation of
powers principle. The fundamental rule, as categorically articulated in Abakada, cannot be overstated –
from the moment the law becomes effective, any provision of law that empowers Congress or any of its
members to play any role in the implementation or enforcement of the law violates the principle of
separation of powers and is thus unconstitutional. 191 That the said authority is treated as merely
recommendatory in nature does not alter its unconstitutional tenor since the prohibition, to repeat, covers
any role in the implementation or enforcement of the law. Towards this end, the Court must therefore
abandon its ruling in Philconsa which sanctioned the conduct of legislator identification on the guise that
the same is merely recommendatory and, as such, respondents‘ reliance on the same falters altogether.
Besides, it must be pointed out that respondents have nonetheless failed to substantiate their position that
the identification authority of legislators is only of recommendatory import. Quite the contrary, respondents
– through the statements of the Solicitor General during the Oral Arguments – have admitted that the
identification of the legislator constitutes a mandatory requirement before his PDAF can be tapped as a
funding source, thereby highlighting the indispensability of the said act to the entire budget execution
process:192
Justice Bernabe: Now, without the individual legislator’s identification of the project, can the PDAF of the
legislator be utilized?
Solicitor General Jardeleza: No, Your Honor.
Justice Bernabe: It cannot?
Solicitor General Jardeleza: It cannot… (interrupted)
Justice Bernabe: So meaning you should have the identification of the project by the individual legislator?
Solicitor General Jardeleza: Yes, Your Honor.
xxxx
Justice Bernabe: In short, the act of identification is mandatory?
Solictor General Jardeleza: Yes, Your Honor. In the sense that if it is not done and then there is no
identification.
xxxx
Justice Bernabe: Now, would you know of specific instances when a project was implemented without the
identification by the individual legislator?
Solicitor General Jardeleza: I do not know, Your Honor; I do not think so but I have no specific examples. I
would doubt very much, Your Honor, because to implement, there is a need for a SARO and the NCA. And
the SARO and the NCA are triggered by an identification from the legislator.
xxxx
Solictor General Jardeleza: What we mean by mandatory, Your Honor, is we were replying to a question,
"How can a legislator make sure that he is able to get PDAF Funds?" It is mandatory in the sense that he
must identify, in that sense, Your Honor. Otherwise, if he does not identify, he cannot avail of the PDAF
Funds and his district would not be able to have PDAF Funds, only in that sense, Your Honor. (Emphases
supplied)
Thus, for all the foregoing reasons, the Court hereby declares the 2013 PDAF Article as well as all other
provisions of law which similarly allow legislators to wield any form of post-enactment authority in the
implementation or enforcement of the budget, unrelated to congressional oversight, as violative of the
separation of powers principle and thus unconstitutional. Corollary thereto, informal practices, through
which legislators have effectively intruded into the proper phases of budget execution, must be deemed as
acts of grave abuse of discretion amounting to lack or excess of jurisdiction and, hence, accorded the same
unconstitutional treatment. That such informal practices do exist and have, in fact, been constantly
observed throughout the years has not been substantially disputed here. As pointed out by Chief Justice
Maria Lourdes P.A. Sereno (Chief Justice Sereno) during the Oral Arguments of these cases: 193
Chief Justice Sereno:
Now, from the responses of the representative of both, the DBM and two (2) Houses of Congress, if we
enforces the initial thought that I have, after I had seen the extent of this research made by my staff, that
neither the Executive nor Congress frontally faced the question of constitutional compatibility of how they
were engineering the budget process. In fact, the words you have been using, as the three lawyers of the
DBM, and both Houses of Congress has also been using is surprise; surprised that all of these things are
now surfacing. In fact, I thought that what the 2013 PDAF provisions did was to codify in one section all the
past practice that had been done since 1991. In a certain sense, we should be thankful that they are all
now in the PDAF Special Provisions. x x x (Emphasis and underscoring supplied)
Ultimately, legislators cannot exercise powers which they do not have, whether through formal measures
written into the law or informal practices institutionalized in government agencies, else the Executive
department be deprived of what the Constitution has vested as its own.
2. Non-delegability of Legislative Power.
a. Statement of Principle.
As an adjunct to the separation of powers principle, 194 legislative power shall be exclusively exercised by
the body to which the Constitution has conferred the same. In particular, Section 1, Article VI of the 1987
Constitution states that such power shall be vested in the Congress of the Philippines which shall consist of
a Senate and a House of Representatives, except to the extent reserved to the people by the provision on
initiative and referendum.195 Based on this provision, it is clear that only Congress, acting as a bicameral
body, and the people, through the process of initiative and referendum, may constitutionally wield
legislative power and no other. This premise embodies the principle of non-delegability of legislative power,
and the only recognized exceptions thereto would be: (a) delegated legislative power to local governments
which, by immemorial practice, are allowed to legislate on purely local matters; 196 and (b) constitutionally-
grafted exceptions such as the authority of the President to, by law, exercise powers necessary and proper
to carry out a declared national policy in times of war or other national emergency, 197 or fix within specified
limits, and subject to such limitations and restrictions as Congress may impose, tariff rates, import and
export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the
national development program of the Government.198
Notably, the principle of non-delegability should not be confused as a restriction to delegate rule-making
authority to implementing agencies for the limited purpose of either filling up the details of the law for its
enforcement (supplementary rule-making) or ascertaining facts to bring the law into actual operation
(contingent rule-making).199 The conceptual treatment and limitations of delegated rule-making were
explained in the case of People v. Maceren200 as follows:
The grant of the rule-making power to administrative agencies is a relaxation of the principle of separation
of powers and is an exception to the nondelegation of legislative powers. Administrative regulations or
"subordinate legislation" calculated to promote the public interest are necessary because of "the growing
complexity of modern life, the multiplication of the subjects of governmental regulations, and the increased
difficulty of administering the law."
xxxx
Nevertheless, it must be emphasized that the rule-making power must be confined to details for regulating
the mode or proceeding to carry into effect the law as it has been enacted. The power cannot be extended
to amending or expanding the statutory requirements or to embrace matters not covered by the statute.
Rules that subvert the statute cannot be sanctioned. (Emphases supplied)
b. Application.
In the cases at bar, the Court observes that the 2013 PDAF Article, insofar as it confers post-enactment
identification authority to individual legislators, violates the principle of non-delegability since said
legislators are effectively allowed to individually exercise the power of appropriation, which – as settled in
Philconsa – is lodged in Congress. 201 That the power to appropriate must be exercised only through
legislation is clear from Section 29(1), Article VI of the 1987 Constitution which states that: "No money shall
be paid out of the Treasury except in pursuance of an appropriation made by law." To understand what
constitutes an act of appropriation, the Court, in Bengzon v. Secretary of Justice and Insular
Auditor202(Bengzon), held that the power of appropriation involves (a) the setting apart by law of a certain
sum from the public revenue for (b) a specified purpose. Essentially, under the 2013 PDAF Article,
individual legislators are given a personal lump-sum fund from which they are able to dictate (a) how much
from such fund would go to (b) a specific project or beneficiary that they themselves also determine. As
these two (2) acts comprise the exercise of the power of appropriation as described in Bengzon, and given
that the 2013 PDAF Article authorizes individual legislators to perform the same, undoubtedly, said
legislators have been conferred the power to legislate which the Constitution does not, however, allow.
Thus, keeping with the principle of non-delegability of legislative power, the Court hereby declares the 2013
PDAF Article, as well as all other forms of Congressional Pork Barrel which contain the similar legislative
identification feature as herein discussed, as unconstitutional.
3. Checks and Balances.
a. Statement of Principle; Item-Veto Power.
The fact that the three great powers of government are intended to be kept separate and distinct does not
mean that they are absolutely unrestrained and independent of each other. The Constitution has also
provided for an elaborate system of checks and balances to secure coordination in the workings of the
various departments of the government.203
A prime example of a constitutional check and balance would be the President’s power to veto an item
written into an appropriation, revenue or tariff bill submitted to him by Congress for approval through a
process known as "bill presentment." The President‘s item-veto power is found in Section 27(2), Article VI
of the 1987 Constitution which reads as follows:
Sec. 27. x x x.
xxxx
(2) The President shall have the power to veto any particular item or items in an appropriation, revenue, or
tariff bill, but the veto shall not affect the item or items to which he does not object.
The presentment of appropriation, revenue or tariff bills to the President, wherein he may exercise his
power of item-veto, forms part of the "single, finely wrought and exhaustively considered, procedures" for
law-passage as specified under the Constitution. 204 As stated in Abakada, the final step in the law-making
process is the "submission of the bill to the President for approval. Once approved, it takes effect as law
after the required publication."205
Elaborating on the President‘s item-veto power and its relevance as a check on the legislature, the Court,
in Bengzon, explained that:206
The former Organic Act and the present Constitution of the Philippines make the Chief Executive an
integral part of the law-making power. His disapproval of a bill, commonly known as a veto, is essentially a
legislative act. The questions presented to the mind of the Chief Executive are precisely the same as those
the legislature must determine in passing a bill, except that his will be a broader point of view.
The Constitution is a limitation upon the power of the legislative department of the government, but in this
respect it is a grant of power to the executive department. The Legislature has the affirmative power to
enact laws; the Chief Executive has the negative power by the constitutional exercise of which he may
defeat the will of the Legislature. It follows that the Chief Executive must find his authority in the
Constitution. But in exercising that authority he may not be confined to rules of strict construction or
hampered by the unwise interference of the judiciary. The courts will indulge every intendment in favor of
the constitutionality of a veto in the same manner as they will presume the constitutionality of an act as
originally passed by the Legislature. (Emphases supplied)
The justification for the President‘s item-veto power rests on a variety of policy goals such as to prevent
log-rolling legislation,207 impose fiscal restrictions on the legislature, as well as to fortify the executive
branch‘s role in the budgetary process.208 In Immigration and Naturalization Service v. Chadha, the US
Supreme Court characterized the President‘s item-power as "a salutary check upon the legislative body,
calculated to guard the community against the effects of factions, precipitancy, or of any impulse unfriendly
to the public good, which may happen to influence a majority of that body"; phrased differently, it is meant
to "increase the chances in favor of the community against the passing of bad laws, through haste,
inadvertence, or design."209
For the President to exercise his item-veto power, it necessarily follows that there exists a proper "item"
which may be the object of the veto. An item, as defined in the field of appropriations, pertains to "the
particulars, the details, the distinct and severable parts of the appropriation or of the bill." In the case of
Bengzon v. Secretary of Justice of the Philippine Islands, 210 the US Supreme Court characterized an item
of appropriation as follows:
An item of an appropriation bill obviously means an item which, in itself, is a specific appropriation of
money, not some general provision of law which happens to be put into an appropriation bill. (Emphases
supplied)
On this premise, it may be concluded that an appropriation bill, to ensure that the President may be able to
exercise his power of item veto, must contain "specific appropriations of money" and not only "general
provisions" which provide for parameters of appropriation.
Further, it is significant to point out that an item of appropriation must be an item characterized by singular
correspondence – meaning an allocation of a specified singular amount for a specified singular purpose,
otherwise known as a "line-item." 211 This treatment not only allows the item to be consistent with its
definition as a "specific appropriation of money" but also ensures that the President may discernibly veto
the same. Based on the foregoing formulation, the existing Calamity Fund, Contingent Fund and the
Intelligence Fund, being appropriations which state a specified amount for a specific purpose, would then
be considered as "line- item" appropriations which are rightfully subject to item veto. Likewise, it must be
observed that an appropriation may be validly apportioned into component percentages or values;
however, it is crucial that each percentage or value must be allocated for its own corresponding purpose for
such component to be considered as a proper line-item. Moreover, as Justice Carpio correctly pointed out,
a valid appropriation may even have several related purposes that are by accounting and budgeting
practice considered as one purpose, e.g., MOOE (maintenance and other operating expenses), in which
case the related purposes shall be deemed sufficiently specific for the exercise of the President‘s item veto
power. Finally, special purpose funds and discretionary funds would equally square with the constitutional
mechanism of item-veto for as long as they follow the rule on singular correspondence as herein
discussed. Anent special purpose funds, it must be added that Section 25(4), Article VI of the 1987
Constitution requires that the "special appropriations bill shall specify the purpose for which it is intended,
and shall be supported by funds actually available as certified by the National Treasurer, or t o be raised by
a corresponding revenue proposal therein." Meanwhile, with respect to discretionary funds, Section 2 5(6),
Article VI of the 1987 Constitution requires that said funds "shall be disbursed only for public purposes to
be supported by appropriate vouchers and subject to such guidelines as may be prescribed by law."
In contrast, what beckons constitutional infirmity are appropriations which merely provide for a singular
lump-sum amount to be tapped as a source of funding for multiple purposes. Since such appropriation type
necessitates the further determination of both the actual amount to be expended and the actual purpose of
the appropriation which must still be chosen from the multiple purposes stated in the law, it cannot be said
that the appropriation law already indicates a "specific appropriation of money‖ and hence, without a proper
line-item which the President may veto. As a practical result, the President would then be faced with the
predicament of either vetoing the entire appropriation if he finds some of its purposes wasteful or
undesirable, or approving the entire appropriation so as not to hinder some of its legitimate purposes.
Finally, it may not be amiss to state that such arrangement also raises non-delegability issues considering
that the implementing authority would still have to determine, again, both the actual amount to be expended
and the actual purpose of the appropriation. Since the foregoing determinations constitute the integral
aspects of the power to appropriate, the implementing authority would, in effect, be exercising legislative
prerogatives in violation of the principle of non-delegability.
b. Application.
In these cases, petitioners claim that "in the current x x x system where the PDAF is a lump-sum
appropriation, the legislator‘s identification of the projects after the passage of the GAA denies the
President the chance to veto that item later on."212 Accordingly, they submit that the "item veto power of the
President mandates that appropriations bills adopt line-item budgeting" and that "Congress cannot choose
a mode of budgeting which effectively renders the constitutionally-given power of the President useless." 213
On the other hand, respondents maintain that the text of the Constitution envisions a process which is
intended to meet the demands of a modernizing economy and, as such, lump-sum appropriations are
essential to financially address situations which are barely foreseen when a GAA is enacted. They argue
that the decision of the Congress to create some lump-sum appropriations is constitutionally allowed and
textually-grounded.214
The Court agrees with petitioners.
Under the 2013 PDAF Article, the amount of ₱24.79 Billion only appears as a collective allocation limit
since the said amount would be further divided among individual legislators who would then receive
personal lump-sum allocations and could, after the GAA is passed, effectively appropriate PDAF funds
based on their own discretion. As these intermediate appropriations are made by legislators only after the
GAA is passed and hence, outside of the law, it necessarily means that the actual items of PDAF
appropriation would not have been written into the General Appropriations Bill and thus effectuated without
veto consideration. This kind of lump-sum/post-enactment legislative identification budgeting system
fosters the creation of a budget within a budget" which subverts the prescribed procedure of presentment
and consequently impairs the President‘s power of item veto. As petitioners aptly point out, the above-
described system forces the President to decide between (a) accepting the entire ₱24.79 Billion PDAF
allocation without knowing the specific projects of the legislators, which may or may not be consistent with
his national agenda and (b) rejecting the whole PDAF to the detriment of all other legislators with legitimate
projects.215
Moreover, even without its post-enactment legislative identification feature, the 2013 PDAF Article would
remain constitutionally flawed since it would then operate as a prohibited form of lump-sum appropriation
above-characterized. In particular, the lump-sum amount of ₱24.79 Billion would be treated as a mere
funding source allotted for multiple purposes of spending, i.e., scholarships, medical missions, assistance
to indigents, preservation of historical materials, construction of roads, flood control, etc. This setup
connotes that the appropriation law leaves the actual amounts and purposes of the appropriation for further
determination and, therefore, does not readily indicate a discernible item which may be subject to the
President‘s power of item veto.
In fact, on the accountability side, the same lump-sum budgeting scheme has, as the CoA Chairperson
relays, "limited state auditors from obtaining relevant data and information that would aid in more
stringently auditing the utilization of said Funds." 216 Accordingly, she recommends the adoption of a "line by
line budget or amount per proposed program, activity or project, and per implementing agency." 217
Hence, in view of the reasons above-stated, the Court finds the 2013 PDAF Article, as well as all
Congressional Pork Barrel Laws of similar operation, to be unconstitutional. That such budgeting system
provides for a greater degree of flexibility to account for future contingencies cannot be an excuse to defeat
what the Constitution requires. Clearly, the first and essential truth of the matter is that unconstitutional
means do not justify even commendable ends.218
c. Accountability.
Petitioners further relate that the system under which various forms of Congressional Pork Barrel operate
defies public accountability as it renders Congress incapable of checking itself or its Members. In particular,
they point out that the Congressional Pork Barrel "gives each legislator a direct, financial interest in the
smooth, speedy passing of the yearly budget" which turns them "from fiscalizers" into "financially-interested
partners."219 They also claim that the system has an effect on re- election as "the PDAF excels in self-
perpetuation of elective officials." Finally, they add that the "PDAF impairs the power of impeachment" as
such "funds are indeed quite useful, ‘to well, accelerate the decisions of senators.‘" 220
The Court agrees in part.
The aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that "public office is
a public trust," is an overarching reminder that every instrumentality of government should exercise their
official functions only in accordance with the principles of the Constitution which embodies the parameters
of the people‘s trust. The notion of a public trust connotes accountability, 221 hence, the various mechanisms
in the Constitution which are designed to exact accountability from public officers.
Among others, an accountability mechanism with which the proper expenditure of public funds may be
checked is the power of congressional oversight. As mentioned in Abakada, 222 congressional oversight may
be performed either through: (a) scrutiny based primarily on Congress‘ power of appropriation and the
budget hearings conducted in connection with it, its power to ask heads of departments to appear before
and be heard by either of its Houses on any matter pertaining to their departments and its power of
confirmation;223 or (b) investigation and monitoring of the implementation of laws pursuant to the power of
Congress to conduct inquiries in aid of legislation.224
The Court agrees with petitioners that certain features embedded in some forms of Congressional Pork
Barrel, among others the 2013 PDAF Article, has an effect on congressional oversight. The fact that
individual legislators are given post-enactment roles in the implementation of the budget makes it difficult
for them to become disinterested "observers" when scrutinizing, investigating or monitoring the
implementation of the appropriation law. To a certain extent, the conduct of oversight would be tainted as
said legislators, who are vested with post-enactment authority, would, in effect, be checking on activities in
which they themselves participate. Also, it must be pointed out that this very same concept of post-
enactment authorization runs afoul of Section 14, Article VI of the 1987 Constitution which provides that:
Sec. 14. No Senator or Member of the House of Representatives may personally appear as counsel before
any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies.
Neither shall he, directly or indirectly, be interested financially in any contract with, or in any franchise or
special privilege granted by the Government, or any subdivision, agency, or instrumentality thereof,
including any government-owned or controlled corporation, or its subsidiary, during his term of office. He
shall not intervene in any matter before any office of the Government for his pecuniary benefit or where he
may be called upon to act on account of his office. (Emphasis supplied)
Clearly, allowing legislators to intervene in the various phases of project implementation – a matter before
another office of government – renders them susceptible to taking undue advantage of their own office.
The Court, however, cannot completely agree that the same post-enactment authority and/or the individual
legislator‘s control of his PDAF per se would allow him to perpetuate himself in office. Indeed, while the
Congressional Pork Barrel and a legislator‘s use thereof may be linked to this area of interest, the use of
his PDAF for re-election purposes is a matter which must be analyzed based on particular facts and on a
case-to-case basis.
Finally, while the Court accounts for the possibility that the close operational proximity between legislators
and the Executive department, through the former‘s post-enactment participation, may affect the process of
impeachment, this matter largely borders on the domain of politics and does not strictly concern the Pork
Barrel System‘s intrinsic constitutionality. As such, it is an improper subject of judicial assessment.
In sum, insofar as its post-enactment features dilute congressional oversight and violate Section 14, Article
VI of the 1987 Constitution, thus impairing public accountability, the 2013 PDAF Article and other forms of
Congressional Pork Barrel of similar nature are deemed as unconstitutional.
4. Political Dynasties.
One of the petitioners submits that the Pork Barrel System enables politicians who are members of political
dynasties to accumulate funds to perpetuate themselves in power, in contravention of Section 26, Article II
of the 1987 Constitution225which states that:
Sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit political
dynasties as may be defined by law. (Emphasis and underscoring supplied)
At the outset, suffice it to state that the foregoing provision is considered as not self-executing due to the
qualifying phrase "as may be defined by law." In this respect, said provision does not, by and of itself,
provide a judicially enforceable constitutional right but merely specifies guideline for legislative or executive
action.226 Therefore, since there appears to be no standing law which crystallizes the policy on political
dynasties for enforcement, the Court must defer from ruling on this issue.
In any event, the Court finds the above-stated argument on this score to be largely speculative since it has
not been properly demonstrated how the Pork Barrel System would be able to propagate political
dynasties.
5. Local Autonomy.
The State‘s policy on local autonomy is principally stated in Section 25, Article II and Sections 2 and 3,
Article X of the 1987 Constitution which read as follows:
ARTICLE II
Sec. 25. The State shall ensure the autonomy of local governments.
ARTICLE X
Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.
Sec. 3. The Congress shall enact a local government code which shall provide for a more responsive and
accountable local government structure instituted through a system of decentralization with effective
mechanisms of recall, initiative, and referendum, allocate among the different local government units their
powers, responsibilities, and resources, and provide for the qualifications, election, appointment and
removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to
the organization and operation of the local units.
Pursuant thereto, Congress enacted RA 7160, 227 otherwise known as the "Local Government Code of
1991" (LGC), wherein the policy on local autonomy had been more specifically explicated as follows:
Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy of the State that the territorial and
political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to
attain their fullest development as self-reliant communities and make them more effective partners in the
attainment of national goals. Toward this end, the State shall provide for a more responsive and
accountable local government structure instituted through a system of decentralization whereby local
government units shall be given more powers, authority, responsibilities, and resources. The process of
decentralization shall proceed from the National Government to the local government units.
xxxx
(c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic
consultations with appropriate local government units, nongovernmental and people‘s organizations, and
other concerned sectors of the community before any project or program is implemented in their respective
jurisdictions. (Emphases and underscoring supplied)
The above-quoted provisions of the Constitution and the LGC reveal the policy of the State to empower
local government units (LGUs) to develop and ultimately, become self-sustaining and effective contributors
to the national economy. As explained by the Court in Philippine Gamefowl Commission v. Intermediate
Appellate Court:228
This is as good an occasion as any to stress the commitment of the Constitution to the policy of local
autonomy which is intended to provide the needed impetus and encouragement to the development of our
local political subdivisions as "self - reliant communities." In the words of Jefferson, "Municipal corporations
are the small republics from which the great one derives its strength." The vitalization of local governments
will enable their inhabitants to fully exploit their resources and more important, imbue them with a
deepened sense of involvement in public affairs as members of the body politic. This objective could be
blunted by undue interference by the national government in purely local affairs which are best resolved by
the officials and inhabitants of such political units. The decision we reach today conforms not only to the
letter of the pertinent laws but also to the spirit of the Constitution. 229 (Emphases and underscoring
supplied)
In the cases at bar, petitioners contend that the Congressional Pork Barrel goes against the constitutional
principles on local autonomy since it allows district representatives, who are national officers, to substitute
their judgments in utilizing public funds for local development.230 The Court agrees with petitioners.
Philconsa described the 1994 CDF as an attempt "to make equal the unequal" and that "it is also a
recognition that individual members of Congress, far more than the President and their congressional
colleagues, are likely to be knowledgeable about the needs of their respective constituents and the priority
to be given each project." 231 Drawing strength from this pronouncement, previous legislators justified its
existence by stating that "the relatively small projects implemented under the Congressional Pork Barrel
complement and link the national development goals to the countryside and grassroots as well as to
depressed areas which are overlooked by central agencies which are preoccupied with mega-
projects.232 Similarly, in his August 23, 2013 speech on the "abolition" of PDAF and budgetary reforms,
President Aquino mentioned that the Congressional Pork Barrel was originally established for a worthy
goal, which is to enable the representatives to identify projects for communities that the LGU concerned
cannot afford.233
Notwithstanding these declarations, the Court, however, finds an inherent defect in the system which
actually belies the avowed intention of "making equal the unequal." In particular, the Court observes that
the gauge of PDAF and CDF allocation/division is based solely on the fact of office, without taking into
account the specific interests and peculiarities of the district the legislator represents. In this regard, the
allocation/division limits are clearly not based on genuine parameters of equality, wherein economic or
geographic indicators have been taken into consideration. As a result, a district representative of a highly-
urbanized metropolis gets the same amount of funding as a district representative of a far-flung rural
province which would be relatively "underdeveloped" compared to the former. To add, what rouses graver
scrutiny is that even Senators and Party-List Representatives – and in some years, even the Vice-
President – who do not represent any locality, receive funding from the Congressional Pork Barrel as well.
These certainly are anathema to the Congressional Pork Barrel‘s original intent which is "to make equal the
unequal." Ultimately, the PDAF and CDF had become personal funds under the effective control of each
legislator and given unto them on the sole account of their office.
The Court also observes that this concept of legislator control underlying the CDF and PDAF conflicts with
the functions of the various Local Development Councils (LDCs) which are already legally mandated to
"assist the corresponding sanggunian in setting the direction of economic and social development, and
coordinating development efforts within its territorial jurisdiction." 234 Considering that LDCs are
instrumentalities whose functions are essentially geared towards managing local affairs, 235 their programs,
policies and resolutions should not be overridden nor duplicated by individual legislators, who are national
officers that have no law-making authority except only when acting as a body. The undermining effect on
local autonomy caused by the post-enactment authority conferred to the latter was succinctly put by
petitioners in the following wise:236
With PDAF, a Congressman can simply bypass the local development council and initiate projects on his
own, and even take sole credit for its execution. Indeed, this type of personality-driven project identification
has not only contributed little to the overall development of the district, but has even contributed to "further
weakening infrastructure planning and coordination efforts of the government."
Thus, insofar as individual legislators are authorized to intervene in purely local matters and thereby
subvert genuine local autonomy, the 2013 PDAF Article as well as all other similar forms of Congressional
Pork Barrel is deemed unconstitutional.
With this final issue on the Congressional Pork Barrel resolved, the Court now turns to the substantive
issues involving the Presidential Pork Barrel.
C. Substantive Issues on the Presidential Pork Barrel.
1. Validity of Appropriation.
Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of PD1869 (now, amended by PD
1993), which respectively provide for the Malampaya Funds and the Presidential Social Fund, as invalid
appropriations laws since they do not have the "primary and specific" purpose of authorizing the release of
public funds from the National Treasury. Petitioners submit that Section 8 of PD 910 is not an appropriation
law since the "primary and specific‖ purpose of PD 910 is the creation of an Energy Development Board
and Section 8 thereof only created a Special Fund incidental thereto. 237 In similar regard, petitioners argue
that Section 12 of PD 1869 is neither a valid appropriations law since the allocation of the Presidential
Social Fund is merely incidental to the "primary and specific" purpose of PD 1869 which is the amendment
of the Franchise and Powers of PAGCOR. 238 In view of the foregoing, petitioners suppose that such funds
are being used without any valid law allowing for their proper appropriation in violation of Section 29(1),
Article VI of the 1987 Constitution which states that: "No money shall be paid out of the Treasury except in
pursuance of an appropriation made by law."239
The Court disagrees.
"An appropriation made by law‖ under the contemplation of Section 29(1), Article VI of the 1987
Constitution exists when a provision of law (a) sets apart a determinate or determinable 240 amount of
money and (b) allocates the same for a particular public purpose. These two minimum designations of
amount and purpose stem from the very definition of the word "appropriation," which means "to allot,
assign, set apart or apply to a particular use or purpose," and hence, if written into the law, demonstrate
that the legislative intent to appropriate exists. As the Constitution "does not provide or prescribe any
particular form of words or religious recitals in which an authorization or appropriation by Congress shall be
made, except that it be ‘made by law,‘" an appropriation law may – according to Philconsa – be "detailed
and as broad as Congress wants it to be" for as long as the intent to appropriate may be gleaned from the
same. As held in the case of Guingona, Jr.:241
There is no provision in our Constitution that provides or prescribes any particular form of words or religious
recitals in which an authorization or appropriation by Congress shall be made, except that it be "made by
law," such as precisely the authorization or appropriation under the questioned presidential decrees. In
other words, in terms of time horizons, an appropriation may be made impliedly (as by past but subsisting
legislations) as well as expressly for the current fiscal year (as by enactment of laws by the present
Congress), just as said appropriation may be made in general as well as in specific terms. The
Congressional authorization may be embodied in annual laws, such as a general appropriations act or in
special provisions of laws of general or special application which appropriate public funds for specific public
purposes, such as the questioned decrees. An appropriation measure is sufficient if the legislative intention
clearly and certainly appears from the language employed (In re Continuing Appropriations, 32 P. 272),
whether in the past or in the present. (Emphases and underscoring supplied)
Likewise, as ruled by the US Supreme Court in State of Nevada v. La Grave: 242
To constitute an appropriation there must be money placed in a fund applicable to the designated purpose.
The word appropriate means to allot, assign, set apart or apply to a particular use or purpose. An
appropriation in the sense of the constitution means the setting apart a portion of the public funds for a
public purpose. No particular form of words is necessary for the purpose, if the intention to appropriate is
plainly manifested. (Emphases supplied)
Thus, based on the foregoing, the Court cannot sustain the argument that the appropriation must be the
"primary and specific" purpose of the law in order for a valid appropriation law to exist. To reiterate, if a
legal provision designates a determinate or determinable amount of money and allocates the same for a
particular public purpose, then the legislative intent to appropriate becomes apparent and, hence, already
sufficient to satisfy the requirement of an "appropriation made by law" under contemplation of the
Constitution.
Section 8 of PD 910 pertinently provides:
Section 8. Appropriations. x x x
All fees, revenues and receipts of the Board from any and all sources including receipts from service
contracts and agreements such as application and processing fees, signature bonus, discovery bonus,
production bonus; all money collected from concessionaires, representing unspent work obligations, fines
and penalties under the Petroleum Act of 1949; as well as the government share representing royalties,
rentals, production share on service contracts and similar payments on the exploration, development and
exploitation of energy resources, shall form part of a Special Fund to be used to finance energy resource
development and exploitation programs and projects of the government and for such other purposes as
may be hereafter directed by the President. (Emphases supplied)
Whereas Section 12 of PD 1869, as amended by PD 1993, reads:
Sec. 12. Special Condition of Franchise. — After deducting five (5%) percent as Franchise Tax, the Fifty
(50%) percent share of the Government in the aggregate gross earnings of the Corporation from this
Franchise, or 60% if the aggregate gross earnings be less than ₱150,000,000.00 shall be set aside and
shall accrue to the General Fund to finance the priority infrastructure development projects and to finance
the restoration of damaged or destroyed facilities due to calamities, as may be directed and authorized by
the Office of the President of the Philippines. (Emphases supplied)
Analyzing the legal text vis-à-vis the above-mentioned principles, it may then be concluded that (a) Section
8 of PD 910, which creates a Special Fund comprised of "all fees, revenues, and receipts of the Energy
Development Board from any and all sources" (a determinable amount) "to be used to finance energy
resource development and exploitation programs and projects of the government and for such other
purposes as may be hereafter directed by the President" (a specified public purpose), and (b) Section 12 of
PD 1869, as amended by PD 1993, which similarly sets aside, "after deducting five (5%) percent as
Franchise Tax, the Fifty (50%) percent share of the Government in the aggregate gross earnings of
PAGCOR, or 60%, if the aggregate gross earnings be less than ₱150,000,000.00" (also a determinable
amount) "to finance the priority infrastructure development projects and x x x the restoration of damaged or
destroyed facilities due to calamities, as may be directed and authorized by the Office of the President of
the Philippines" (also a specified public purpose), are legal appropriations under Section 29(1), Article VI of
the 1987 Constitution.
In this relation, it is apropos to note that the 2013 PDAF Article cannot be properly deemed as a legal
appropriation under the said constitutional provision precisely because, as earlier stated, it contains post-
enactment measures which effectively create a system of intermediate appropriations. These intermediate
appropriations are the actual appropriations meant for enforcement and since they are made by individual
legislators after the GAA is passed, they occur outside the law. As such, the Court observes that the real
appropriation made under the 2013 PDAF Article is not the ₱24.79 Billion allocated for the entire PDAF, but
rather the post-enactment determinations made by the individual legislators which are, to repeat,
occurrences outside of the law. Irrefragably, the 2013 PDAF Article does not constitute an "appropriation
made by law" since it, in its truest sense, only authorizes individual legislators to appropriate in violation of
the non-delegability principle as afore-discussed.
2. Undue Delegation.
On a related matter, petitioners contend that Section 8 of PD 910 constitutes an undue delegation of
legislative power since the phrase "and for such other purposes as may be hereafter directed by the
President" gives the President "unbridled discretion to determine for what purpose the funds will be
used."243 Respondents, on the other hand, urged the Court to apply the principle of ejusdem generis to the
same section and thus, construe the phrase "and for such other purposes as may be hereafter directed by
the President" to refer only to other purposes related "to energy resource development and exploitation
programs and projects of the government."244
The Court agrees with petitioners‘ submissions.
While the designation of a determinate or determinable amount for a particular public purpose is sufficient
for a legal appropriation to exist, the appropriation law must contain adequate legislative guidelines if the
same law delegates rule-making authority to the Executive 245 either for the purpose of (a) filling up the
details of the law for its enforcement, known as supplementary rule-making, or (b) ascertaining facts to
bring the law into actual operation, referred to as contingent rule-making. 246 There are two (2) fundamental
tests to ensure that the legislative guidelines for delegated rule-making are indeed adequate. The first test
is called the "completeness test." Case law states that a law is complete when it sets forth therein the
policy to be executed, carried out, or implemented by the delegate. On the other hand, the second test is
called the "sufficient standard test." Jurisprudence holds that a law lays down a sufficient standard when it
provides adequate guidelines or limitations in the law to map out the boundaries of the delegate‘s authority
and prevent the delegation from running riot.247 To be sufficient, the standard must specify the limits of the
delegate‘s authority, announce the legislative policy, and identify the conditions under which it is to be
implemented.248
In view of the foregoing, the Court agrees with petitioners that the phrase "and for such other purposes as
may be hereafter directed by the President" under Section 8 of PD 910 constitutes an undue delegation of
legislative power insofar as it does not lay down a sufficient standard to adequately determine the limits of
the President‘s authority with respect to the purpose for which the Malampaya Funds may be used. As it
reads, the said phrase gives the President wide latitude to use the Malampaya Funds for any other purpose
he may direct and, in effect, allows him to unilaterally appropriate public funds beyond the purview of the
law. That the subject phrase may be confined only to "energy resource development and exploitation
programs and projects of the government" under the principle of ejusdem generis, meaning that the
general word or phrase is to be construed to include – or be restricted to – things akin to, resembling, or of
the same kind or class as those specifically mentioned, 249 is belied by three (3) reasons: first, the phrase
"energy resource development and exploitation programs and projects of the government" states a singular
and general class and hence, cannot be treated as a statutory reference of specific things from which the
general phrase "for such other purposes" may be limited; second, the said phrase also exhausts the class it
represents, namely energy development programs of the government; 250 and, third, the Executive
department has, in fact, used the Malampaya Funds for non-energy related purposes under the subject
phrase, thereby contradicting respondents‘ own position that it is limited only to "energy resource
development and exploitation programs and projects of the government." 251 Thus, while Section 8 of PD
910 may have passed the completeness test since the policy of energy development is clearly deducible
from its text, the phrase "and for such other purposes as may be hereafter directed by the President" under
the same provision of law should nonetheless be stricken down as unconstitutional as it lies independently
unfettered by any sufficient standard of the delegating law. This notwithstanding, it must be underscored
that the rest of Section 8, insofar as it allows for the use of the Malampaya Funds "to finance energy
resource development and exploitation programs and projects of the government," remains legally effective
and subsisting. Truth be told, the declared unconstitutionality of the aforementioned phrase is but an
assurance that the Malampaya Funds would be used – as it should be used – only in accordance with the
avowed purpose and intention of PD 910.
As for the Presidential Social Fund, the Court takes judicial notice of the fact that Section 12 of PD 1869
has already been amended by PD 1993 which thus moots the parties‘ submissions on the
same.252 Nevertheless, since the amendatory provision may be readily examined under the current
parameters of discussion, the Court proceeds to resolve its constitutionality.
Primarily, Section 12 of PD 1869, as amended by PD 1993, indicates that the Presidential Social Fund may
be used "to first, finance the priority infrastructure development projects and second, to finance the
restoration of damaged or destroyed facilities due to calamities, as may be directed and authorized by the
Office of the President of the Philippines." The Court finds that while the second indicated purpose
adequately curtails the authority of the President to spend the Presidential Social Fund only for restoration
purposes which arise from calamities, the first indicated purpose, however, gives him carte blanche
authority to use the same fund for any infrastructure project he may so determine as a "priority". Verily, the
law does not supply a definition of "priority in frastructure development projects" and hence, leaves the
President without any guideline to construe the same. To note, the delimitation of a project as one of
"infrastructure" is too broad of a classification since the said term could pertain to any kind of facility. This
may be deduced from its lexicographic definition as follows: "the underlying framework of a system,
especially public services and facilities (such as highways, schools, bridges, sewers, and water-systems)
needed to support commerce as well as economic and residential development." 253In fine, the phrase "to
finance the priority infrastructure development projects" must be stricken down as unconstitutional since –
similar to the above-assailed provision under Section 8 of PD 910 – it lies independently unfettered by any
sufficient standard of the delegating law. As they are severable, all other provisions of Section 12 of PD
1869, as amended by PD 1993, remains legally effective and subsisting.
D. Ancillary Prayers. 1.
Petitioners’ Prayer to be Furnished Lists and Detailed Reports.
Aside from seeking the Court to declare the Pork Barrel System unconstitutional – as the Court did so in
the context of its pronouncements made in this Decision – petitioners equally pray that the Executive
Secretary and/or the DBM be ordered to release to the CoA and to the public: (a) "the complete
schedule/list of legislators who have availed of their PDAF and VILP from the years 2003 to 2013,
specifying the use of the funds, the project or activity and the recipient entities or individuals, and all
pertinent data thereto" (PDAF Use Schedule/List); 254 and (b) "the use of the Executive‘s lump-sum,
discretionary funds, including the proceeds from the x x x Malampaya Funds and remittances from the
PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity and the recipient entities or
individuals, and all pertinent data thereto" 255(Presidential Pork Use Report). Petitioners‘ prayer is grounded
on Section 28, Article II and Section 7, Article III of the 1987 Constitution which read as follows:
ARTICLE II
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of
full public disclosure of all its transactions involving public interest.
ARTICLE III Sec. 7.
The right of the people to information on matters of public concern shall be recognized. Access to official
records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall be afforded the citizen, subject to
such limitations as may be provided by law.
The Court denies petitioners‘ submission.
Case law instructs that the proper remedy to invoke the right to information is to file a petition for
mandamus. As explained in the case of Legaspi v. Civil Service Commission: 256
While the manner of examining public records may be subject to reasonable regulation by the government
agency in custody thereof, the duty to disclose the information of public concern, and to afford access to
public records cannot be discretionary on the part of said agencies. Certainly, its performance cannot be
made contingent upon the discretion of such agencies. Otherwise, the enjoyment of the constitutional right
may be rendered nugatory by any whimsical exercise of agency discretion. The constitutional duty, not
being discretionary, its performance may be compelled by a writ of mandamus in a proper case.
But what is a proper case for Mandamus to issue? In the case before Us, the public right to be enforced
and the concomitant duty of the State are unequivocably set forth in the Constitution.
The decisive question on the propriety of the issuance of the writ of mandamus in this case is, whether the
information sought by the petitioner is within the ambit of the constitutional guarantee. (Emphases supplied)
Corollarily, in the case of Valmonte v. Belmonte Jr. 257 (Valmonte), it has been clarified that the right to
information does not include the right to compel the preparation of "lists, abstracts, summaries and the
like." In the same case, it was stressed that it is essential that the "applicant has a well -defined, clear and
certain legal right to the thing demanded and that it is the imperative duty of defendant to perform the act
required." Hence, without the foregoing substantiations, the Court cannot grant a particular request for
information. The pertinent portions of Valmonte are hereunder quoted:258
Although citizens are afforded the right to information and, pursuant thereto, are entitled to "access to
official records," the Constitution does not accord them a right to compel custodians of official records to
prepare lists, abstracts, summaries and the like in their desire to acquire information on matters of public
concern.
It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a well-defined,
clear and certain legal right to the thing demanded and that it is the imperative duty of defendant to perform
the act required. The corresponding duty of the respondent to perform the required act must be clear and
specific Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126 SCRA 203; Ocampo v. Subido, G.R.
No. L-28344, August 27, 1976, 72 SCRA 443.
The request of the petitioners fails to meet this standard, there being no duty on the part of respondent to
prepare the list requested. (Emphases supplied)
In these cases, aside from the fact that none of the petitions are in the nature of mandamus actions, the
Court finds that petitioners have failed to establish a "a well-defined, clear and certain legal right" to be
furnished by the Executive Secretary and/or the DBM of their requested PDAF Use Schedule/List and
Presidential Pork Use Report. Neither did petitioners assert any law or administrative issuance which would
form the bases of the latter‘s duty to furnish them with the documents requested. While petitioners pray that
said information be equally released to the CoA, it must be pointed out that the CoA has not been
impleaded as a party to these cases nor has it filed any petition before the Court to be allowed access to or
to compel the release of any official document relevant to the conduct of its audit investigations. While the
Court recognizes that the information requested is a matter of significant public concern, however, if only to
ensure that the parameters of disclosure are properly foisted and so as not to unduly hamper the equally
important interests of the government, it is constrained to deny petitioners‘ prayer on this score, without
prejudice to a proper mandamus case which they, or even the CoA, may choose to pursue through a
separate petition.
It bears clarification that the Court‘s denial herein should only cover petitioners‘ plea to be furnished with
such schedule/list and report and not in any way deny them, or the general public, access to official
documents which are already existing and of public record. Subject to reasonable regulation and absent
any valid statutory prohibition, access to these documents should not be proscribed. Thus, in Valmonte,
while the Court denied the application for mandamus towards the preparation of the list requested by
petitioners therein, it nonetheless allowed access to the documents sought for by the latter, subject,
however, to the custodian‘s reasonable regulations,viz.:259
In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS, subject to
reasonable regulations that the latter may promulgate relating to the manner and hours of examination, to
the end that damage to or loss of the records may be avoided, that undue interference with the duties of
the custodian of the records may be prevented and that the right of other persons entitled to inspect the
records may be insured Legaspi v. Civil Service Commission, supra at p. 538, quoting Subido v. Ozaeta, 80
Phil. 383, 387. The petition, as to the second and third alternative acts sought to be done by petitioners, is
meritorious.
However, the same cannot be said with regard to the first act sought by petitioners, i.e.,
"to furnish petitioners the list of the names of the Batasang Pambansa members belonging to the UNIDO
and PDP-Laban who were able to secure clean loans immediately before the February 7 election thru the
intercession/marginal note of the then First Lady Imelda Marcos."
The Court, therefore, applies the same treatment here.
2. Petitioners’ Prayer to Include Matters in Congressional Deliberations.
Petitioners further seek that the Court "order the inclusion in budgetary deliberations with the Congress of
all presently, off-budget, lump sum, discretionary funds including but not limited to, proceeds from the x x x
Malampaya Fund, remittances from the PAGCOR and the PCSO or the Executive‘s Social Funds." 260
Suffice it to state that the above-stated relief sought by petitioners covers a matter which is generally left to
the prerogative of the political branches of government. Hence, lest the Court itself overreach, it must
equally deny their prayer on this score.
3. Respondents’ Prayer to Lift TRO; Consequential Effects of Decision.
The final issue to be resolved stems from the interpretation accorded by the DBM to the concept of
released funds. In response to the Court‘s September 10, 2013 TRO that enjoined the release of the
remaining PDAF allocated for the year 2013, the DBM issued Circular Letter No. 2013-8 dated September
27, 2013 (DBM Circular 2013-8) which pertinently reads as follows:
3.0 Nonetheless, PDAF projects funded under the FY 2013 GAA, where a Special Allotment Release Order
(SARO) has been issued by the DBM and such SARO has been obligated by the implementing agencies
prior to the issuance of the TRO, may continually be implemented and disbursements thereto effected by
the agencies concerned.
Based on the text of the foregoing, the DBM authorized the continued implementation and disbursement of
PDAF funds as long as they are: first, covered by a SARO; and, second, that said SARO had been
obligated by the implementing agency concerned prior to the issuance of the Court‘s September 10, 2013
TRO.
Petitioners take issue with the foregoing circular, arguing that "the issuance of the SARO does not yet
involve the release of funds under the PDAF, as release is only triggered by the issuance of a Notice of
Cash Allocation [(NCA)]."261 As such, PDAF disbursements, even if covered by an obligated SARO, should
remain enjoined.
For their part, respondents espouse that the subject TRO only covers "unreleased and unobligated
allotments." They explain that once a SARO has been issued and obligated by the implementing agency
concerned, the PDAF funds covered by the same are already "beyond the reach of the TRO because they
cannot be considered as ‘remaining PDAF.‘" They conclude that this is a reasonable interpretation of the
TRO by the DBM.262
The Court agrees with petitioners in part.
At the outset, it must be observed that the issue of whether or not the Court‘s September 10, 2013 TRO
should be lifted is a matter rendered moot by the present Decision. The unconstitutionality of the 2013
PDAF Article as declared herein has the consequential effect of converting the temporary injunction into a
permanent one. Hence, from the promulgation of this Decision, the release of the remaining PDAF funds
for 2013, among others, is now permanently enjoined.
The propriety of the DBM‘s interpretation of the concept of "release" must, nevertheless, be resolved as it
has a practical impact on the execution of the current Decision. In particular, the Court must resolve the
issue of whether or not PDAF funds covered by obligated SAROs, at the time this Decision is promulgated,
may still be disbursed following the DBM‘s interpretation in DBM Circular 2013-8.
On this score, the Court agrees with petitioners‘ posturing for the fundamental reason that funds covered
by an obligated SARO are yet to be "released" under legal contemplation. A SARO, as defined by the DBM
itself in its website, is "aspecific authority issued to identified agencies to incur obligations not exceeding a
given amount during a specified period for the purpose indicated. It shall cover expenditures the release of
which is subject to compliance with specific laws or regulations, or is subject to separate approval or
clearance by competent authority."263
Based on this definition, it may be gleaned that a SARO only evinces the existence of an obligation and not
the directive to pay. Practically speaking, the SARO does not have the direct and immediate effect of
placing public funds beyond the control of the disbursing authority. In fact, a SARO may even be withdrawn
under certain circumstances which will prevent the actual release of funds. On the other hand, the actual
release of funds is brought about by the issuance of the NCA, 264which is subsequent to the issuance of a
SARO. As may be determined from the statements of the DBM representative during the Oral
Arguments:265
Justice Bernabe: Is the notice of allocation issued simultaneously with the SARO?
xxxx
Atty. Ruiz: It comes after. The SARO, Your Honor, is only the go signal for the agencies to obligate or to
enter into commitments. The NCA, Your Honor, is already the go signal to the treasury for us to be able to
pay or to liquidate the amounts obligated in the SARO; so it comes after. x x x The NCA, Your Honor, is the
go signal for the MDS for the authorized government-disbursing banks to, therefore, pay the payees
depending on the projects or projects covered by the SARO and the NCA.
Justice Bernabe: Are there instances that SAROs are cancelled or revoked?
Atty. Ruiz: Your Honor, I would like to instead submit that there are instances that the SAROs issued are
withdrawn by the DBM.
Justice Bernabe: They are withdrawn?
Atty. Ruiz: Yes, Your Honor x x x. (Emphases and underscoring supplied)
Thus, unless an NCA has been issued, public funds should not be treated as funds which have been
"released." In this respect, therefore, the disbursement of 2013 PDAF funds which are only covered by
obligated SAROs, and without any corresponding NCAs issued, must, at the time of this Decision’s
promulgation, be enjoined and consequently reverted to the unappropriated surplus of the general fund.
Verily, in view of the declared unconstitutionality of the 2013 PDAF Article, the funds appropriated pursuant
thereto cannot be disbursed even though already obligated, else the Court sanctions the dealing of funds
coming from an unconstitutional source.
This same pronouncement must be equally applied to (a) the Malampaya Funds which have been
obligated but not released – meaning, those merely covered by a SARO – under the phrase "and for such
other purposes as may be hereafter directed by the President" pursuant to Section 8 of PD 910; and (b)
funds sourced from the Presidential Social Fund under the phrase "to finance the priority infrastructure
development projects" pursuant to Section 12 of PD 1869, as amended by PD 1993, which were altogether
declared by the Court as unconstitutional. However, these funds should not be reverted to the general fund
as afore-stated but instead, respectively remain under the Malampaya Funds and the Presidential Social
Fund to be utilized for their corresponding special purposes not otherwise declared as unconstitutional.
E. Consequential Effects of Decision.
As a final point, it must be stressed that the Court‘s pronouncement anent the unconstitutionality of (a) the
2013 PDAF Article and its Special Provisions, (b) all other Congressional Pork Barrel provisions similar
thereto, and (c) the phrases (1) "and for such other purposes as may be hereafter directed by the
President" under Section 8 of PD 910, and (2) "to finance the priority infrastructure development projects"
under Section 12 of PD 1869, as amended by PD 1993, must only be treated as prospective in effect in
view of the operative fact doctrine.
To explain, the operative fact doctrine exhorts the recognition that until the judiciary, in an appropriate case,
declares the invalidity of a certain legislative or executive act, such act is presumed constitutional and thus,
entitled to obedience and respect and should be properly enforced and complied with. As explained in the
recent case of Commissioner of Internal Revenue v. San Roque Power Corporation, 266 the doctrine merely
"reflects awareness that precisely because the judiciary is the governmental organ which has the final say
on whether or not a legislative or executive measure is valid, a period of time may have elapsed before it
can exercise the power of judicial review that may lead to a declaration of nullity. It would be to deprive the
law of its quality of fairness and justice then, if there be no recognition of what had transpired prior to such
adjudication."267 "In the language of an American Supreme Court decision: ‘The actual existence of a
statute, prior to such a determination of unconstitutionality, is an operative fact and may have
consequences which cannot justly be ignored.‘"268
For these reasons, this Decision should be heretofore applied prospectively.
Conclusion
The Court renders this Decision to rectify an error which has persisted in the chronicles of our history. In
the final analysis, the Court must strike down the Pork Barrel System as unconstitutional in view of the
inherent defects in the rules within which it operates. To recount, insofar as it has allowed legislators to
wield, in varying gradations, non-oversight, post-enactment authority in vital areas of budget execution, the
system has violated the principle of separation of powers; insofar as it has conferred unto legislators the
power of appropriation by giving them personal, discretionary funds from which they are able to fund
specific projects which they themselves determine, it has similarly violated the principle of non-delegability
of legislative power ; insofar as it has created a system of budgeting wherein items are not textualized into
the appropriations bill, it has flouted the prescribed procedure of presentment and, in the process, denied
the President the power to veto items ; insofar as it has diluted the effectiveness of congressional oversight
by giving legislators a stake in the affairs of budget execution, an aspect of governance which they may be
called to monitor and scrutinize, the system has equally impaired public accountability ; insofar as it has
authorized legislators, who are national officers, to intervene in affairs of purely local nature, despite the
existence of capable local institutions, it has likewise subverted genuine local autonomy ; and again, insofar
as it has conferred to the President the power to appropriate funds intended by law for energy-related
purposes only to other purposes he may deem fit as well as other public funds under the broad
classification of "priority infrastructure development projects," it has once more transgressed the principle of
non-delegability.
For as long as this nation adheres to the rule of law, any of the multifarious unconstitutional methods and
mechanisms the Court has herein pointed out should never again be adopted in any system of governance,
by any name or form, by any semblance or similarity, by any influence or effect. Disconcerting as it is to
think that a system so constitutionally unsound has monumentally endured, the Court urges the people and
its co-stewards in government to look forward with the optimism of change and the awareness of the past.
At a time of great civic unrest and vociferous public debate, the Court fervently hopes that its Decision
today, while it may not purge all the wrongs of society nor bring back what has been lost, guides this nation
to the path forged by the Constitution so that no one may heretofore detract from its cause nor stray from
its course. After all, this is the Court‘s bounden duty and no other‘s.
WHEREFORE, the petitions are PARTLY GRANTED. In view of the constitutional violations discussed in
this Decision, the Court hereby declares as UNCONSTITUTIONAL: (a) the entire 2013 PDAF Article; (b) all
legal provisions of past and present Congressional Pork Barrel Laws, such as the previous PDAF and CDF
Articles and the various Congressional Insertions, which authorize/d legislators – whether individually or
collectively organized into committees – to intervene, assume or participate in any of the various post-
enactment stages of the budget execution, such as but not limited to the areas of project identification,
modification and revision of project identification, fund release and/or fund realignment, unrelated to the
power of congressional oversight; (c) all legal provisions of past and present Congressional Pork Barrel
Laws, such as the previous PDAF and CDF Articles and the various Congressional Insertions, which
confer/red personal, lump-sum allocations to legislators from which they are able to fund specific projects
which they themselves determine; (d) all informal practices of similar import and effect, which the Court
similarly deems to be acts of grave abuse of discretion amounting to lack or excess of jurisdiction; and (e)
the phrases (1) "and for such other purposes as may be hereafter directed by the President" under Section
8 of Presidential Decree No. 910 and (2) "to finance the priority infrastructure development projects" under
Section 12 of Presidential Decree No. 1869, as amended by Presidential Decree No. 1993, for both failing
the sufficient standard test in violation of the principle of non-delegability of legislative power.
Accordingly, the Court‘s temporary injunction dated September 10, 2013 is hereby declared to be
PERMANENT. Thus, the disbursement/release of the remaining PDAF funds allocated for the year 2013,
as well as for all previous years, and the funds sourced from (1) the Malampaya Funds under the phrase
"and for such other purposes as may be hereafter directed by the President" pursuant to Section 8 of
Presidential Decree No. 910, and (2) the Presidential Social Fund under the phrase "to finance the priority
infrastructure development projects" pursuant to Section 12 of Presidential Decree No. 1869, as amended
by Presidential Decree No. 1993, which are, at the time this Decision is promulgated, not covered by Notice
of Cash Allocations (NCAs) but only by Special Allotment Release Orders (SAROs), whether obligated or
not, are hereby ENJOINED. The remaining PDAF funds covered by this permanent injunction shall not be
disbursed/released but instead reverted to the unappropriated surplus of the general fund, while the funds
under the Malampaya Funds and the Presidential Social Fund shall remain therein to be utilized for their
respective special purposes not otherwise declared as unconstitutional.
On the other hand, due to improper recourse and lack of proper substantiation, the Court hereby DENIES
petitioners‘ prayer seeking that the Executive Secretary and/or the Department of Budget and Management
be ordered to provide the public and the Commission on Audit complete lists/schedules or detailed reports
related to the availments and utilization of the funds subject of these cases. Petitioners‘ access to official
documents already available and of public record which are related to these funds must, however, not be
prohibited but merely subjected to the custodian‘s reasonable regulations or any valid statutory prohibition
on the same. This denial is without prejudice to a proper mandamus case which they or the Commission on
Audit may choose to pursue through a separate petition.
The Court also DENIES petitioners prayer to order the inclusion of the funds subject of these cases in the
budgetary deliberations of Congress as the same is a matter left to the prerogative of the political branches
of government.
Finally, the Court hereby DIRECTS all prosecutorial organs of the government to, within the bounds of
reasonable dispatch, investigate and accordingly prosecute all government officials and/or private
individuals for possible criminal offenses related to the irregular, improper and/or unlawful
disbursement/utilization of all funds under the Pork Barrel System.
This Decision is immediately executory but prospective in effect.
SO ORDERED.
ESTELA M. PERLAS-BERNABE
Associate Justice
WE CONCUR:

G.R. No. 221697

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,
vs.
COMELEC AND ESTRELLA C. ELAMPARO Respondents.
x-----------------------x
G.R. No. 221698-700
MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,
vs.
COMELEC, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND AMADO D. VALDEZ Respondents.
DECISION
PEREZ, J.:
Before the Court are two consolidated petitions under Rule 64 in relation to Rule 65 of the Rules of Court
with extremely urgent application for an ex parte issuance of temporary restraining order/status quo
ante order and/or writ of preliminary injunction assailing the following: (1) 1 December 2015 Resolution of
the Commission on Elections (COMELEC) Second Division; (2) 23 December 2015 Resolution of the
COMELEC En Banc, in SPA No. 15-001 (DC); (3) 11 December 2015 Resolution of the COMELEC First
Division; and ( 4) 23 December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-002 (DC), SPA
No. 15-007 (DC) and SPA No. 15-139 (DC) for having been issued without jurisdiction or with grave abuse
of discretion amounting to lack or excess of jurisdiction.
The Facts
Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found abandoned as a newborn infant in the
Parish Church of Jaro, Iloilo by a certain Edgardo Militar (Edgardo) on 3 September 1968. Parental care
and custody over petitioner was passed on by Edgardo to his relatives, Emiliano Militar (Emiliano) and his
wife. Three days after, 6 September 1968, Emiliano reported and registered petitioner as a foundling with
the Office of the Civil Registrar of Iloilo City (OCR-Iloilo). In her Foundling Certificate and Certificate of Live
Birth, the petitioner was given the name "Mary Grace Natividad Contreras Militar." 1
When petitioner was five (5) years old, celebrity spouses Ronald Allan Kelley Poe (a.k.a. Fenando Poe, Jr.)
and Jesusa Sonora Poe (a.k.a. Susan Roces) filed a petition for her adoption with the Municipal Trial Court
(MTC) of San Juan City. On 13 May 1974, the trial court granted their petition and ordered that petitioner's
name be changed from "Mary Grace Natividad Contreras Militar" to "Mary Grace Natividad Sonora Poe."
Although necessary notations were made by OCR-Iloilo on petitioner's foundling certificate reflecting the
court decreed adoption,2 the petitioner's adoptive mother discovered only sometime in the second half of
2005 that the lawyer who handled petitioner's adoption failed to secure from the OCR-Iloilo a new
Certificate of Live Birth indicating petitioner's new name and the name of her adoptive parents. 3 Without
delay, petitioner's mother executed an affidavit attesting to the lawyer's omission which she submitted to
the OCR-Iloilo. On 4 May 2006, OCR-Iloilo issued a new Certificate of Live Birth in the name of Mary Grace
Natividad Sonora Poe.4
Having reached the age of eighteen (18) years in 1986, petitioner registered as a voter with the local
COMELEC Office in San Juan City. On 13 December 1986, she received her COMELEC Voter's
Identification Card for Precinct No. 196 in Greenhills, San Juan, Metro Manila. 5
On 4 April 1988, petitioner applied for and was issued Philippine Passport No. F927287 6 by the Department
of Foreign Affairs (DFA). Subsequently, on 5 April 1993 and 19 May 1998, she renewed her Philippine
passport and respectively secured Philippine Passport Nos. L881511 and DD156616. 7
Initially, the petitioner enrolled and pursued a degree in Development Studies at the University of the
Philippines8 but she opted to continue her studies abroad and left for the United States of America (U.S.) in
1988. Petitioner graduated in 1991 from Boston College in Chestnuts Hill, Massachusetts where she
earned her Bachelor of Arts degree in Political Studies. 9
On 27 July 1991, petitioner married Teodoro Misael Daniel V. Llamanzares (Llamanzares), a citizen of both
the Philippines and the U.S., at Sanctuario de San Jose Parish in San Juan City. 10 Desirous of being with
her husband who was then based in the U.S., the couple flew back to the U.S. two days after the wedding
ceremony or on 29 July 1991. 11
While in the U.S., the petitioner gave birth to her eldest child Brian Daniel (Brian) on 16 April 1992. 12 Her
two daughters Hanna MacKenzie (Hanna) and Jesusa Anika (Anika) were both born in the Philippines on
10 July 1998 and 5 June 2004, respectively. 13
On 18 October 2001, petitioner became a naturalized American citizen. 14 She obtained U.S. Passport No.
017037793 on 19 December 2001. 15
On 8 April 2004, the petitioner came back to the Philippines together with Hanna to support her father's
candidacy for President in the May 2004 elections. It was during this time that she gave birth to her
youngest daughter Anika. She returned to the U.S. with her two daughters on 8 July 2004. 16
After a few months, specifically on 13 December 2004, petitioner rushed back to the Philippines upon
learning of her father's deteriorating medical condition. 17 Her father slipped into a coma and eventually
expired. The petitioner stayed in the country until 3 February 2005 to take care of her father's funeral
arrangements as well as to assist in the settlement of his estate.18
According to the petitioner, the untimely demise of her father was a severe blow to her entire family. In her
earnest desire to be with her grieving mother, the petitioner and her husband decided to move and reside
permanently in the Philippines sometime in the first quarter of 2005. 19 The couple began preparing for their
resettlement including notification of their children's schools that they will be transferring to Philippine
schools for the next semester;20 coordination with property movers for the relocation of their household
goods, furniture and cars from the U.S. to the Philippines; 21 and inquiry with Philippine authorities as to the
proper procedure to be followed in bringing their pet dog into the country. 22 As early as 2004, the petitioner
already quit her job in the U.S.23
Finally, petitioner came home to the Philippines on 24 May 2005 24 and without delay, secured a Tax
Identification Number from the Bureau of Internal Revenue. Her three (3) children immediately
followed25 while her husband was forced to stay in the U.S. to complete pending projects as well as to
arrange the sale of their family home there.26
The petitioner and her children briefly stayed at her mother's place until she and her husband purchased a
condominium unit with a parking slot at One Wilson Place Condominium in San Juan City in the second
half of 2005.27 The corresponding Condominium Certificates of Title covering the unit and parking slot were
issued by the Register of Deeds of San Juan City to petitioner and her husband on 20 February
2006.28 Meanwhile, her children of school age began attending Philippine private schools.
On 14 February 2006, the petitioner made a quick trip to the U.S. to supervise the disposal of some of the
family's remaining household belongings.29 She travelled back to the Philippines on 11 March 2006. 30
In late March 2006, petitioner's husband officially informed the U.S. Postal Service of the family's change
and abandonment of their address in the U.S. 31 The family home was eventually sold on 27 April
2006.32 Petitioner's husband resigned from his job in the U.S. in April 2006, arrived in the country on 4 May
2006 and started working for a major Philippine company in July 2006. 33
In early 2006, petitioner and her husband acquired a 509-square meter lot in Corinthian Hills, Quezon City
where they built their family home34 and to this day, is where the couple and their children have been
residing.35 A Transfer Certificate of Title covering said property was issued in the couple's name by the
Register of Deeds of Quezon City on 1June 2006.
On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of the Philippines pursuant to
Republic Act (R.A.) No. 9225 or the Citizenship Retention and Re-acquisition Act of 2003. 36 Under the
same Act, she filed with the Bureau of Immigration (BI) a sworn petition to reacquire Philippine citizenship
together with petitions for derivative citizenship on behalf of her three minor children on 10 July 2006. 37 As
can be gathered from its 18 July 2006 Order, the BI acted favorably on petitioner's petitions and declared
that she is deemed to have reacquired her Philippine citizenship while her children are considered as
citizens of the Philippines.38 Consequently, the BI issued Identification Certificates (ICs) in petitioner's name
and in the names of her three (3) children. 39
Again, petitioner registered as a voter of Barangay Santa Lucia, San Juan City on 31 August 2006. 40 She
also secured from the DFA a new Philippine Passport bearing the No. XX4731999. 41 This passport was
renewed on 18 March 2014 and she was issued Philippine Passport No. EC0588861 by the DFA. 42
On 6 October 2010, President Benigno S. Aquino III appointed petitioner as Chairperson of the Movie and
Television Review and Classification Board (MTRCB). 43 Before assuming her post, petitioner executed an
"Affidavit of Renunciation of Allegiance to the United States of America and Renunciation of American
Citizenship" before a notary public in Pasig City on 20 October 2010, 44 in satisfaction of the legal requisites
stated in Section 5 of R.A. No. 9225. 45 The following day, 21 October 2010 petitioner submitted the said
affidavit to the BI46 and took her oath of office as Chairperson of the MTRCB. 47 From then on, petitioner
stopped using her American passport.48
On 12 July 2011, the petitioner executed before the Vice Consul of the U.S. Embassy in Manila an
"Oath/Affirmation of Renunciation of Nationality of the United States." 49 On that day, she accomplished a
sworn questionnaire before the U.S. Vice Consul wherein she stated that she had taken her oath as
MTRCB Chairperson on 21 October 2010 with the intent, among others, of relinquishing her American
citizenship.50 In the same questionnaire, the petitioner stated that she had resided outside of the U.S.,
specifically in the Philippines, from 3 September 1968 to 29 July 1991 and from May 2005 to present. 51
On 9 December 2011, the U.S. Vice Consul issued to petitioner a "Certificate of Loss of Nationality of the
United States" effective 21 October 2010.52
On 2 October 2012, the petitioner filed with the COMELEC her Certificate of Candidacy (COC) for Senator
for the 2013 Elections wherein she answered "6 years and 6 months" to the question "Period of residence
in the Philippines before May 13, 2013." 53 Petitioner obtained the highest number of votes and was
proclaimed Senator on 16 May 2013. 54
On 19 December 2013, petitioner obtained Philippine Diplomatic Passport No. DE0004530. 55

On 15 October 2015, petitioner filed her COC for the Presidency for the May 2016 Elections. 56 In her COC,
the petitioner declared that she is a natural-born citizen and that her residence in the Philippines up to the
day before 9 May 2016 would be ten (10) years and eleven (11) months counted from 24 May 2005. 57 The
petitioner attached to her COC an "Affidavit Affirming Renunciation of U.S.A. Citizenship" subscribed and
sworn to before a notary public in Quezon City on 14 October 2015. 58
Petitioner's filing of her COC for President in the upcoming elections triggered the filing of several
COMELEC cases against her which were the subject of these consolidated cases.
Origin of Petition for Certiorari in G.R. No. 221697
A day after petitioner filed her COC for President, Estrella Elamparo (Elamparo) filed a petition to deny due
course or cancel said COC which was docketed as SPA No. 15-001 (DC) and raffled to the COMELEC
Second Division.59 She is convinced that the COMELEC has jurisdiction over her petition. 60 Essentially,
Elamparo's contention is that petitioner committed material misrepresentation when she stated in her COC
that she is a natural-born Filipino citizen and that she is a resident of the Philippines for at least ten (10)
years and eleven (11) months up to the day before the 9 May 2016 Elections. 61
On the issue of citizenship, Elamparo argued that petitioner cannot be considered as a natural-born Filipino
on account of the fact that she was a foundling. 62 Elamparo claimed that international law does not confer
natural-born status and Filipino citizenship on foundlings. 63 Following this line of reasoning, petitioner is not
qualified to apply for reacquisition of Filipino citizenship under R.A. No. 9225 for she is not a natural-born
Filipino citizen to begin with. 64 Even assuming arguendo that petitioner was a natural-born Filipino, she is
deemed to have lost that status when she became a naturalized American citizen. 65 According to
Elamparo, natural-born citizenship must be continuous from birth. 66
On the matter of petitioner's residency, Elamparo pointed out that petitioner was bound by the sworn
declaration she made in her 2012 COC for Senator wherein she indicated that she had resided in the
country for only six ( 6) years and six ( 6) months as of May 2013 Elections. Elamparo likewise insisted that
assuming arguendo that petitioner is qualified to regain her natural-born status under R.A. No. 9225, she
still fell short of the ten-year residency requirement of the Constitution as her residence could only be
counted at the earliest from July 2006, when she reacquired Philippine citizenship under the said Act. Also
on the assumption that petitioner is qualified to reacquire lost Philippine Citizenship, Elamparo is of the
belief that she failed to reestablish her domicile in the Philippines.67
Petitioner seasonably filed her Answer wherein she countered that:
(1) the COMELEC did not have jurisdiction over Elamparo's petition as it was actually a petition
for quo warranto which could only be filed if Grace Poe wins in the Presidential elections, and that
the Department of Justice (DOJ) has primary jurisdiction to revoke the BI's July 18, 2006 Order;
(2) the petition failed to state a cause of action because it did not contain allegations which, if
hypothetically admitted, would make false the statement in her COC that she is a natural-born
Filipino citizen nor was there any allegation that there was a willful or deliberate intent to
misrepresent on her part;
(3) she did not make any material misrepresentation in the COC regarding her citizenship and
residency qualifications for:
a. the 1934 Constitutional Convention deliberations show that foundlings were considered
citizens;
b. foundlings are presumed under international law to have been born of citizens of the
place where they are found;
c. she reacquired her natural-born Philippine citizenship under the provisions of R.A. No.
9225;
d. she executed a sworn renunciation of her American citizenship prior to the filing of her
COC for President in the May 9, 2016 Elections and that the same is in full force and effect
and has not been withdrawn or recanted;
e. the burden was on Elamparo in proving that she did not possess natural-born status;
f. residence is a matter of evidence and that she reestablished her domicile in the
Philippines as early as May 24, 2005;
g. she could reestablish residence even before she reacquired natural-born citizenship
under R.A. No. 9225;
h. statement regarding the period of residence in her 2012 COC for Senator was an honest
mistake, not binding and should give way to evidence on her true date of reacquisition of
domicile;
i. Elamparo's petition is merely an action to usurp the sovereign right of the Filipino people
to decide a purely political question, that is, should she serve as the country's next leader. 68
After the parties submitted their respective Memoranda, the petition was deemed submitted for resolution.
On 1 December 2015, the COMELEC Second Division promulgated a Resolution finding that petitioner's
COC, filed for the purpose of running for the President of the Republic of the Philippines in the 9 May 2016
National and Local Elections, contained material representations which are false. The fallo of the aforesaid
Resolution reads:
WHEREFORE, in view of all the foregoing considerations, the instant Petition to Deny Due Course to or
Cancel Certificate of Candidacy is hereby GRANTED. Accordingly, the Certificate of Candidacy for
President of the Republic of the Philippines in the May 9, 2016 National and Local Elections filed by
respondent Mary Grace Natividad Sonora Poe Llamanzares is hereby CANCELLED.69
Motion for Reconsideration of the 1 December 2015 Resolution was filed by petitioner which the
COMELEC En Banc resolved in its 23 December 2015 Resolution by denying the same.70
Origin of Petition for Certiorari in G.R. Nos. 221698-700
This case stemmed from three (3) separate petitions filed by Francisco S. Tatad (Tatad), Antonio P.
Contreras (Contreras) and Amado D. Valdez (Valdez) against petitioner before the COMELEC which were
consolidated and raffled to its First Division.
In his petition to disqualify petitioner under Rule 25 of the COMELEC Rules of Procedure, 71 docketed as
SPA No. 15-002 (DC), Tatad alleged that petitioner lacks the requisite residency and citizenship to qualify
her for the Presidency.72
Tatad theorized that since the Philippines adheres to the principle of jus sanguinis, persons of unknown
parentage, particularly foundlings, cannot be considered natural-born Filipino citizens since blood
relationship is determinative of natural-born status. 73 Tatad invoked the rule of statutory construction that
what is not included is excluded. He averred that the fact that foundlings were not expressly included in the
categories of citizens in the 193 5 Constitution is indicative of the framers' intent to exclude
them.74 Therefore, the burden lies on petitioner to prove that she is a natural-born citizen. 75
Neither can petitioner seek refuge under international conventions or treaties to support her claim that
foundlings have a nationality.76 According to Tatad, international conventions and treaties are not self-
executory and that local legislations are necessary in order to give effect to treaty obligations assumed by
the Philippines.77 He also stressed that there is no standard state practice that automatically confers
natural-born status to foundlings.78
Similar to Elamparo's argument, Tatad claimed that petitioner cannot avail of the option to reacquire
Philippine citizenship under R.A. No. 9225 because it only applies to former natural-born citizens and
petitioner was not as she was a foundling.79
Referring to petitioner's COC for Senator, Tatad concluded that she did not comply with the ten (10) year
residency requirement.80 Tatad opined that petitioner acquired her domicile in Quezon City only from the
time she renounced her American citizenship which was sometime in 2010 or 2011. 81 Additionally, Tatad
questioned petitioner's lack of intention to abandon her U.S. domicile as evinced by the fact that her
husband stayed thereat and her frequent trips to the U.S.82
In support of his petition to deny due course or cancel the COC of petitioner, docketed as SPA No. 15-139
(DC), Valdez alleged that her repatriation under R.A. No. 9225 did not bestow upon her the status of a
natural-born citizen.83 He advanced the view that former natural-born citizens who are repatriated under the
said Act reacquires only their Philippine citizenship and will not revert to their original status as natural-born
citizens.84
He further argued that petitioner's own admission in her COC for Senator that she had only been a resident
of the Philippines for at least six (6) years and six (6) months prior to the 13 May 2013 Elections operates
against her. Valdez rejected petitioner's claim that she could have validly reestablished her domicile in the
Philippines prior to her reacquisition of Philippine citizenship. In effect, his position was that petitioner did
not meet the ten (10) year residency requirement for President.
Unlike the previous COMELEC cases filed against petitioner, Contreras' petition, 85 docketed as SPA No.
15-007 (DC), limited the attack to the residency issue. He claimed that petitioner's 2015 COC for President
should be cancelled on the ground that she did not possess the ten-year period of residency required for
said candidacy and that she made false entry in her COC when she stated that she is a legal resident of
the Philippines for ten (10) years and eleven (11) months by 9 May 2016. 86 Contreras contended that the
reckoning period for computing petitioner's residency in the Philippines should be from 18 July 2006, the
date when her petition to reacquire Philippine citizenship was approved by the BI. 87 He asserted that
petitioner's physical presence in the country before 18 July 2006 could not be valid evidence of
reacquisition of her Philippine domicile since she was then living here as an American citizen and as such,
she was governed by the Philippine immigration laws.88
In her defense, petitioner raised the following arguments:
First, Tatad's petition should be dismissed outright for failure to state a cause of action. His petition did not
invoke grounds proper for a disqualification case as enumerated under Sections 12 and 68 of the Omnibus
Election Code.89 Instead, Tatad completely relied on the alleged lack of residency and natural-born status
of petitioner which are not among the recognized grounds for the disqualification of a candidate to an
elective office.90
Second, the petitions filed against her are basically petitions for quo warranto as they focus on establishing
her ineligibility for the Presidency.91 A petition for quo warranto falls within the exclusive jurisdiction of the
Presidential Electoral Tribunal (PET) and not the COMELEC.92
Third, the burden to prove that she is not a natural-born Filipino citizen is on the respondents. 93 Otherwise
stated, she has a presumption in her favor that she is a natural-born citizen of this country.
Fourth, customary international law dictates that foundlings are entitled to a nationality and are presumed
to be citizens of the country where they are found. 94 Consequently, the petitioner is considered as a
natural-born citizen of the Philippines.95
Fifth, she claimed that as a natural-born citizen, she has every right to be repatriated under R.A. No. 9225
or the right to reacquire her natural-born status. 96 Moreover, the official acts of the Philippine Government
enjoy the presumption of regularity, to wit: the issuance of the 18 July 2006 Order of the BI declaring her as
natural-born citizen, her appointment as MTRCB Chair and the issuance of the decree of adoption of San
Juan RTC.97 She believed that all these acts reinforced her position that she is a natural-born citizen of the
Philippines.98
Sixth, she maintained that as early as the first quarter of 2005, she started reestablishing her domicile of
choice in the Philippines as demonstrated by her children's resettlement and schooling in the country,
purchase of a condominium unit in San Juan City and the construction of their family home in Corinthian
Hills.99
Seventh, she insisted that she could legally reestablish her domicile of choice in the Philippines even
before she renounced her American citizenship as long as the three determinants for a change of domicile
are complied with.100 She reasoned out that there was no requirement that renunciation of foreign
citizenship is a prerequisite for the acquisition of a new domicile of choice. 101
Eighth, she reiterated that the period appearing in the residency portion of her COC for Senator was a
mistake made in good faith.102
In a Resolution103 promulgated on 11 December 2015, the COMELEC First Division ruled that petitioner is
not a natural-born citizen, that she failed to complete the ten (10) year residency requirement, and that she
committed material misrepresentation in her COC when she declared therein that she has been a resident
of the Philippines for a period of ten (10) years and eleven (11) months as of the day of the elections on 9
May 2016. The COMELEC First Division concluded that she is not qualified for the elective position of
President of the Republic of the Philippines. The dispositive portion of said Resolution reads:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES,
to GRANTthe Petitions and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD SONORA
POE-LLAMANZARES for the elective position of President of the Republic of the Philippines in connection
with the 9 May 2016 Synchronized Local and National Elections.

Petitioner filed a motion for reconsideration seeking a reversal of the COMELEC First Division's Resolution.
On 23 December 2015, the COMELEC En Banc issued a Resolution denying petitioner's motion for
reconsideration.
Alarmed by the adverse rulings of the COMELEC, petitioner instituted the present petitions
for certiorari with urgent prayer for the issuance of an ex parte temporary restraining order/status quo
ante order and/or writ of preliminary injunction. On 28 December 2015, temporary restraining orders were
issued by the Court enjoining the COMELEC and its representatives from implementing the assailed
COMELEC Resolutions until further orders from the Court. The Court also ordered the consolidation of the
two petitions filed by petitioner in its Resolution of 12 January 2016. Thereafter, oral arguments were held
in these cases.
The Court GRANTS the petition of Mary Grace Natividad S. Poe-Llamanzares and to ANNUL and SET
ASIDE the:
1. Resolution dated 1 December 2015 rendered through its Second Division, in SPA No. 15-001
(DC), entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares.
2. Resolution dated 11 December 2015, rendered through its First Division, in the consolidated
cases SPA No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad
Sonora Poe-Llamanzares, respondent; SPA No. 15-007 (DC) entitled Antonio P. Contreras,
petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; and SPA No. 15-139
(DC) entitled Amado D. Valdez, petitioner, v. Mary Grace Natividad Sonora Poe-Llamanzares,
respondent.
3. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 1 December
2015 Resolution of the Second Division.
4. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 11 December
2015 Resolution of the First Division.
The procedure and the conclusions from which the questioned Resolutions emanated are tainted with
grave abuse of discretion amounting to lack of jurisdiction. The petitioner is a QUALIFIED CANDIDATE for
President in the 9 May 2016 National Elections.
The issue before the COMELEC is whether or not the COC of petitioner should be denied due course or
cancelled "on the exclusive ground" that she made in the certificate a false material representation. The
exclusivity of the ground should hedge in the discretion of the COMELEC and restrain it from going into the
issue of the qualifications of the candidate for the position, if, as in this case, such issue is yet undecided or
undetermined by the proper authority. The COMELEC cannot itself, in the same cancellation case, decide
the qualification or lack thereof of the candidate.
We rely, first of all, on the Constitution of our Republic, particularly its provisions in Article IX, C, Section 2:
Section 2. The Commission on Elections shall exercise the following powers and functions:

(1) Enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall.

(2) Exercise exclusive original jurisdiction over all contests relating to the elections,
returns, and qualifications of all elective regional, provincial, and city officials, and
appellate jurisdiction over all contests involving elective municipal officials decided by
trial courts of general jurisdiction, or involving elective barangay officials decided by trial
courts of limited jurisdiction.

Decisions, final orders, or rulings of the Commission on election contests involving

elective municipal and barangay offices shall be final, executory, and not appealable.

(3) Decide, except those involving the right to vote, all questions affecting elections,
including determination of the number and location of polling places, appointment of
election officials and inspectors, and registration of voters.

(4) Deputize, with the concurrence of the President, law enforcement agencies and
instrumentalities of the Government, including the Armed Forces of the Philippines, for
the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible
elections.

(5) Register, after sufficient publication, political parties, organizations, or coalitions

which, in addition to other requirements, must present their platform or program of
government; and accredit citizens' arms of the Commission on Elections. Religious
denominations and sects shall not be registered. Those which seek to achieve their
 goals through violence or unlawful means, or refuse to uphold and adhere to this
Constitution, or which are supported by any foreign government shall likewise be
refused registration.

Financial contributions from foreign governments and their agencies to political parties,
organizations, coalitions, or candidates related to elections constitute interference in
national affairs, and, when accepted, shall be an additional ground for the cancellation
of their registration with the Commission, in addition to other penalties that may be
prescribed by law.

(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion
or exclusion of voters; investigate and, where appropriate, prosecute cases of
violations of election laws, including acts or omissions constituting election frauds,
offenses, and malpractices.

(7) Recommend to the Congress effective measures to minimize election spending,

including limitation of places where propaganda materials shall be posted, and to
prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance
candidacies.

(8) Recommend to the President the removal of any officer or employee it has
deputized, or the imposition of any other disciplinary action, for violation or disregard of,
or disobedience to its directive, order, or decision.

(9) Submit to the President and the Congress a comprehensive report on the conduct
of each election, plebiscite, initiative, referendum, or recall.

Not any one of the enumerated powers approximate the exactitude of the provisions of Article VI, Section
17 of the same basic law stating that:
The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be
the sole judge of all contests relating to the election, returns, and qualifications of their respective
Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be
Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be
Members of the Senate or the House of Representatives, as the case may be, who shall be chosen
on the basis of proportional representation from the political parties and the parties or organizations
registered under the party-list system represented therein. The senior Justice in the Electoral
Tribunal shall be its Chairman.
or of the last paragraph of Article VII, Section 4 which provides that:
The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election,
returns, and qualifications of the President or Vice-President, and may promulgate its rules for the
purpose.
The tribunals which have jurisdiction over the question of the qualifications of the President, the Vice-
President, Senators and the Members of the House of Representatives was made clear by the
Constitution. There is no such provision for candidates for these positions.
Can the COMELEC be such judge?
The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v. Commission on Elections, 104 which
was affirmatively cited in the En Banc decision in Fermin v. COMELEC105 is our guide. The citation
in Fermin reads:
Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates, the
COMELEC amended its rules on February 15, 1993 so as to provide in Rule 25 § 1, the following:
 Grounds for disqualification. - Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by existing law or
who commits any act declared by law to be grounds for disqualification may be
disqualified from continuing as a candidate.

The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied
by a mere rule. Such an act is equivalent to the creation of a cause of action which is a
substantive matter which the COMELEC, in the exercise of its rule-making power under Art. IX,
A, §6 of the Constitution, cannot do it. It is noteworthy that the Constitution withholds from the
COMELEC even the power to decide cases involving the right to vote, which essentially
involves an inquiry into qualifications based on age, residence and citizenship of voters. [Art.
IX, C, §2(3)]

The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for
disqualification is contrary to the evident intention of the law. For not only in their grounds but
also in their consequences are proceedings for "disqualification" different from those for a
declaration of "ineligibility." "Disqualification" proceedings, as already stated, are based on
grounds specified in § 12 and §68 of the Omnibus Election Code and in §40 of the Local
Government Code and are for the purpose of barring an individual from becoming a candidate
or from continuing as a candidate for public office. In a word, their purpose is to eliminate a
candidate from the race either from the start or during its progress. "Ineligibility," on the other
hand, refers to the lack of the qualifications prescribed in the Constitution or the statutes
for holding public office and the purpose of the proceedings for declaration of ineligibility is
to remove the incumbent from office.

Consequently, that an individual possesses the qualifications for a public office does not imply
that he is not disqualified from becoming a candidate or continuing as a candidate for a public
office and vice versa. We have this sort of dichotomy in our Naturalization Law. (C.A. No. 473)
That an alien has the qualifications prescribed in §2 of the Law does not imply that he does not
suffer from any of [the] disqualifications provided in §4.

Before we get derailed by the distinction as to grounds and the consequences of the respective
proceedings, the importance of the opinion is in its statement that "the lack of provision for declaring the
ineligibility of candidates, however, cannot be supplied by a mere rule". Justice Mendoza lectured
in Romualdez-Marcos that:
Three reasons may be cited to explain the absence of an authorized proceeding for determining before
election the qualifications of a candidate.

First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for
determining his eligibility for the office. In contrast, whether an individual should be disqualified
as a candidate for acts constituting election offenses (e.g., vote buying, over spending,
commission of prohibited acts) is a prejudicial question which should be determined lest he
wins because of the very acts for which his disqualification is being sought. That is why it is
provided that if the grounds for disqualification are established, a candidate will not be voted
for; if he has been voted for, the votes in his favor will not be counted; and if for some reason
he has been voted for and he has won, either he will not be proclaimed or his proclamation will
be set aside.

Second is the fact that the determination of a candidates' eligibility, e.g., his citizenship or, as in
this case, his domicile, may take a long time to make, extending beyond the beginning of the
term of the office. This is amply demonstrated in the companion case (G.R. No.
120265, Agapito A. Aquino v. COMELEC) where the determination of Aquino's residence was
still pending in the COMELEC even after the elections of May 8, 1995. This is contrary to the
summary character proceedings relating to certificates of candidacy. That is why the law
 makes the receipt of certificates of candidacy a ministerial duty of the COMELEC and its
officers. The law is satisfied if candidates state in their certificates of candidacy that they are
eligible for the position which they seek to fill, leaving the determination of their qualifications to
be made after the election and only in the event they are elected. Only in cases involving
charges of false representations made in certificates of candidacy is the COMELEC given
jurisdiction.

Third is the policy underlying the prohibition against pre-proclamation cases in elections for
President, Vice President, Senators and members of the House of Representatives. (R.A. No.
7166, § 15) The purpose is to preserve the prerogatives of the House of Representatives
Electoral Tribunal and the other Tribunals as "sole judges" under the Constitution of
the election, returns and qualifications of members of Congress of the President and Vice
President, as the case may be.106

To be sure, the authoritativeness of the Romualdez pronouncements as reiterated in Fermin, led to the
amendment through COMELEC Resolution No. 9523, on 25 September 2012 of its Rule 25. This, the 15
February1993 version of Rule 25, which states that:
Grounds for disqualification. -Any candidate who does not possess all the qualifications of a candidate as
provided for by the Constitution or by existing law or who commits any act declared by law to be grounds
for disqualification may be disqualified from continuing as a candidate. 107

was in the 2012 rendition, drastically changed to:

Grounds. - Any candidate who, in action or protest in which he is a party, is declared by final decision of a
competent court, guilty of, or found by the Commission to be suffering from any disqualification provided by
law or the Constitution.

A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny to or Cancel a

Certificate of Candidacy or Petition to Declare a Candidate as a Nuisance Candidate, or a
combination thereof, shall be summarily dismissed.

Clearly, the amendment done in 2012 is an acceptance of the reality of absence of an authorized
proceeding for determining before election the qualifications of candidate. Such that, as presently required,
to disqualify a candidate there must be a declaration by a final judgment of a competent court that the
candidate sought to be disqualified "is guilty of or found by the Commission to be suffering from any
disqualification provided by law or the Constitution."
Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23 are flipsides of one to the
other. Both do not allow, are not authorizations, are not vestment of jurisdiction, for the COMELEC to
determine the qualification of a candidate. The facts of qualification must beforehand be established in a
prior proceeding before an authority properly vested with jurisdiction. The prior determination of
qualification may be by statute, by executive order or by a judgment of a competent court or tribunal.
If a candidate cannot be disqualified without a prior finding that he or she is suffering from a disqualification
"provided by law or the Constitution," neither can the certificate of candidacy be cancelled or denied due
course on grounds of false representations regarding his or her qualifications, without a prior authoritative
finding that he or she is not qualified, such prior authority being the necessary measure by which the falsity
of the representation can be found. The only exception that can be conceded are self-evident facts of
unquestioned or unquestionable veracity and judicial confessions. Such are, anyway, bases equivalent to
prior decisions against which the falsity of representation can be determined.
The need for a predicate finding or final pronouncement in a proceeding under Rule 23 that deals with, as
in this case, alleged false representations regarding the candidate's citizenship and residence, forced the
COMELEC to rule essentially that since foundlings 108 are not mentioned in the enumeration of citizens
under the 1935 Constitution,109 they then cannot be citizens. As the COMELEC stated in oral arguments,
when petitioner admitted that she is a foundling, she said it all. This borders on bigotry. Oddly, in an effort at
tolerance, the COMELEC, after saying that it cannot rule that herein petitioner possesses blood relationship
with a Filipino citizen when "it is certain that such relationship is indemonstrable," proceeded to say that
"she now has the burden to present evidence to prove her natural filiation with a Filipino parent."
The fact is that petitioner's blood relationship with a Filipino citizen is DEMONSTRABLE.
At the outset, it must be noted that presumptions regarding paternity is neither unknown nor unaccepted in
Philippine Law. The Family Code of the Philippines has a whole chapter on Paternity and Filiation. 110 That
said, there is more than sufficient evider1ce that petitioner has Filipino parents and is therefore a natural-
born Filipino. Parenthetically, the burden of proof was on private respondents to show that petitioner is not
a Filipino citizen. The private respondents should have shown that both of petitioner's parents were aliens.
Her admission that she is a foundling did not shift the burden to her because such status did not exclude
the possibility that her parents were Filipinos, especially as in this case where there is a high probability, if
not certainty, that her parents are Filipinos.
The factual issue is not who the parents of petitioner are, as their identities are unknown, but whether such
parents are Filipinos. Under Section 4, Rule 128:
Sect. 4. Relevancy, collateral matters - Evidence must have such a relation to the fact in issue as to induce
belief in its existence or no-existence. Evidence on collateral matters shall not be allowed, except when it
tends in any reasonable degree to establish the probability of improbability of the fact in issue.

The Solicitor General offered official statistics from the Philippine Statistics Authority (PSA) 111 that from
1965 to 1975, the total number of foreigners born in the Philippines was 15,986 while the total number of
Filipinos born in the country was 10,558,278. The statistical probability that any child born in the Philippines
in that decade is natural-born Filipino was 99.83%. For her part, petitioner presented census statistics for
Iloilo Province for 1960 and 1970, also from the PSA. In 1960, there were 962,532 Filipinos and 4,734
foreigners in the province; 99.62% of the population were Filipinos. In 1970, the figures were 1,162,669
Filipinos and 5,304 foreigners, or 99.55%. Also presented were figures for the child producing ages (15-49).
In 1960, there were 230,528 female Filipinos as against 730 female foreigners or 99.68%. In the same
year, there were 210,349 Filipino males and 886 male aliens, or 99.58%. In 1970, there were 270,299
Filipino females versus 1, 190 female aliens, or 99.56%. That same year, there were 245,740 Filipino
males as against only 1,165 male aliens or 99.53%. COMELEC did not dispute these figures. Notably,
Commissioner Arthur Lim admitted, during the oral arguments, that at the time petitioner was found in
1968, the majority of the population in Iloilo was Filipino.112
Other circumstantial evidence of the nationality of petitioner's parents are the fact that she was abandoned
as an infant in a Roman Catholic Church in Iloilo City. She also has typical Filipino features: height, flat
1âwphi1

nasal bridge, straight black hair, almond shaped eyes and an oval face.
There is a disputable presumption that things have happened according to the ordinary course of nature
and the ordinary habits of life. 113 All of the foregoing evidence, that a person with typical Filipino features is
abandoned in Catholic Church in a municipality where the population of the Philippines is overwhelmingly
Filipinos such that there would be more than a 99% chance that a child born in the province would be a
Filipino, would indicate more than ample probability if not statistical certainty, that petitioner's parents are
Filipinos. That probability and the evidence on which it is based are admissible under Rule 128, Section 4
of the Revised Rules on Evidence.
To assume otherwise is to accept the absurd, if not the virtually impossible, as the norm. In the words of the
Solicitor General:
Second. It is contrary to common sense because foreigners do not come to the Philippines so they can get
pregnant and leave their newborn babies behind. We do not face a situation where the probability is such
that every foundling would have a 50% chance of being a Filipino and a 50% chance of being a foreigner.
We need to frame our questions properly. What are the chances that the parents of anyone born in the
Philippines would be foreigners? Almost zero. What are the chances that the parents of anyone born in the
Philippines would be Filipinos? 99.9%.
 According to the Philippine Statistics Authority, from 2010 to 2014, on a yearly average, there
were 1,766,046 children born in the Philippines to Filipino parents, as opposed to 1,301
children in the Philippines of foreign parents. Thus, for that sample period, the ratio of non-
Filipino children to natural born Filipino children is 1:1357. This means that the statistical
probability that any child born in the Philippines would be a natural born Filipino is 99.93%.

From 1965 to 1975, the total number of foreigners born in the Philippines is 15,986 while the
total number of Filipinos born in the Philippines is 15,558,278. For this period, the ratio of non-
Filipino children is 1:661. This means that the statistical probability that any child born in the
Philippines on that decade would be a natural born Filipino is 99.83%.

We can invite statisticians and social anthropologists to crunch the numbers for us, but I am
confident that the statistical probability that a child born in the Philippines would be a natural
born Filipino will not be affected by whether or not the parents are known. If at all, the likelihood
that a foundling would have a Filipino parent might even be higher than 99.9%. Filipinos
abandon their children out of poverty or perhaps, shame. We do not imagine foreigners
abandoning their children here in the Philippines thinking those infants would have better
economic opportunities or believing that this country is a tropical paradise suitable for raising
abandoned children. I certainly doubt whether a foreign couple has ever considered their child
excess baggage that is best left behind.

To deny full Filipino citizenship to all foundlings and render them stateless just because there
may be a theoretical chance that one among the thousands of these foundlings might be the
child of not just one, but two, foreigners is downright discriminatory, irrational, and unjust. It just
doesn't make any sense. Given the statistical certainty - 99.9% - that any child born in the
Philippines would be a natural born citizen, a decision denying foundlings such status is
effectively a denial of their birthright. There is no reason why this Honorable Court should use
an improbable hypothetical to sacrifice the fundamental political rights of an entire class of
human beings. Your Honor, constitutional interpretation and the use of common sense are not
separate disciplines.

As a matter of law, foundlings are as a class, natural-born citizens. While the 1935 Constitution's
enumeration is silent as to foundlings, there is no restrictive language which would definitely exclude
foundlings either. Because of silence and ambiguity in the enumeration with respect to foundlings, there is
a need to examine the intent of the framers. In Nitafan v. Commissioner of Internal Revenue, 114 this Court
held that:
The ascertainment of that intent is but in keeping with the fundamental principle of constitutional
construction that the intent of the framers of the organic law and of the people adopting it should be
given effect. The primary task in constitutional construction is to ascertain and thereafter assure the
realization of the purpose of the framers and of the people in the adoption of the Constitution. It
may also be safely assumed that the people in ratifying the Constitution were guided mainly by the
explanation offered by the framers.115
As pointed out by petitioner as well as the Solicitor General, the deliberations of the 1934 Constitutional
Convention show that the framers intended foundlings to be covered by the enumeration. The following
exchange is recorded:
Sr. Rafols: For an amendment. I propose that after subsection 2, the following is inserted: "The natural
children of a foreign father and a Filipino mother not recognized by the father.

xxxx

President:
[We] would like to request a clarification from the proponent of the amendment. The gentleman
refers to natural children or to any kind of illegitimate children?
Sr. Rafols:
To all kinds of illegitimate children. It also includes natural children of unknown
parentage, natural or illegitimate children of unknown parents.

Sr. Montinola:
For clarification. The gentleman said "of unknown parents." Current codes consider them
Filipino, that is, I refer to the Spanish Code wherein all children of unknown parentage born in
Spanish territory are considered Spaniards, because the presumption is that a child of
unknown parentage is the son of a Spaniard. This may be applied in the Philippines in that a
child of unknown parentage born in the Philippines is deemed to be Filipino, and there is no
need ...

Sr. Rafols:
There is a need, because we are relating the conditions that are [required] to be Filipino.

Sr. Montinola:
But that is the interpretation of the law, therefore, there is no [more] need for amendment.

Sr. Rafols:
The amendment should read thus:
"Natural or illegitimate of a foreign father and a Filipino mother recognized by one, or the
children of unknown parentage."

Sr. Briones:
The amendment [should] mean children born in the Philippines of unknown parentage.

Sr. Rafols:
The son of a Filipina to a Foreigner, although this [person] does not recognize the child, is not
unknown.

President:
Does the gentleman accept the amendment or not?

Sr. Rafols:
I do not accept the amendment because the amendment would exclude the children of a
Filipina with a foreigner who does not recognize the child. Their parentage is not unknown and
I think those of overseas Filipino mother and father [whom the latter] does not recognize,
should also be considered as Filipinos.

President:
The question in order is the amendment to the amendment from the Gentleman from Cebu, Mr.
Briones.

Sr. Busion:
Mr. President, don't you think it would be better to leave this matter in the hands of the
Legislature?

Sr. Roxas:
Mr. President, my humble opinion is that these cases are few and far in between, that the
constitution need [not] refer to them. By international law the principle that children or people
born in a country of unknown parents are citizens in this nation is recognized, and it is not
necessary to include a provision on the subject exhaustively. 116
Though the Rafols amendment was not carried out, it was not because there was any objection to the
notion that persons of "unknown parentage" are not citizens but only because their number was not enough
to merit specific mention. Such was the account, 117 cited by petitioner, of delegate and constitution law
author Jose Aruego who said:
During the debates on this provision, Delegate Rafols presented an amendment to include as
Filipino citizens the illegitimate children with a foreign father of a mother who was a citizen of the
Philippines, and also foundlings; but this amendment was defeated primarily because the
Convention believed that the cases, being too few to warrant the inclusion of a provision in the
Constitution to apply to them, should be governed by statutory legislation. Moreover, it was believed
that the rules of international law were already clear to the effect that illegitimate children followed
the citizenship of the mother, and that foundlings followed the nationality of the place where they
were found, thereby making unnecessary the inclusion in the Constitution of the proposed
amendment.
This explanation was likewise the position of the Solicitor General during the 16 February 2016 Oral
Arguments:
We all know that the Rafols proposal was rejected. But note that what was declined was the proposal for a
textual and explicit recognition of foundlings as Filipinos. And so, the way to explain the constitutional
silence is by saying that it was the view of Montinola and Roxas which prevailed that there is no more need
to expressly declare foundlings as Filipinos.

Obviously, it doesn't matter whether Montinola's or Roxas' views were legally correct. Framers
of a constitution can constitutionalize rules based on assumptions that are imperfect or even
wrong. They can even overturn existing rules. This is basic. What matters here is that
Montinola and Roxas were able to convince their colleagues in the convention that there is no
more need to expressly declare foundlings as Filipinos because they are already impliedly so
recognized.

In other words, the constitutional silence is fully explained in terms of linguistic efficiency and
the avoidance of redundancy. The policy is clear: it is to recognize foundlings, as a class, as
Filipinos under Art. IV, Section 1 (3) of the 1935 Constitution. This inclusive policy is carried
over into the 1973 and 1987 Constitution. It is appropriate to invoke a famous scholar as he
was paraphrased by Chief Justice Fernando: the constitution is not silently silent, it is silently
vocal. 118

The Solicitor General makes the further point that the framers "worked to create a just and humane
society," that "they were reasonable patriots and that it would be unfair to impute upon them a
discriminatory intent against foundlings." He exhorts that, given the grave implications of the argument that
foundlings are not natural-born Filipinos, the Court must search the records of the 1935, 1973 and 1987
Constitutions "for an express intention to deny foundlings the status of Filipinos. The burden is on those
who wish to use the constitution to discriminate against foundlings to show that the constitution really
intended to take this path to the dark side and inflict this across the board marginalization."
We find no such intent or language permitting discrimination against foundlings. On the contrary, all three
Constitutions guarantee the basic right to equal protection of the laws. All exhort the State to render social
justice. Of special consideration are several provisions in the present charter: Article II, Section 11 which
provides that the "State values the dignity of every human person and guarantees full respect for human
rights," Article XIII, Section 1 which mandates Congress to "give highest priority to the enactment of
measures that protect and enhance the right of all the people to human dignity, reduce social, economic,
and political inequalities x x x" and Article XV, Section 3 which requires the State to defend 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." Certainly, these
provisions contradict an intent to discriminate against foundlings on account of their unfortunate status.
Domestic laws on adoption also support the principle that foundlings are Filipinos. These laws do not
provide that adoption confers citizenship upon the adoptee. Rather, the adoptee must be a Filipino in the
first place to be adopted. The most basic of such laws is Article 15 of the Civil Code which provides that
"[l]aws relating to family rights, duties, status, conditions, legal capacity of persons are binding on citizens
of the Philippines even though living abroad." Adoption deals with status, and a Philippine adoption court
will have jurisdiction only if the adoptee is a Filipino. In Ellis and Ellis v. Republic,119 a child left by an
unidentified mother was sought to be adopted by aliens. This Court said:
In this connection, it should be noted that this is a proceedings in rem, which no court may entertain unless
it has jurisdiction, not only over the subject matter of the case and over the parties, but also over the
res, which is the personal status of Baby Rose as well as that of petitioners herein. Our Civil Code (Art. 15)
adheres to the theory that jurisdiction over the status of a natural person is determined by the latter's
nationality. Pursuant to this theory, we have jurisdiction over the status of Baby Rose, she being a citizen of
the Philippines, but not over the status of the petitioners, who are foreigners.120 (Underlining supplied)

Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing the Rules to Govern the Inter-
Country Adoption of Filipino Children and For Other Purposes" (otherwise known as the "Inter-Country
Adoption Act of 1995"), R.A. No. 8552, entitled "An Act Establishing the Rules and Policies on the Adoption
of Filipino Children and For Other Purposes" (otherwise known as the Domestic Adoption Act of 1998) and
this Court's A.M. No. 02-6-02-SC or the "Rule on Adoption," all expressly refer to "Filipino children" and
include foundlings as among Filipino children who may be adopted.
It has been argued that the process to determine that the child is a foundling leading to the issuance of a
foundling certificate under these laws and the issuance of said certificate are acts to acquire or perfect
Philippine citizenship which make the foundling a naturalized Filipino at best. This is erroneous. Under
Article IV, Section 2 "Natural-born citizens are those who are citizens of the Philippines from birth without
having to perform any act to acquire or perfect their Philippine citizenship." In the first place, "having to
perform an act" means that the act must be personally done by the citizen. In this instance, the
determination of foundling status is done not by the child but by the authorities. 121 Secondly, the object of
the process is the determination of the whereabouts of the parents, not the citizenship of the child. Lastly,
the process is certainly not analogous to naturalization proceedings to acquire Philippine citizenship, or the
election of such citizenship by one born of an alien father and a Filipino mother under the 1935
Constitution, which is an act to perfect it.
In this instance, such issue is moot because there is no dispute that petitioner is a foundling, as evidenced
by a Foundling Certificate issued in her favor. 122 The Decree of Adoption issued on 13 May 1974, which
approved petitioner's adoption by Jesusa Sonora Poe and Ronald Allan Kelley Poe, expressly refers to
Emiliano and his wife, Rosario Militar, as her "foundling parents," hence effectively affirming petitioner's
status as a foundling.123
Foundlings are likewise citizens under international law. Under the 1987 Constitution, an international law
can become part of the sphere of domestic law either by transformation or incorporation. The
transformation method requires that an international law be transformed into a domestic law through a
constitutional mechanism such as local legislation. 124 On the other hand, generally accepted principles of
international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the land
even if they do not derive from treaty obligations. Generally accepted principles of international law include
international custom as evidence of a general practice accepted as law, and general principles of law
recognized by civilized nations.125 International customary rules are accepted as binding as a result from
the combination of two elements: the established, widespread, and consistent practice on the part of
States; and a psychological element known as the opinionjuris sive necessitates (opinion as to law or
necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the
existence of a rule of law requiring it. 126"General principles of law recognized by civilized nations" are
principles "established by a process of reasoning" or judicial logic, based on principles which are "basic to
legal systems generally,"127 such as "general principles of equity, i.e., the general principles of fairness and
justice," and the "general principle against discrimination" which is embodied in the "Universal Declaration
of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International
Convention on the Elimination of All Forms of Racial Discrimination, the Convention Against Discrimination
in Education, the Convention (No. 111) Concerning Discrimination in Respect of Employment and
Occupation."128 These are the same core principles which underlie the Philippine Constitution itself, as
embodied in the due process and equal protection clauses of the Bill of Rights. 129
Universal Declaration of Human Rights ("UDHR") has been interpreted by this Court as part of the
generally accepted principles of international law and binding on the State. 130 Article 15 thereof states:
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his
nationality.
The Philippines has also ratified the UN Convention on the Rights of the Child (UNCRC). Article 7 of the
UNCRC imposes the following obligations on our country:
Article 7

1. The child shall be registered immediately after birth and shall have the right from birth to a
name, the right to acquire a nationality and as far as possible, the right to know and be cared
for by his or her parents.

2. States Parties shall ensure the implementation of these rights in accordance with their
national law and their obligations under the relevant international instruments in this field, in
particular where the child would otherwise be stateless.

In 1986, the country also ratified the 1966 International Covenant on Civil and Political Rights (ICCPR).
Article 24 thereof provide for the right of every child "to acquire a nationality:"
Article 24

1. Every child shall have, without any discrimination as to race, colour, sex, language, religion,
national or social origin, property or birth, the right, to such measures of protection as are
required by his status as a minor, on the part of his family, society and the State.

2. Every child shall be registered immediately after birth and shall have a name.

3. Every child has the right to acquire a nationality.

The common thread of the UDHR, UNCRC and ICCPR is to obligate the Philippines to grant nationality
from birth and ensure that no child is stateless. This grant of nationality must be at the time of birth, and it
cannot be accomplished by the application of our present naturalization laws, Commonwealth Act No. 473,
as amended, and R.A. No. 9139, both of which require the applicant to be at least eighteen (18) years old.
The principles found in two conventions, while yet unratified by the Philippines, are generally accepted
principles of international law. The first is Article 14 of the 1930 Hague Convention on Certain Questions
Relating to the Conflict of Nationality Laws under which a foundling is presumed to have the "nationality of
the country of birth," to wit:
Article 14

A child whose parents are both unknown shall have the nationality of the country of birth. If the
child's parentage is established, its nationality shall be determined by the rules applicable in
cases where the parentage is known.

A foundling is, until the contrary is proved, presumed to have been born on the territory of the
State in which it was found. (Underlining supplied)

The second is the principle that a foundling is presumed born of citizens of the country where he is found,
contained in Article 2 of the 1961 United Nations Convention on the Reduction of Statelessness:
 Article 2

A foundling found in the territory of a Contracting State shall, in the absence of proof to the
contrary, be considered to have been born within the territory of parents possessing the
nationality of that State.

That the Philippines is not a party to the 1930 Hague Convention nor to the 1961 Convention on the
Reduction of Statelessness does not mean that their principles are not binding. While the Philippines is not
a party to the 1930 Hague Convention, it is a signatory to the Universal Declaration on Human Rights,
Article 15(1) ofwhich131 effectively affirms Article 14 of the 1930 Hague Convention. Article 2 of the 1961
"United Nations Convention on the Reduction of Statelessness" merely "gives effect" to Article 15(1) of the
UDHR.132 In Razon v. Tagitis, 133 this Court noted that the Philippines had not signed or ratified the
"International Convention for the Protection of All Persons from Enforced Disappearance." Yet, we ruled
that the proscription against enforced disappearances in the said convention was nonetheless binding as a
"generally accepted principle of international law." Razon v. Tagitis is likewise notable for declaring the ban
as a generally accepted principle of international law although the convention had been ratified by only
sixteen states and had not even come into force and which needed the ratification of a minimum of twenty
states. Additionally, as petitioner points out, the Court was content with the practice of international and
regional state organs, regional state practice in Latin America, and State Practice in the United States.
Another case where the number of ratifying countries was not determinative is Mijares v. Ranada, 134 where
only fourcountries had "either ratified or acceded to" 135 the 1966 "Convention on the Recognition and
Enforcement of Foreign Judgments in Civil and Commercial Matters" when the case was decided in 2005.
The Court also pointed out that that nine member countries of the European Common Market had acceded
to the Judgments Convention. The Court also cited U.S. laws and jurisprudence on recognition of foreign
judgments. In all, only the practices of fourteen countries were considered and yet, there was
pronouncement that recognition of foreign judgments was widespread practice.
Our approach in Razon and Mijares effectively takes into account the fact that "generally accepted
principles of international law" are based not only on international custom, but also on "general principles of
law recognized by civilized nations," as the phrase is understood in Article 38.1 paragraph (c) of the ICJ
Statute. Justice, fairness, equity and the policy against discrimination, which are fundamental principles
underlying the Bill of Rights and which are "basic to legal systems generally," 136 support the notion that the
right against enforced disappearances and the recognition of foreign judgments, were correctly considered
as "generally accepted principles of international law" under the incorporation clause.
Petitioner's evidence137 shows that at least sixty countries in Asia, North and South America, and Europe
have passed legislation recognizing foundlings as its citizen. Forty-two (42) of those countries follow the jus
sanguinis regime. Of the sixty, only thirty-three (33) are parties to the 1961 Convention on Statelessness;
twenty-six (26) are not signatories to the Convention. Also, the Chief Justice, at the 2 February 2016 Oral
Arguments pointed out that in 166 out of 189 countries surveyed (or 87.83%), foundlings are recognized as
citizens. These circumstances, including the practice of jus sanguinis countries, show that it is a generally
accepted principle of international law to presume foundlings as having been born of nationals of the
country in which the foundling is found.
Current legislation reveals the adherence of the Philippines to this generally accepted principle of
international law. In particular, R.A. No. 8552, R.A. No. 8042 and this Court's Rules on Adoption, expressly
refer to "Filipino children." In all of them, foundlings are among the Filipino children who could be adopted.
Likewise, it has been pointed that the DFA issues passports to foundlings. Passports are by law, issued
only to citizens. This shows that even the executive department, acting through the DFA, considers
foundlings as Philippine citizens.
Adopting these legal principles from the 1930 Hague Convention and the 1961 Convention on
Statelessness is rational and reasonable and consistent with the jus sanguinis regime in our Constitution.
The presumption of natural-born citizenship of foundlings stems from the presumption that their parents are
nationals of the Philippines. As the empirical data provided by the PSA show, that presumption is at more
than 99% and is a virtual certainty.
In sum, all of the international law conventions and instruments on the matter of nationality of foundlings
were designed to address the plight of a defenseless class which suffers from a misfortune not of their own
making. We cannot be restrictive as to their application if we are a country which calls itself civilized and a
member of the community of nations. The Solicitor General's warning in his opening statement is relevant:
.... the total effect of those documents is to signify to this Honorable Court that those treaties and
conventions were drafted because the world community is concerned that the situation of foundlings
renders them legally invisible. It would be tragically ironic if this Honorable Court ended up using the
international instruments which seek to protect and uplift foundlings a tool to deny them political status or to
accord them second-class citizenship.138

The COMELEC also ruled139 that petitioner's repatriation in July 2006 under the provisions of R.A. No.
9225 did not result in the reacquisition of natural-born citizenship. The COMELEC reasoned that since the
applicant must perform an act, what is reacquired is not "natural-born" citizenship but only plain "Philippine
citizenship."
The COMELEC's rule arrogantly disregards consistent jurisprudence on the matter of repatriation statutes
in general and of R.A. No. 9225 in particular.
In the seminal case of Bengson Ill v. HRET, 140 repatriation was explained as follows:
Moreover, repatriation results in the recovery of the original nationality. This means that a naturalized
Filipino who lost his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the
other hand, if he was originally a natural-born citizen before he lost his Philippine citizenship, he will be
restored to his former status as a natural-born Filipino.

R.A. No. 9225 is a repatriation statute and has been described as such in several cases. They
include Sobejana-Condon v. COMELEC141 where we described it as an "abbreviated repatriation process
that restores one's Filipino citizenship x x x." Also included is Parreno v. Commission on Audit,142 which
cited Tabasa v. Court of Appeals,143 where we said that "[t]he repatriation of the former Filipino will allow
him to recover his natural-born citizenship. Parreno v. Commission on Audit 144 is categorical that "if
petitioner reacquires his Filipino citizenship (under R.A. No. 9225), he will ... recover his natural-
born citizenship."
The COMELEC construed the phrase "from birth" in the definition of natural citizens as implying "that
natural-born citizenship must begin at birth and remain uninterrupted and continuous from birth." R.A. No.
9225 was obviously passed in line with Congress' sole prerogative to determine how citizenship may be
lost or reacquired. Congress saw it fit to decree that natural-born citizenship may be reacquired even if it
had been once lost. It is not for the COMELEC to disagree with the Congress' determination.
More importantly, COMELEC's position that natural-born status must be continuous was already rejected
in Bengson III v. HRET145 where the phrase "from birth" was clarified to mean at the time of birth: "A person
who at the time of his birth, is a citizen of a particular country, is a natural-born citizen thereof." Neither is
"repatriation" an act to "acquire or perfect" one's citizenship. In Bengson III v. HRET, this Court pointed out
that there are only two types of citizens under the 1987 Constitution: natural-born citizen and naturalized,
and that there is no third category for repatriated citizens:
It is apparent from the enumeration of who are citizens under the present Constitution that there are only
two classes of citizens: (1) those who are natural-born and (2) those who are naturalized in accordance
with law. A citizen who is not a naturalized Filipino, ie., did not have to undergo the process of naturalization
to obtain Philippine citizenship, necessarily is a natural-born Filipino. Noteworthy is the absence in said
enumeration of a separate category for persons who, after losing Philippine citizenship, subsequently
reacquire it. The reason therefor is clear: as to such persons, they would either be natural-born or
naturalized depending on the reasons for the loss of their citizenship and the mode prescribed by the
applicable law for the reacquisition thereof. As respondent Cruz was not required by law to go through
naturalization proceedings in order to reacquire his citizenship, he is perforce a natural-born Filipino. As
such, he possessed all the necessary qualifications to be elected as member of the House of
Representatives.146
The COMELEC cannot reverse a judicial precedent. That is reserved to this Court. And while we may
always revisit a doctrine, a new rule reversing standing doctrine cannot be retroactively applied. In Morales
v. Court of Appeals and Jejomar Erwin S. Binay, Jr.,147 where we decreed reversed the condonation
doctrine, we cautioned that it "should be prospective in application for the reason that judicial decisions
applying or interpreting the laws of the Constitution, until reversed, shall form part of the legal system of the
Philippines." This Court also said that "while the future may ultimately uncover a doctrine's error, it should
be, as a general rule, recognized as good law prior to its abandonment. Consequently, the people's
reliance thereupon should be respected."148
Lastly, it was repeatedly pointed out during the oral arguments that petitioner committed a falsehood when
she put in the spaces for "born to" in her application for repatriation under R.A. No. 9225 the names of her
adoptive parents, and this misled the BI to presume that she was a natural-born Filipino. It has been
contended that the data required were the names of her biological parents which are precisely unknown.
This position disregards one important fact - petitioner was legally adopted. One of the effects of adoption
is "to sever all legal ties between the biological parents and the adoptee, except when the biological parent
is the spouse of the adoptee."149 Under R.A. No. 8552, petitioner was also entitled to an amended birth
certificate "attesting to the fact that the adoptee is the child of the adopter(s)" and which certificate "shall
not bear any notation that it is an amended issue." 150That law also requires that "[a]ll records, books, and
papers relating to the adoption cases in the files of the court, the Department [of Social Welfare and
Development], or any other agency or institution participating in the adoption proceedings shall be kept
strictly confidential."151 The law therefore allows petitioner to state that her adoptive parents were her birth
parents as that was what would be stated in her birth certificate anyway. And given the policy of strict
confidentiality of adoption records, petitioner was not obligated to disclose that she was an adoptee.
Clearly, to avoid a direct ruling on the qualifications of petitioner, which it cannot make in the same case for
cancellation of COC, it resorted to opinionatedness which is, moreover, erroneous. The whole process
undertaken by COMELEC is wrapped in grave abuse of discretion.
On Residence
The tainted process was repeated in disposing of the issue of whether or not petitioner committed false
material representation when she stated in her COC that she has before and until 9 May 2016 been a
resident of the Philippines for ten (10) years and eleven (11) months.
Petitioner's claim that she will have been a resident for ten (10) years and eleven (11) months on the day
before the 2016 elections, is true.
The Constitution requires presidential candidates to have ten (10) years' residence in the Philippines before
the day of the elections. Since the forthcoming elections will be held on 9 May 2016, petitioner must have
been a resident of the Philippines prior to 9 May 2016 for ten (10) years. In answer to the requested
information of "Period of Residence in the Philippines up to the day before May 09, 2016," she put in "10
years 11 months" which according to her pleadings in these cases corresponds to a beginning date of 25
May 2005 when she returned for good from the U.S.
When petitioner immigrated to the U.S. in 1991, she lost her original domicile, which is the Philippines.
There are three requisites to acquire a new domicile: 1. Residence or bodily presence in a new locality; 2.
an intention to remain there; and 3. an intention to abandon the old domicile. 152 To successfully effect a
change of domicile, one must demonstrate an actual removal or an actual change of domicile; a bona
fide intention of abandoning the former place of residence and establishing a new one and definite acts
which correspond with the purpose. In other words, there must basically be animus manendi coupled
with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite
period of time; the change of residence must be voluntary; and the residence at the place chosen for the
new domicile must be actual.153
Petitioner presented voluminous evidence showing that she and her family abandoned their U.S. domicile
and relocated to the Philippines for good. These evidence include petitioner's former U.S. passport
showing her arrival on 24 May 2005 and her return to the Philippines every time she travelled abroad; e-
mail correspondences starting in March 2005 to September 2006 with a freight company to arrange for the
shipment of their household items weighing about 28,000 pounds to the Philippines; e-mail with the
Philippine Bureau of Animal Industry inquiring how to ship their dog to the Philippines; school records of her
children showing enrollment in Philippine schools starting June 2005 and for succeeding years; tax
identification card for petitioner issued on July 2005; titles for condominium and parking slot issued in
February 2006 and their corresponding tax declarations issued in April 2006; receipts dated 23 February
2005 from the Salvation Army in the U.S. acknowledging donation of items from petitioner's family; March
2006 e-mail to the U.S. Postal Service confirming request for change of address; final statement from the
First American Title Insurance Company showing sale of their U.S. home on 27 April 2006; 12 July 2011
filled-up questionnaire submitted to the U.S. Embassy where petitioner indicated that she had been a
Philippine resident since May 2005; affidavit from Jesusa Sonora Poe (attesting to the return of petitioner
on 24 May 2005 and that she and her family stayed with affiant until the condominium was purchased); and
Affidavit from petitioner's husband (confirming that the spouses jointly decided to relocate to the Philippines
in 2005 and that he stayed behind in the U.S. only to finish some work and to sell the family home).
The foregoing evidence were undisputed and the facts were even listed by the COMELEC, particularly in
its Resolution in the Tatad, Contreras and Valdez cases.
However, the COMELEC refused to consider that petitioner's domicile had been timely changed as of 24
May 2005. At the oral arguments, COMELEC Commissioner Arthur Lim conceded the presence of the first
two requisites, namely, physical presence and animus manendi, but maintained there was no animus non-
revertendi.154 The COMELEC disregarded the import of all the evidence presented by petitioner on the
basis of the position that the earliest date that petitioner could have started residence in the Philippines was
in July 2006 when her application under R.A. No. 9225 was approved by the BI. In this regard, COMELEC
relied on Coquilla v. COMELEC,155 Japzon v. COMELEC156 and Caballero v. COMELEC. 157During the oral
arguments, the private respondents also added Reyes v. COMELEC.158 Respondents contend that these
cases decree that the stay of an alien former Filipino cannot be counted until he/she obtains a permanent
resident visa or reacquires Philippine citizenship, a visa-free entry under a balikbayan stamp being
insufficient. Since petitioner was still an American (without any resident visa) until her reacquisition of
citizenship under R.A. No. 9225, her stay from 24 May 2005 to 7 July 2006 cannot be counted.
But as the petitioner pointed out, the facts in these four cases are very different from her situation.
In Coquilla v. COMELEC,159 the only evidence presented was a community tax certificate secured by the
candidate and his declaration that he would be running in the elections. Japzon v. COMELEC160 did not
involve a candidate who wanted to count residence prior to his reacquisition of Philippine citizenship. With
the Court decreeing that residence is distinct from citizenship, the issue there was whether the candidate's
acts after reacquisition sufficed to establish residence. In Caballero v. COMELEC, 161 the candidate
admitted that his place of work was abroad and that he only visited during his frequent vacations. In Reyes
v. COMELEC,162 the candidate was found to be an American citizen who had not even reacquired
Philippine citizenship under R.A. No. 9225 or had renounced her U.S. citizenship. She was disqualified on
the citizenship issue. On residence, the only proof she offered was a seven-month stint as provincial officer.
The COMELEC, quoted with approval by this Court, said that "such fact alone is not sufficient to prove her
one-year residency."
It is obvious that because of the sparse evidence on residence in the four cases cited by the respondents,
the Court had no choice but to hold that residence could be counted only from acquisition of a permanent
resident visa or from reacquisition of Philippine citizenship. In contrast, the evidence of petitioner is
overwhelming and taken together leads to no other conclusion that she decided to permanently abandon
her U.S. residence (selling the house, taking the children from U.S. schools, getting quotes from the freight
company, notifying the U.S. Post Office of the abandonment of their address in the U.S., donating excess
items to the Salvation Army, her husband resigning from U.S. employment right after selling the U.S.
house) and permanently relocate to the Philippines and actually re-established her residence here on 24
May 2005 (securing T.I.N, enrolling her children in Philippine schools, buying property here, constructing a
residence here, returning to the Philippines after all trips abroad, her husband getting employed here).
Indeed, coupled with her eventual application to reacquire Philippine citizenship and her family's actual
continuous stay in the Philippines over the years, it is clear that when petitioner returned on 24 May 2005 it
was for good.
In this connection, the COMELEC also took it against petitioner that she had entered the Philippines visa-
free as a balikbayan. A closer look at R.A. No. 6768 as amended, otherwise known as the "An Act
Instituting a Balikbayan Program," shows that there is no overriding intent to treat balikbayans as
temporary visitors who must leave after one year. Included in the law is a former Filipino who has been
naturalized abroad and "comes or returns to the Philippines." 163 The law institutes a balikbayan program
"providing the opportunity to avail of the necessary training to enable the balikbayan to become
economically self-reliant members of society upon their return to the country" 164 in line with the
government's "reintegration program."165 Obviously, balikbayans are not ordinary transients.
Given the law's express policy to facilitate the return of a balikbayan and help him reintegrate into society, it
would be an unduly harsh conclusion to say in absolute terms that the balikbayan must leave after one
year. That visa-free period is obviously granted him to allow him to re-establish his life and reintegrate
himself into the community before he attends to the necessary formal and legal requirements of
repatriation. And that is exactly what petitioner did - she reestablished life here by enrolling her children and
buying property while awaiting the return of her husband and then applying for repatriation shortly
thereafter.
No case similar to petitioner's, where the former Filipino's evidence of change in domicile is extensive and
overwhelming, has as yet been decided by the Court. Petitioner's evidence of residence is unprecedented.
There is no judicial precedent that comes close to the facts of residence of petitioner. There is no indication
in Coquilla v. COMELEC,166 and the other cases cited by the respondents that the Court intended to have
its rulings there apply to a situation where the facts are different. Surely, the issue of residence has been
decided particularly on the facts-of-the case basis.
To avoid the logical conclusion pointed out by the evidence of residence of petitioner, the COMELEC ruled
that petitioner's claim of residence of ten (10) years and eleven (11) months by 9 May 2016 in her 2015
COC was false because she put six ( 6) years and six ( 6) months as "period of residence before May 13,
2013" in her 2012 COC for Senator. Thus, according to the COMELEC, she started being a Philippine
resident only in November 2006. In doing so, the COMELEC automatically assumed as true the statement
in the 2012 COC and the 2015 COC as false.
As explained by petitioner in her verified pleadings, she misunderstood the date required in the 2013 COC
as the period of residence as of the day she submitted that COC in 2012. She said that she reckoned
residency from April-May 2006 which was the period when the U.S. house was sold and her husband
returned to the Philippines. In that regard, she was advised by her lawyers in 2015 that residence could be
counted from 25 May 2005.
Petitioner's explanation that she misunderstood the query in 2012 (period of residence before 13 May
2013) as inquiring about residence as of the time she submitted the COC, is bolstered by the change which
the COMELEC itself introduced in the 2015 COC which is now "period of residence in the Philippines up to
the day before May 09, 2016." The COMELEC would not have revised the query if it did not acknowledge
that the first version was vague.
That petitioner could have reckoned residence from a date earlier than the sale of her U.S. house and the
return of her husband is plausible given the evidence that she had returned a year before. Such evidence,
to repeat, would include her passport and the school records of her children.
It was grave abuse of discretion for the COMELEC to treat the 2012 COC as a binding and conclusive
admission against petitioner. It could be given in evidence against her, yes, but it was by no means
conclusive. There is precedent after all where a candidate's mistake as to period of residence made in a
COC was overcome by evidence. In Romualdez-Marcos v. COMELEC,167 the candidate mistakenly put
seven (7) months as her period of residence where the required period was a minimum of one year. We
said that "[i]t is the fact of residence, not a statement in a certificate of candidacy which ought to be
decisive in determining whether or not an individual has satisfied the constitutions residency qualification
requirement." The COMELEC ought to have looked at the evidence presented and see if petitioner was
telling the truth that she was in the Philippines from 24 May 2005. Had the COMELEC done its duty, it
would have seen that the 2012 COC and the 2015 COC both correctly stated the pertinent period of
residency.
The COMELEC, by its own admission, disregarded the evidence that petitioner actually and physically
returned here on 24 May 2005 not because it was false, but only because COMELEC took the position that
domicile could be established only from petitioner's repatriation under R.A. No. 9225 in July 2006.
However, it does not take away the fact that in reality, petitioner had returned from the U.S. and was here to
stay permanently, on 24 May 2005. When she claimed to have been a resident for ten (10) years and
eleven (11) months, she could do so in good faith.
For another, it could not be said that petitioner was attempting to hide anything. As already stated, a
petition for quo warranto had been filed against her with the SET as early as August 2015. The event from
which the COMELEC pegged the commencement of residence, petitioner's repatriation in July 2006 under
R.A. No. 9225, was an established fact to repeat, for purposes of her senatorial candidacy.
Notably, on the statement of residence of six (6) years and six (6) months in the 2012 COC, petitioner
recounted that this was first brought up in the media on 2 June 2015 by Rep. Tobias Tiangco of the United
Nationalist Alliance. Petitioner appears to have answered the issue immediately, also in the press.
Respondents have not disputed petitioner's evidence on this point. From that time therefore when Rep.
Tiangco discussed it in the media, the stated period of residence in the 2012 COC and the circumstances
that surrounded the statement were already matters of public record and were not hidden.
Petitioner likewise proved that the 2012 COC was also brought up in the SET petition for quo warranto. Her
Verified Answer, which was filed on 1 September 2015, admitted that she made a mistake in the 2012 COC
when she put in six ( 6) years and six ( 6) months as she misunderstood the question and could have
truthfully indicated a longer period. Her answer in the SET case was a matter of public record. Therefore,
when petitioner accomplished her COC for President on 15 October 2015, she could not be said to have
been attempting to hide her erroneous statement in her 2012 COC for Senator which was expressly
mentioned in her Verified Answer.
The facts now, if not stretched to distortion, do not show or even hint at an intention to hide the 2012
statement and have it covered by the 2015 representation. Petitioner, moreover, has on her side this
Court's pronouncement that:
Concededly, a candidate's disqualification to run for public office does not necessarily constitute material
misrepresentation which is the sole ground for denying due course to, and for the cancellation of, a COC.
Further, as already discussed, the candidate's misrepresentation in his COC must not only refer to a
material fact (eligibility and qualifications for elective office), but should evince a deliberate intent to
mislead, misinform or hide a fact which would otherwise render a candidate ineligible. It must be made with
an intention to deceive the electorate as to one's qualifications to run for public office. 168

In sum, the COMELEC, with the same posture of infallibilism, virtually ignored a good number of evidenced
dates all of which can evince animus manendi to the Philippines and animus non revertedi to the United
States of America. The veracity of the events of coming and staying home was as much as dismissed as
inconsequential, the focus having been fixed at the petitioner's "sworn declaration in her COC for Senator"
which the COMELEC said "amounts to a declaration and therefore an admission that her residence in the
Philippines only commence sometime in November 2006"; such that "based on this declaration, [petitioner]
fails to meet the residency requirement for President." This conclusion, as already shown, ignores the
standing jurisprudence that it is the fact of residence, not the statement of the person that determines
residence for purposes of compliance with the constitutional requirement of residency for election as
President. It ignores the easily researched matter that cases on questions of residency have been decided
favorably for the candidate on the basis of facts of residence far less in number, weight and substance than
that presented by petitioner. 169 It ignores, above all else, what we consider as a primary reason why
petitioner cannot be bound by her declaration in her COC for Senator which declaration was not even
considered by the SET as an issue against her eligibility for Senator. When petitioner made the declaration
in her COC for Senator that she has been a resident for a period of six (6) years and six (6) months
counted up to the 13 May 2013 Elections, she naturally had as reference the residency requirements for
election as Senator which was satisfied by her declared years of residence. It was uncontested during the
oral arguments before us that at the time the declaration for Senator was made, petitioner did not have as
yet any intention to vie for the Presidency in 2016 and that the general public was never made aware by
petitioner, by word or action, that she would run for President in 2016. Presidential candidacy has a length-
of-residence different from that of a senatorial candidacy. There are facts of residence other than that which
was mentioned in the COC for Senator. Such other facts of residence have never been proven to be false,
and these, to repeat include:
[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's] husband however stayed in the USA
to finish pending projects and arrange the sale of their family home.

Meanwhile [petitioner] and her children lived with her mother in San Juan City. [Petitioner]
enrolled Brian in Beacon School in Taguig City in 2005 and Hanna in Assumption College in
Makati City in 2005. Anika was enrolled in Learning Connection in San Juan in 2007, when she
was already old enough to go to school.

In the second half of 2005, [petitioner] and her husband acquired Unit 7F of One Wilson Place
Condominium in San Juan. [Petitioner] and her family lived in Unit 7F until the construction of
their family home in Corinthian Hills was completed.

Sometime in the second half of 2005, [petitioner's] mother discovered that her former lawyer
who handled [petitioner's] adoption in 1974 failed to secure from the Office of the Civil
Registrar of Iloilo a new Certificate of Live Birth indicating [petitioner's] new name and stating
that her parents are "Ronald Allan K. Poe" and "Jesusa L. Sonora."

In February 2006, [petitioner] travelled briefly to the US in order to supervise the disposal of
some of the family's remaining household belongings. [Petitioner] returned to the Philippines
1a\^/phi1

on 11 March 2006.

In late March 2006, [petitioner's] husband informed the United States Postal Service of the
family's abandonment of their address in the US.

The family home in the US was sole on 27 April 2006.

In April 2006, [petitioner's] husband resigned from his work in the US. He returned to the
Philippines on 4 May 2006 and began working for a Philippine company in July 2006.

In early 2006, [petitioner] and her husband acquired a vacant lot in Corinthian Hills, where they
eventually built their family home.170

In light of all these, it was arbitrary for the COMELEC to satisfy its intention to let the case fall under the
exclusive ground of false representation, to consider no other date than that mentioned by petitioner in her
COC for Senator.
All put together, in the matter of the citizenship and residence of petitioner for her candidacy as President of
the Republic, the questioned Resolutions of the COMELEC in Division and En Banc are, one and all,
deadly diseased with grave abuse of discretion from root to fruits.
WHEREFORE, the petition is GRANTED. The Resolutions, to wit:
1. dated 1 December 2015 rendered through the COMELEC Second Division, in SPA No. 15-001 (DC),
entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares,
respondent, stating that:
[T]he Certificate of Candidacy for President of the Republic of the Philippines in the May 9, 2016 National
and Local Elections filed by respondent Mary Grace Natividad Sonora Poe-Llamanzares is hereby
GRANTED.

2. dated 11 December 2015, rendered through the COMELEC First Division, in the consolidated cases SPA
No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent; SPA No. 15-007 (DC) entitled Antonio P. Contreras, petitioner, vs. Mary Grace
Natividad Sonora Poe-Llamanzares, respondent; and SPA No. 15-139 (DC) entitled Amado D. Valdez,
petitioner, v. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; stating that:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT
the petitions and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD SONORA POE-
LLAMANZARES for the elective position of President of the Republic of the Philippines in connection with
the 9 May 2016 Synchronized Local and National Elections.

3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1 December 2015 Resolution of the
Second Division stating that:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to DENY the
Verified Motion for Reconsideration of SENATOR MARY GRACE NATIVIDAD SONORA POE-
LLAMANZARES. The Resolution dated 11 December 2015 of the Commission First Division is AFFIRMED.

4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11 December 2015 Resolution of
the First Division.
are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE NATIVIDAD SONORA POE-
LLAMANZARES is DECLARED QUALIFIED to be a candidate for President in the National and Local
Elections of 9 May 2016.
SO ORDERED.
JOSE PORTUGAL PEREZ

July 4, 2017
G.R. No. 231658
REPRESENTATIVES EDCEL C. LAGMAN, TOMASITO S. VILLARIN, GARY C. ALEJANO, EMMANUEL
A. BILLONES, AND TEDDY BRAWNER BAGUILAT, JR., Petitioners
vs.
HON. SALVADOR C. MEDIALDEA, EXECUTIVE SECRETARY; HON. DELFIN N. LORENZANA,
SECRETARY OF THE DEPARTMENT OF NATIONAL DEF'ENSE AND MARTIAL LAW
ADMINISTRATOR; AND GEN. EDUARDO ANO, CHIEF OF STAFF OF THE ARMED FORCES OF THE
PHILIPPINES AND MARTIAL LAW IMPLEMENTOR, Respondents
x-----------------------x
G.R. No. 231771
EUFEMIA CAMPOS CULLAMAT, VIRGILIO T. LIN CUNA, ATELIANA U. HIJOS, ROLAND A.
COBRADO, CARL ANTHONY D. OLALO, ROY JIM BALANGIDG, RENATO REYES, JR., CRISTIN A E.
PALABAY, AMARYLLIS H. ENRIQUEZ, ACT TEACHERS' REPRESENTATIVE ANTONIO L. TINIO,
GABRIELA WOMEN'S PARTY REPRESENTATIVE i\RLENED.BROSAS,KABATAAN PARTY-LIST
REPRESENTATIVE SARAH JANE I. ELAGO, MAE PANER, GABRIELA KRISTA DALENA, ANNA
ISABELLE ESTEIN, MARK VINCENT D. LIM, VENCER MARI CRISOSTOMO, JOVITA
MONTES, Petitioners,
vs.
PRESIDENT RODRIGO DUTERTE, EXECUTIVE SECRETARY SALVADOR MEDIALDEA, DEFENSE
SECRETARY DELFIN LORENZANA, ARMED FORCES OF THE PHILIPPINES CHIEF OF STAFF LT.
GENERAL EDUARDO ANO, PHILIPPINE NATIONAL POLICE DIRECTOR-GENERAL RONALD DELA
ROSA, Respondents
x-----------------------x
G.R. No. 231774
NORKAYA S. MOHAMAD, SITTIE NUR DYHANNA S. MOHAMAD, NORAISAH S. SANI, ZAHRIA P.
MUTI-MAPANDI,Petitioners,
vs.
EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA, DEPARTMENT OF NATIONAL DEFENSE
(DND) SECRETARY DELFIN N. LORENZANA, DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT (DILG) SECRETARY (OFFICER-INCHARGE) CATALINO S. CUY, ARMED FORCES OF
THE PHILIPPINES (AFP) CHEF OF STAFF GEN. EDUARDO M. AÑO, PHILIPPINE NATIONAL POLICE
(PNP) CHIEF DIRECTOR GENERAL RONALD M. DELA ROSA, NATIONAL SECURITY ADVISER
HERMOGENES C. ESPERON, JR., Respondents.
DECISION
DEL CASTILLO, J.:
Effective May 23, 2017, and for a period not exceeding 60 days, President Rodrigo Roa Duterte issued
Proclamation No. 216 declaring a state of martial law and suspending the privilege of the writ of habeas
corpus in the whole of Mindanao.
The full text of Proclamation No. 216 reads as follows:
WHEREAS, Proclamation No. 55, series of 2016, was issued on 04 September 2016 declaring a state of
national emergency on account of lawless violence in Mindanao;

WHEREAS, Section 18, Article VII of the Constitution provides that 'x x x In case of invasion or
rebellion, when the public safety requires it, he (the President) may, for a period not exceeding
sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any
part thereof under martial law x x x';

WHEREAS, Article 134 of the Revised Penal Code, as amended by R.A. No. 6968, provides
that 'the crime of rebellion or insurrection is committed by rising and taking arms against the
Government for the purpose of removing from the allegiance to said Government or its laws,
the territory of the Republic of the Philippines or any part thereof, of any body of land, naval or
other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of
any of their powers or prerogatives';

WHEREAS, part of the reasons for the issuance of Proclamation No. 55 was the series of
violent acts committed by the Maute terrorist group such as the attack on the military outpost in
Butig, Lanao del Sur in February 2016, killing and wounding several soldiers, and the mass
jailbreak in Marawi City in August 2016, freeing their arrested comrades and other detainees;

WHEREAS, today 23 May 2017, the same Maute terrorist group has taken over a hospital in
Marawi City, Lanao del Sur, established several checkpoints within the City, burned down
certain government and private facilities and inflicted casualties on the part of Government
forces, and started flying the flag of the Islamic State of Iraq and Syria (ISIS) in several areas,
thereby openly attempting to remove from the allegiance to the Philippine Government this part
of Mindanao and deprive the Chief Executive of his powers and prerogatives to enforce the
laws of the land and to maintain public order and safety in Mindanao, constituting the crime of
rebellion; and

WHEREAS, this recent attack shows the capability of the Maute group and other rebel groups
to sow terror, and cause death and damage to property not only in Lanao del Sur but also in
other parts of Mindanao.

NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Republic of the

Philippines, by virtue of the powers vested in me by the Constitution and by law, do hereby
proclaim as follows:

SECTION 1. There is hereby declared a state of martial law in the Mindanao group of islands
for a period not exceeding sixty days, effective as of the date hereof.

SECTION 2. The privilege of the writ of habeas corpus shall likewise be suspended in the
aforesaid area for the duration of the state of martial law.
 DONE in the Russian Federation, this 23rd day of May in the year of our Lord, Two Thousand
and Seventeen.

Within the timeline set by Section 18, Article VII of the Constitution, the President submitted to Congress on
May 25, 2017, a written Report on the factual basis of Proclamation No. 216.
The Report pointed out that for decades, Mindanao has been plagued with rebellion and lawless violence
which only escalated and worsened with the passing of time.
Mindanao has been the hotbed of violent extremism and a brewing rebellion for decades. In more recent
years, we have witnessed the perpetration of numerous acts of violence challenging the authority of the
duly constituted authorities, i.e., the Zamboanga siege, the Davao bombing, the Mamasapano carnage,
and the bombings in Cotabato, Sultan Kudarat, Sulu, and Basilan, among others. Two armed groups have
figured prominently in all these, namely, the Abu Sayaff Group (ASG) and the ISIS-backed Maute Group. 1

The President went on to explain that on May 23, 2017, a government operation to capture the high-
ranking officers of the Abu Sayyaf Group (ASG) and the Maute Group was conducted. These groups, which
have been unleashing havoc in Mindanao, however, confronted the government operation by intensifying
their efforts at sowing violence aimed not only against the government authorities and its facilities but
likewise against civilians and their properties. As narrated in the President's Report:
On 23 May 2017, a government operation to capture Isnilon Hapilon, a senior leader of the ASG, and
Maute Group operational leaders, Abdullah and Omarkhayam Maute, was confronted with armed
resistance which escalated into open hostility against the government. Through these groups' armed siege
and acts of violence directed towards civilians and government authorities, institutions and establishments,
they were able to take control of major social, economic, and political foundations of Marawi City which led
to its paralysis. This sudden taking of control was intended to lay the groundwork for the eventual
establishment of a DAESH wilayat or province in Mindanao.

Based on verified intelligence reports, the Maute Group, as of the end of 2016, consisted of
around two hundred sixty-three (263) members, fully armed and prepared to wage combat in
furtherance of its aims. The group chiefly operates in the province of Lanao del Sur, but has
extensive networks and linkages with foreign and local armed groups such as the Jemaah
Islamiyah, Mujahidin Indonesia Timur and the ASG. It adheres to the ideals being espoused by
the DAESH, as evidenced by, among others, its publication of a video footage declaring its
allegiance to the DAESH. Reports abound that foreign-based terrorist groups, the ISIS (Islamic
State of Iraq and Syria) in particular, as well as illegal drug money, provide financial and
logistical support to the Maute Group.

The events commencing on 23 May 2017 put on public display the groups' clear intention to
establish an Islamic State and their capability to deprive the duly constituted authorities - the
President, foremost - of their powers and prerogatives.2

In particular, the President chronicled in his Report the events which took place on May 23, 2017 in Marawi
City which impelled him to declare a state of martial law and suspend the privilege of writ of habeas
corpus, to wit:
• At 1400H members of the Maute Group and ASG, along with their sympathizers, commenced their attack
on various facilities - government and privately owned - in the City of Marawi.

• At 1600H around fifty (50) armed criminals assaulted Marawi City Jail being manage by the
Bureau of Jail Management and Penology (BJMP).

• The Maute Group forcibly entered the jail facilities, destroyed its main gate, and assaulted on-
duty personnel. BJMP personnel were disarmed, tied, and/or locked inside the cells.
• The group took cellphones, personnel-issued firearms, and vehicles (i.e., two [2] prisoner
vans and private vehicles).

• By 1630H, the supply of power into Marawi City had been interrupted, and sporadic gunfights
were heard and felt everywhere. By evening, the power outage had spread citywide. (As of 24
May 2017, Marawi City's electric supply was still cut off, plunging the city into total black-out.)

• From 1800H to 1900H, the same members of the Maute Group ambushed and burned the
Marawi Police Station. A patrol car of the Police Station was also taken.

• A member of the Provincial Drug Enforcement Unit was killed during the takeover of the
Marawi City Jail. The Maute Group facilitated the escape of at least sixty-eight (68) inmates of
the City Jail.

• The BJMP directed its personnel at the Marawi City Jail and other affected areas to evacuate.

• By evening of 23 May 2017, at least three (3) bridges in Lanao del Sur, namely, Lilod,
Bangulo, and Sauiaran, fell under the control of these groups. They threatened to bomb the
bridges to pre-empt military reinforcement.

• As of 2222H, persons connected with the Maute Group had occupied several areas in
Marawi City, including Naga Street, Bangolo Street, Mapandi, and Camp Keithly, as well as the
following barangays: Basak Malutlot, Mapandi, Saduc, Lilod Maday, Bangon, Saber, Bubong,
Marantao, Caloocan, Banggolo, Barionaga, and Abubakar.

• These lawless armed groups had likewise set up road blockades and checkpoints at the
Iligan City-Marawi City junction.

• Later in the evening, the Maute Group burned Dansalan College Foundation, Cathedral of
Maria Auxiliadora, the nun's quarters in the church, and the Shia Masjid Moncado Colony.
Hostages were taken from the church.

• About five (5) faculty members of Dansalan College Foundation had been reportedly killed by
the lawless groups.

• Other educational institutions were also burned, namely, Senator Ninoy Aquino College
Foundation and the Marawi Central Elementary Pilot School.

• The Maute Group also attacked Amai Pakpak Hospital and hoisted the DAESH flag there,
among other several locations. As of 0600H of 24May 2017, members of the Maute Group
were seen guarding the entry gates of Amai Pakpak Hospital. They held hostage the
employees of the Hospital and took over the PhilHealth office located thereat.

• The groups likewise laid siege to another hospital, Filipino-Libyan Friendship Hospital, which
they later set ablaze.

• Lawless armed groups likewise ransacked the Landbank of the Philippines and
commandeered one of its armored vehicles.

• Latest information indicates that about seventy-five percent (75%) of Marawi City has been
infiltrated by lawless armed groups composed of members of the Maute Group and the ASG.
 As of the time of this Report, eleven (11) members of the Armed Forces and the Philippine
National Police have been killed in action, while thirty-five (35) others have been seriously
wounded.

• There are reports that these lawless armed groups are searching for Christian communities in
Marawi City to execute Christians. They are also preventing Maranaos from leaving their
homes and forcing young male Muslims to join their groups.

• Based on various verified intelligence reports from the AFP and the PNP, there exists a
strategic mass action of lawless armed groups in Marawi City, seizing public and private
facilities, perpetrating killings of government personnel, and committing armed uprising against
and open defiance of the government.3

The unfolding of these events, as well as the classified reports he received, led the President to conclude
that -
These activities constitute not simply a display of force, but a clear attempt to establish the groups' seat of
power in Marawi City for their planned establishment of a DAESH wilayat or province covering the entire
Mindanao.

The cutting of vital lines for transportation and power; the recruitment of young Muslims to
further expand their ranks and strengthen their force; the armed consolidation of their members
throughout Marawi City; the decimation of a segment of the city population who resist; and the
brazen display of DAESH flags constitute a clear, pronounced, and unmistakable intent to
remove Marawi City, and eventually the rest of Mindanao, from its allegiance to the
Government.

There exists no doubt that lawless armed groups are attempting to deprive the President of his
power, authority, and prerogatives within Marawi City as a precedent to spreading their control
over the entire Mindanao, in an attempt to undermine his control over executive departments,
bureaus, and offices in said area; defeat his mandate to ensure that all laws are faithfully
executed; and remove his supervisory powers over local govemments. 4

According to the Report, the lawless activities of the ASG, Maute Group, and other criminals, brought about
undue constraints and difficulties to the military and government personnel, particularly in the performance
of their duties and functions, and untold hardships to the civilians, viz.:
Law enforcement and other government agencies now face pronounced difficulty sending their reports to
the Chief Executive due to the city-wide power outages. Personnel from the BJMP have been prevented
from performing their functions. Through the attack and occupation of several hospitals, medical services in
Marawi City have been adversely affected. The bridge and road blockades set up by the groups effectively
deprive the government of its ability to deliver basic services to its citizens. Troop reinforcements have
been hampered, preventing the government from restoring peace and order in the area. Movement by both
civilians and government personnel to and from the city is likewise hindered.

The taking up of arms by lawless armed groups in the area, with support being provided by
foreign-based terrorists and illegal drug money, and their blatant acts of defiance which
embolden other armed groups in Mindanao, have resulted in the deterioration of public order
and safety in Marawi City; they have likewise compromised the security of the entire Island of
Mindanao.5

The Report highlighted the strategic location of Marawi City and the crucial and significant role it plays in
Mindanao, and the Philippines as a whole. In addition, the Report pointed out the possible tragic
repercussions once Marawi City falls under the control of the lawless groups.
The groups' occupation of Marawi City fulfills a strategic objective because of its terrain and the easy
access it provides to other parts of Mindanao. Lawless armed groups have historically used provinces
adjoining Marawi City as escape routes, supply lines, and backdoor passages.

Considering the network and alliance-building activities among terrorist groups, local criminals,
and lawless armed men, the siege of Marawi City is a vital cog in attaining their long-standing
goal: absolute control over the entirety of Mindanao. These circumstances demand swift and
decisive action to ensure the safety and security of the Filipino people and preserve our
national integrity.6

The President ended his Report in this wise:

While the government is presently conducting legitimate operations to address the on-going
rebellion, if not the seeds of invasion, public safety necessitates the continued implementation
of martial law and the suspension of the privilege of the writ of habeas corpus in the whole of
Mindanao until such time that the rebellion is completely quelled. 7

In addition to the Report, representatives from the Executive Department, the military and police authorities
conducted briefings with the Senate and the House of Representatives relative to the declaration of martial
law.
After the submission of the Report and the briefings, the Senate issued P.S. Resolution No.
3888 expressing full support to the martial law proclamation and finding Proclamation No. 216 "to be
satisfactory, constitutional and in accordance with the law". In the same Resolution, the Senate declared
that it found "no compelling reason to revoke the same". The Senate thus resolved as follows:
NOW, THEREFORE, BE IT RESOLVED, as it is hereby resolved, by way of the sense of the Senate, that
the Senate finds the issuance of Proclamation No. 216 to be satisfactory, constitutional and in accordance
with the law. The Senate hereby supports fully Proclamation No. 216 and finds no compelling reason to
revoke the sarne.9

The Senate's counterpart in the lower house shared the same sentiments. The House of Representatives
likewise issued House Resolution No. 1050 10 "EXPRESSING THE FULL SUPPORT OF THE HOUSE OF
REPRESENTATIVES TO PRESIDENT RODRIGO DUTERTE AS IT FINDS NO REASON TO REVOKE
PROCLAMATION NO. 216, ENTITLED 'DECLARING A STATE OF MARTIAL LAW AND SUSPENDING
THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN THE WHOLE OF MINDANAO"'.
The Petitions
A) G.R. No. 231658 (Lagman Petition)
On June 5, 2017, Representatives Edcel C. Lagman, Tomasito s. Villarin, Gary C. Alejano, Emmanuel A.
Billones, and Teddy Brawner Baguilat, Jr. filed a Petition11 Under the Third Paragraph of Section 18 of
Article VII of the 1987 Constitution.
First, the Lagman Petition claims that the declaration of martial law has no sufficient factual basis because
there is no rebellion or invasion in Marawi City or in any part of Mindanao. It argues that acts of terrorism in
Mindanao do not constitute rebellion12 since there is no proof that its purpose is to remove Mindanao or any
part thereof from allegiance to the Philippines, its laws, or its territory. 13 It labels the flying of ISIS flag by the
Maute Group in Marawi City and other outlying areas as mere propaganda1 14 and not an open attempt to
remove such areas from the allegiance to the Philippine Government and deprive the Chief Executive of
the assertion and exercise of his powers and prerogatives therein. It contends that the Maute Group is a
mere private army, citing as basis the alleged interview of Vera Files with Joseph Franco wherein the latter
allegedly mentioned that the Maute Group is more of a "clan's private militia latching into the IS brand
theatrically to inflate perceived capability". 15 The Lagman Petition insists that during the briefing,
representatives of the military and defense authorities did not categorically admit nor deny the presence of
an ISIS threat in the country but that they merely gave an evasive answer 16 that "there is ISIS in the
Philippines".17 The Lagman Petition also avers that Lt. Gen. Salvador Mison, Jr. himself admitted that the
current armed conflict in Marawi City was precipitated or initiated by the government in its bid to capture
Hapilon.18 Based on said statement, it concludes that the objective of the Maute Group's armed resistance
was merely to shield Hapilon and the Maute brothers from the government forces, and not to lay siege on
Marawi City and remove its allegiance to the Philippine Republic. 19 It then posits that if at all, there is only
a threat of rebellion in Marawi City which is akin to "imminent danger" of rebellion, which is no longer a
valid ground for the declaration of martial law.20
Second, the Lagman Petition claims that the declaration of martial law has no sufficient factual basis
because the President's Report containef "false, inaccurate, contrived and hyperbolic accounts". 21
It labels as false the claim in the President's Report that the Maute Group attacked Amai Pakpak Medical
Center. Citing online reports on the interview of Dr. Amer Saber (Dr. Saber), the hospital's Chief, the
Lagman Petition insists that the Maute Group merely brought an injured member to the hospital for
treatment but did not overrun the hospital or harass the hospital personnel. 22 The Lagman Petition also
refutes the claim in the President's Report that a branch of the Landbank of the Philippines was ransacked
and its armored vehicle commandeered. It alleges that the bank employees themselves clarified that the
bank was not ransacked while the armored vehicle was owned by a third party and was empty at the time it
was commandeered.23 It also labels as false the report on the burning of the Senator Ninoy Aquino College
Foundation and the Marawi Central Elementary Pilot School. It avers that the Senator Ninoy Aquino
College Foundation is intact as of May 24, 2017 and that according to Asst. Superintendent Ana Alonto, the
Marawi Central Elementary Pilot School was not burned by the terrorists. 24 Lastly, it points out as false the
report on the beheading of the police chief of Malabang, Lanao del Sur, and the occupation of the Marawi
City Hall and part of the Mindanao State University.25
Third, the Lagman Petition claims that the declaration of martial law has no sufficient factual basis since
the President's Report mistakenly included the attack on the military outpost in Butig, Lanao del Sur in
February 2016, the mass jail break in Marawi City in August 2016, the Zamboanga siege, the Davao
market bombing, the Mamasapano carnage and other bombing incidents in Cotabato, Sultan Kudarat, and
Basilan, as additional factual bases for the proclamation of martial law. It contends that these events either
took place long before the conflict in Marawi City began, had long been resolved, or with the culprits having
already been arrested.26
Fourth, the Lagman Petition claims that the declaration of martial law has no sufficient factual basis
considering that the President acted alone and did not consult the military establishment or any ranking
official27 before making the proclamation.
Finally, the Lagman Petition claims that the President's proclamation of martial law lacks sufficient factual
basis owing to the fact that during the presentation before the Committee of the Whole of the House of
Representatives, it was shown that the military was even successful in pre-empting the ASG and the Maute
Group's plan to take over Marawi City and other parts of Mindanao; there was absence of any hostile plan
by the Moro Islamic Liberation Front; and the number of foreign fighters allied with ISIS was
"undetermined"28 which indicates that there are only a meager number of foreign fighters who can lend
support to the Maute Group.29
Based on the foregoing argumentation, the Lagman Petition asks the Court to: (1)"exercise its specific and
special jurisdiction to review the sufficiency of the factual basis of Proclamation No. 216"; and (2) render "a
Decision voiding and nullifying Proclamation No. 216" for lack of sufficient factual basis. 30
In a Resolution31 dated June 6, 2017, the Court required respondents to comment on the Lagman Petition
and set the case for oral argument on June 13, 14, and 15, 2017.
On June 9, 2017, two other similar petitions docketed as G.R. Nos. 231771 and 231774 were filed and
eventually consolidated with G.R. No. 231658.32
B) G.R. No. 231771 (Cullamat Petition)
The Cullamat Petition, "anchored on Section 18, Article VII" 33 of the Constitution, likewise seeks the
nullification of Proclamation No. 216 for being unconstitutional because it lacks sufficient factual basis that
there is rebellion in Mindanao and that public safety warrants its declaration. 34
In particular, it avers that the supposed rebellion described in Proclamation No. 216 relates to events
happening in Marawi City only an not in the entire region of Mindanao. It concludes that Proclamation No
216 "failed to show any factual basis for the imposition of martial law in the entire Mindanao,"35 "failed to
allege any act of rebellion outside Marawi City, much less x x x allege that public safety requires the
imposition o martial law in the whole of Mindanao".36
The Cullamat Petition claims that the alleged "capability of the Maute Group and other rebel groups to sow
terror and cause death and damage to property" 37 does not rise to the level of rebellion sufficient to declare
martial law in the whole of Mindanao. 38 It also posits that there is no lawless violence in other parts of
Mindanao similar to that in Marawi City.39
Moreover, the Cullamat Petition assails the inclusion of the phrase "other rebel groups" in the last Whereas
Clause of Proclamation No. 216 for being vague as it failed to identify these rebel groups and specify the
acts of rebellion that they were supposedly waging.40
In addition, the Cullamat Petition cites alleged inaccuracies, exaggerations, and falsities in the Report of
the President to Congress, particularly the attack at the Amai Pakpak Hospital, the ambush and burning of
the Marawi Police Station, the killing of five teachers of Dansalan College Foundation, and the attacks on
various government facilities.41
In fine, the Cullamat Petition prays for the Court to declare Proclamation No. 216 as unconstitutional or in
the alternative, should the Court find justification for the declaration of martial law and suspension of the
privilege of the writ of habeas corpus in Marawi City, to declare the same as unconstitutional insofar as its
inclusion of the other parts of Mindanao.42
C) G.R. No. 231774 (Mohamad Petition)
The Mohamad Petition, denominated as a "Petition for Review of the Sufficiency of [the] Factual Basis of
[the] Declaration of Martial Law and [the] Suspension of the Privilege of the Writ of Habeas
Corpus,"43 labels itself as "a special proceeding" 44 or an "appropriate proceeding filed by any
citizen"45 authorized under Section 18, Article VII of the Constitution.
The Mohamad Petition posits that martial law is a measure of last resort 46 and should be invoked by the
President only after exhaustion of less severe remedies. 47 It contends that the extraordinary powers of the
President should be dispensed sequentially, i.e., first, the power to call out the armed forces; second, the
power to suspend the privilege of the writ of habeas corpus; and finally, the power to declare martial
law.48 It maintains that the President has no discretion to choose which extraordinary power to use;
moreover, his choice must be dictated only by, and commensurate to, the exigencies of the situation. 49
According to the Mohamad Petition, the factual situation in Marawi is not so grave as to require the
imposition of martial law.50 It asserts that the Marawi incidents "do not equate to the existence of a public
necessity brought about by an actual rebellion, which would compel the imposition of martial law or the
suspension of the privilege of the writ of habeas corpus".51 It proposes that "[m]artial law can only be
justified if the rebellion or invasion has reached such gravity that [its] imposition x x x is compelled by the
needs of public safety"52 which, it believes, is not yet present in Mindanao.
Moreover, it alleges that the statements contained in the President's Report to the Congress, to wit: that the
Maute Group intended to establish an Islamic State; that they have the capability to deprive the duly
constituted authorities of their powers and prerogatives; and that the Marawi armed hostilities is merely a
prelude to a grander plan of taking over the whole of Mindanao, are conclusions bereft of substantiation. 53
The Mohamad Petition posits that immediately after the declaration of martial law, and without waiting for a
congressional action, a suit may already be brought before the Court to assail the sufficiency of the factual
basis of Proclamation No. 216.
Finally, in invoking this Court's power to review the sufficiency ofthe factual basis for the declaration of
martial law and the suspension of the privilege of the writ of habeas corpus, the Mohamad Petition insists
that the Court may "look into the wisdom of the [President's] actions, [and] not just the presence of
arbitrariness".54 Further, it asserts that since it is making a negative assertion, then the burden to prove the
sufficiency of the factual basis is shifted to and lies on the respondents. 55 It thus asks the Court "to compel
the [r]espondents to divulge relevant information" 56 in order for it to review the sufficiency of the factual
basis.
In closing, the Mohamad Petition prays for the Court to exercise its power to review, "compel respondents
to present proof on the factual basis [of] the declaration of martial law and the suspension of the privilege of
the writ of habeas corpus in Mindanao"57 and declare as unconstitutional Proclamation No. 216 for lack of
sufficient factual basis.
The Consolidated Comment
The respondents' Consolidated Comment58 was filed on June 12, 2017, as required by the Court. Noting
that the same coincided with the celebration of the 119th anniversary of the independence of this Republic,
the Office of the Solicitor General (OSG) felt that "defending the constitutionality of Proclamation No. 216"
should serve as "a rallying call for every Filipino to unite behind one true flag and defend it against all
threats from within and outside our shores".59
The OSG acknowledges that Section 18, Article VII of the Constitution vests the Court with the authority or
power to review the sufficiency of the factual basis of the declaration of martial law. 60 The OSG, however,
posits that although Section 18, Article VII lays the basis for the exercise of such authority or power, the
same constitutional provision failed to specify the vehicle, mode or remedy through which the "appropriate
proceeding" mentioned therein may be resorted to. The OSG suggests that the "appropriate proceeding"
referred to in Section 18, Article VII may be availed of using the vehicle, mode or remedy of
a certiorari petition, either under Section 1 or 5, of Article VIII. 61 Corollarily, the OSG maintains that the
review power is not mandatory, but discretionary only, on the part of the Court. 62 The Court has the
discretion not to give due course to the petition.63
Prescinding from the foregoing, the OSG contends that the sufficiency of the factual basis of Proclamation
No. 216 should be reviewed by the Court "under the lens of grave abuse of discretion" 64 and not the
yardstick of correctness of the facts. 65Arbitrariness, not correctness, should be the standard in reviewing
the sufficiency of factual basis.
The OSG maintains that the burden lies not with the respondents but with the petitioners to prove that
Proclamation No. 216 is bereft of factual basis. It thus takes issue with petitioners' attempt to shift the
1âwphi1

burden of proof when they asked the Court "to compel [the] respondents to present proof on the factual
basis"66 of Proclamation No. 216. For the OSG, "he who alleges must prove" 67 and that governmental
actions are presumed to be valid and constitutional. 68
Likewise, the OSG posits that the sufficiency of the factual basis must be assessed from the trajectory or
point of view of the President and base on the facts available to him at the time the decision was made. 69 It
argues that the sufficiency of the factual basis should be examined not based on the facts
discovered after the President had made his decision to declare martial law because to do so would subject
the exercise of the President's discretion to an impossible standard. 70It reiterates that the President's
decision should be guided only by the information and data available to him at the time he made the
determination.71 The OSG thus asserts that facts that were established after the declaration of martial law
should not be considered in the review of the sufficiency of the factual basis of the proclamation of martial
law. The OSG suggests that the assessment of after-proclamation facts lies with the President and
Congress for the purpose of determining the propriety of revoking or extending the martial law. The OSG
fears that if the Court considers after-proclamation-facts in its review of the sufficiency of the factual basis
for the proclamation, it would in effect usurp the powers of the Congress to determine whether martial law
should be revoked or extended.72
It is also the assertion of the OSG that the President could validly rely on intelligence reports coming from
the Armed Forces of the Philippines;73 and that he could not be expected to personally determine the
veracity of thecontents of the reports.74 Also, since the power to impose martial law is vested solely on the
President as Commander-in-Chief, the lack of recommendation from the Defense Secretary, or any official
for that matter, will not nullify the said declaration, or affect its validity, or compromise the sufficiency of the
factual basis.
Moreover, the OSG opines that the petitioners miserably failed to validly refute the facts cited by the
President in Proclamation No. 216 and in his Report to the Congress by merely citing news reports that
supposedly contradict the facts asserted therein or by criticizing in piecemeal the happenings in Marawi.
For the OSG, the said news articles are "hearsay evidence, twice removed," 75 and thus inadmissible and
without probative value, and could not overcome the "legal presumption bestowed on governmental acts". 76
Finally, the OSG points out that it has no duty or burden to prove that Proclamation No. 216 has sufficient
factual basis. It maintains that the burden rests with the petitioners. However, the OSG still endeavors to
lay out the factual basis relied upon by the President "if only to remove any doubt as to the constitutionality
of Proclamation No. 216".77
The facts laid out by the OSG in its Consolidated Comment will be discussed in detail in the Court's Ruling.
ISSUES
The issues as contained in the revised Advisory78 are as follows:
1. Whether or not the petitions docketed as G.R. Nos. 231658, 231771, and 231774 are the "appropriate
proceeding" covered by Paragraph 3, Section 18, Article VII of the Constitution sufficient to invoke the
mode of review required of this Court when a declaration of martial law or the suspension of the privilege of
the writ of habeas corpus is promulgated;
2. Whether or not the President in declaring martial law and suspending the privilege of the writ of habeas
corpus:
a. is required to be factually correct or only not arbitrary in his appreciation of facts;

b. is required to obtain the favorable recommendation thereon of the Secretary of National

Defense;

c. is required to take into account only the situation at the time of the proclamation, even if
subsequent events prove the situation to have not been accurately reported;

3. Whether or not the power of this Court to review the sufficiency of the factual basis [of] the proclamation
of martial law or the suspension of the privilege of the writ of habeas corpus is independent of the actual
actions that have been taken by Congress jointly or separately;
4. Whether or not there were sufficient factual [basis] for the proclamation of martial law or the suspension
of the privilege of the writ of habeas corpus;
a. What are the parameters for review?

b. Who has the burden of proof?

c. What is the threshold of evidence?

5. Whether the exercise of the power of judicial review by this Court involves the calibration of graduated
powers granted the President as Commander-in-Chief, namely calling out powers, suspension of the
privilege of the writ of habeas corpus, and declaration of martial law;
6. Whether or not Proclamation No. 216 of 23 May 2017 may be considered, vague and thus null and void:
a. with its inclusion of "other rebel groups;" or

b. since it has no guidelines specifying its actual operational parameters within the entire
Mindanao region;

7. Whether or not the armed hostilities mentioned in Proclamation No. 216 and in the Report of the
President to Congress are sufficient [bases]:
a. for the existence of actual rebellion; or
 b. for a declaration of martial law or the suspension of the privilege of the writ of habeas
corpus in the entire Mindanao 1 region;

8. Whether or not terrorism or acts attributable to terrorism are equivalent to actual rebellion and the
requirements of public safety sufficient to declare martial law or suspend the privilege of the writ of habeas
corpus; and
9. Whether or not nullifying Proclamation No. 216 of 23 May 2017 will:
a. have the effect of recalling Proclamation No. 55 s. 2016; or

b. also nullify the acts of the President in calling out the armed forces to quell lawless violence
in Marawi and other parts of the Mindanao region.

After the oral argument, the parties submitted their respective memoranda and supplemental memoranda.
OUR RULING
I. Locus standi of petitioners.
One of the requisites for judicial review is locus standi, i.e., "the constitutional question is brought before
[the Court] by a party having the requisite 'standing' to challenge it." 79 As a general rule, the challenger
must have "a personal and substantial interest in the case such that he has sustained, or will sustain, direct
injury as a result of its enforcement." 80Over the years, there has been a trend towards relaxation of the rule
on legal standing, a prime example of which is found in Section 18 of Article VII which provides that any
citizen may file the appropriate proceeding to assail the sufficiency of the factual basis of the declaration of
martial law or the suspension of the privilege of the writ of habeas corpus. "[T]he only requisite for standing
to challenge the validity of the suspension is that the challenger be a citizen. He need not even be a
taxpayer."81
Petitioners in the Cullamat Petition claim to be "suing in their capacities as citizens of the
Republic;"82 similarly, petitioners in the Mohamad Petition all claim to be "Filipino citizens, all women, all of
legal [age], and residents of Marawi City". 83 In the Lagman Petition, however, petitioners therein did not
categorically mention that they are suing's citizens but merely referred to themselves as duly elected
Representatives.84 That they are suing in their official capacities as Members of Congress couLd have
elicited a vigorous discussion considering the issuance by the House of Representatives of House
Resolution No. 1050 expressing full support to President Duterte and finding no reason to revoke
Proclamation No. 216. By such resolution, the House of Representatives is declaring that it finds no reason
to review the sufficiency of the factual basis of the martial law declaration, which is in direct contrast to the
views and arguments being espoused by the petitioners in the Lagman Petition. Considering, however, the
trend towards relaxation of the rules on legal standing, as well as the transcendental issues involved in the
present Petitions, the Court will exercise judicial self-restraint 85 and will not venture into this matter. After all,
"the Court is not entirely without discretion to accept a suit which does not satisfy the requirements of
a [bona fide] case or of standing. Considerations paramount to [the requirement of legal standing] could
compel assumption of jurisdiction."86 In any case, the Court can take judicial cognizance of the fact that
petitioners in the Lagman Petition are all citizens of the Philippines since Philippine citizenship is a
requirement for them to be elected as representatives. We will therefore consider them as suing in their
own behalf as citizens of this country. Besides, respondents did not question petitioners' legal standing.
II. Whether or not the petitions are the
"appropriate proceeding" covered by paragraph
3, Section 18, Article VII of the Constitution
sufficient to invoke the mode of review required
by the Court.
All three petitions beseech the cognizance of this Court based on the third paragraph of Section 18, Article
VII (Executive Department) of the 1987 Constitution which provides:
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension
thereof, and must promulgate its decision thereon within thirty days from its filing.

During the oral argument, the petitioners theorized that the jurisdiction of this Court under the third
paragraph of Section 18, Article VII is sui generis.87 It is a special and specific jurisdiction of the Supreme
Court different from those enumerated in Sections 1 and 5 of Article VIII. 88
The Court agrees.
a) Jurisdiction must be
specifically conferred by the
Constitution or by law.
It is settled that jurisdiction over the subject matter is conferred only by the Constitution or by the
law.89 Unless jurisdiction has been specifically conferred by the Constitution or by some legislative act, no
body or tribunal has the power to act or pass upon a matter brought before it for resolution. It is likewise
settled that in the absence of a clear legislative intent, jurisdiction cannot be implied from the language of
the Constitution or a statute.90 It must appear clearly from the law or it will not be held to exist.91
A plain reading of the afore-quoted Section 18, Article VII reveals that it specifically grants authority to the
Court to determine the sufficiency of the factual basis of the proclamation of martial law or suspension of
the privilege of the writ of habeas corpus.
b) "In an appropriate
proceeding" does not refer to a
petition for certiorari filed under
Section 1 or 5 of Article VIII
It could not have been the intention of the framers of the Constitution that the phrase "in an appropriate
proceeding" would refer to a Petition for Certiorari pursuant to Section 1 or Section 5 of Article VIII. The
standard of review in a petition for certiorari is whether the respondent has committed any grave abuse of
discretion amounting to lack or excess of jurisdiction in the performance of his or her functions. Thus, it is
not the proper tool to review the sufficiency of the factual basis of the proclamationor suspension. It must
be emphasized that under Section 18, Article VII, the Court is tasked to review the sufficiency of
the factual basis of the President's exercise of emergency powers. Put differently, if this Court applies the
standard of review used in a petition for certiorari, the same would emasculate its constitutional task under
Section 18, Article VII.
c) Purpose/significance of
Section 18, Article VII is to
constitutionalize the pre-Marcos
martial law ruling in In the Matter of
the Petition for Habeas Corpus of Lansang.
The third paragraph of Section 18, Article VII was inserted by the framers of the 1987 Constitution to
constitutionalize the pre-Marcos martial law ruling of this Court in In the Matter of the Petition for Habeas
Corpus of Lansang,92 to wit: that the factual basis of the declaration of martial law or the suspension of the
privilege of the writ of habeas corpus is not a political question but precisely within the ambit of judicial
review.
"In determining the meaning, intent, and purpose of a law or constitutional provision, the history of the
times out of which it grew and to which it may be rationally supposed to bear some direct relationship, the
evils intended to be remedied, and the good to be accomplished are proper subjects of inquiry." 93 Fr.
Joaquin G. Bernas, S.J. (Fr. Bernas), a member of the Constitutional Commission that drafted the 1987
Constitution, explained:
The Commander-in-Chief provisions of the 1935 Constitution had enabled President Ferdinand Marcos to
impose authoritarian rule on the Philippines from 1972 to 1986. Supreme Court decisions during that
period upholding the actions taken by Mr. Marcos made authoritarian rule part of Philippine constitutional
jurisprudence. The members of the Constitutional Commission, very much aware of these facts, went about
reformulating the Commander-in-Chief powers with a view to dismantling what had been constructed
during the authoritarian years. The new formula included revised grounds for the activation of emergency
powers, the manner of activating them, the scope of the powers, and review of presidential
action.94 (Emphasis supplied)

To recall, the Court held in the 1951 case of Montenegro v. Castaneda95 that the authority to decide
whether there is a state of rebellion requiring the suspension of the privilege of the writ of habeas corpus is
lodged with the President and his decision thereon is final and conclusive upon the courts. This ruling was
reversed in the 1971 case of Lansang where it was held that the factual basis of the declaration of martial
law and the suspension of the privilege of the writ of habeas corpus is not a political question and is within
the ambit of judicial review.96 However, in 1983, or after the declaration of martial law by former President
Ferdinand E. Marcos, the Court, in Garcia-Padilla v. Enrile,97 abandoned the ruling in Lansang and reverted
to Montenegro. According to the Supreme Court, the constitutional power of the President to suspend the
privilege of the writ of habeas corpus is not subject to judicial inquiry.98
Thus, by inserting Section 18 in Article VII which allows judicial review of the declaration of martial law and
suspension of the privilege of the writ of habeas corpus, the framers of the 1987 Constitution in effect
constitutionalized and reverted to the Lansang doctrine.
d) Purpose of Section 18,
Article VII is to provide additional
safeguard against possible abuse by
the President on the exercise of the
extraordinary powers.
Section 18, Article VII is meant to provide additional safeguard against possible abuse by the President in
the exercise of his power to declare martial law or suspend the privilege of the writ of habeas
corpus. Reeling from the aftermath of the Marcos martial law, the framers of the Constitution deemed it
wise to insert the now third paragraph of Section 18 of Article VII. 99 This is clear from the records of the
Constitutional Commission when its members were deliberating on whether the President could proclaim
martial law even without the concurrence of Congress. Thus:
MR. SUAREZ. Thank you, Madam President.

The Commissioner is proposing a very substantial amendment because this means that he is
vesting exclusively unto the President the right to determine the factors which may lead to the
declaration of martial law and the suspension of the writ of habeas corpus. I suppose he has
strong and compelling reasons in seeking to delete this particular, phrase. May we be informed
of his good and substantial reasons?

MR. MONSOD. This situation arises in cases of invasion or rebellion. And in previous
interpellations regarding this phrase, even during the discussions on the Bill of Rights, as I
understand it, the interpretation is a situation of actual invasion or rebellion. In these situations,
the President has to act quickly. Secondly, this declaration has a time fuse. It is only good for a
maximum of 60 days. At the end of 60 days, it automatically terminates. Thirdly, the right of the
judiciary to inquire into the sufficiency of the factual basis of the proclamation always exists,
even during those first 60 days.

MR. SUAREZ. Given our traumatic experience during the past administration, if we give
exclusive right to the President to determine these factors, especially the existence of an
invasion or rebellion and the second factor of determining whether the public safety requires it
or not, may I call the attention of the Gentleman to what happened to us during the past
administration. Proclamation No. 1081 was issued by Ferdinand E. Marcos in his capacity as
President of the Philippines by virtue of the powers vested upon him purportedly under Article
VII, Section 10 (2) of the Constitution, wherein he made this predicate under the "Whereas"
provision:
 Whereas, the rebellion and armed action undertaken by these lawless elements of
the Communists and other armed aggrupations organized to overthrow the
Republic of the Philippines by armed violence and force have assumed the
magnitude of an actual state of war against our people and the Republic of the
Philippines.

And may I also call the attention of the Gentleman to General Order No. 3, also promulgated
by Ferdinand E. Marcos, in his capacity as Commander-in-Chief of all the Armed Forces of the
Philippines and pursuant to Proclamation No. 1081 dated September 21, 1972 wherein he
said, among other things:

Whereas, martial law having been declared because of wanton destruction of lives
and properties, widespread lawlessness and anarchy and chaos and disorder now
prevailing throughout the country, which condition has been brought about by
groups of men who are actively engaged in a criminal conspiracy to seize political
and state power in the Philippines in order to take over the government by force
and violence, the extent of which has now assumed the proportion of an actual war
against our people and the legitimate government ...

And he gave all reasons in order to suspend the privilege of the writ of habeas corpus and
declare martial law in our country without justifiable reason. Would the Gentleman still insist on
the deletion of the phrase 'and, with the concurrence of at least a majority of all the members of
the Congress'?

MR. MONSOD. Yes, Madam President, in the case of Mr.Marcos, he is undoubtedly an

aberration in our history and national consciousness. But given the possibility that there would
be another Marcos, our Constitution now has sufficient safeguards. As I said, it is not really
true, as the Gentleman has mentioned, that there is an exclusive right to determine the factual
basis because the paragraph beginning on line 9 precisely tells us that the Supreme Court
may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual
basis of the proclamation of martial law or the suspension of the privilege of the writ or the
extension thereof and must promulgate its decision on the same within 30 days from its filing.

I believe that there are enough safeguards. The Constitution is supposed to balance the
interests of the country. And here we are trying to balance the public interest in case of
invasion or rebellion as against the rights of citizens. And I am saying that there are enough
safeguards, unlike in 1972 when Mr. Marcos was able to do all those things mentioned. 100

To give more teeth to this additional safeguard, the framers of the 1987 Constitution not only placed the
President's proclamation of martial law or suspension of the privilege of the writ of habeas corpus within the
ambit of judicial review, it also relaxed the rule on standing by allowing any citizen to question before this
Court the sufficiency of the factual basis of such proclamation or suspension. Moreover, the third paragraph
of Section 18, Article VII veritably conferred upon any citizen a demandable right to challenge the
sufficiency of the factual basis of said proclamation or suspension. It further designated this Court as the
reviewing tribunal to examine, in an appropriate proceeding, the sufficiency of the factual basis and to
render its decision thereon within a limited period of 30 days from date of filing.
e) Purpose of Section 18,
Article VII is to curtail the extent of
the powers of the President.
The most important objective, however, of Section 18, Article VII is the curtailment of the extent of the
powers of the Commander-in-Chief. This is the primary reason why the provision was not placed in Article
VIII or the Judicial Department but remained under Article VII or the Executive Department.
During the closing session of the Constitutional Commission's deliberations, President Cecilia Muñoz
Palma expressed her sentiments on the 1987 Constitution. She said:
The executive power is vested in the President of the Philippines elected by the people for a six-year term
with no reelection for the duration of his/her life. While traditional powers inherent in the office of the
President are granted, nonetheless for the first time, there are specific provisions which curtail the extent of
such powers. Most significant is the power of the Chief Executive to suspend the privilege of the writ
of habeas corpus or proclaim martial law.

The flagrant abuse of that power of the Commander-in-Chief by Mr. Marcos caused the
imposition of martial law for more than eight years and the suspension of the privilege of the
writ even after the lifting of martial law in 1981. The new Constitution now provides that those
powers can be exercised only in two cases, invasion or rebellion when public safety demands
it, only for a period not exceeding 60 days, and reserving to Congress the power to revoke
such suspension or proclamation of martial law which congressional action may not be
revoked by the President. More importantly, the action of the President is made subject to
judicial review, thereby again discarding jurisprudence which render[s] the executive action a
political question and beyond the jurisdiction of the courts to adjudicate.

For the first time, there is a provision that the state of martial law does not suspend the
operation of the Constitution nor abolish civil courts or legislative assemblies, or vest
jurisdiction to military tribunals over civilians, or suspend the privilege of the writ. Please forgive
me if, at this point, I state that this constitutional provision vindicates the dissenting opinions I
have written during my tenure in the Supreme Court in the martial law cases. 101

f) To interpret "appropriate
proceeding" as filed under Section 1
of Article VIII would be contrary to
the intent of the Constitution.
To conclude that the "appropriate proceeding" refers to a Petition for Certiorari filed under the expanded
jurisdiction of this Court would, therefore, contradict the clear intention of the framers of the Constitution to
place additional safeguards against possible martial law abuse for, invariably, the third paragraph of
Section 18, Article VII would be subsumed under Section 1 of Article VIII. In other words, the framers of the
Constitution added the safeguard under the third paragraph of Section 18, Article VII on top of the
expanded jurisdiction of this Court.
g) Jurisdiction of the Court is
not restricted to those enumerated in
Sections I and 5 of Article VIII
The jurisdiction of this Court is not restricted to those enumerated in Sections 1 and 5 of Article VIII. For
instance, its jurisdiction to be the sole judge of all contests relating to the election, returns, and
qualifications of the President or Vice-President can be found in the last paragraph of Section 4, Article
VII.102 The power of the Court to review on certiorari the decision, order, or ruling of the Commission on
Elections and Commission on Audit can be found in Section 7, Article IX(A). 103
h) Unique features of the third
paragraph of Section 18, Article VII
make it sui generis.
The unique features of the third paragraph of Section 18, Article VII clearly indicate that it should be treated
as sui generis separate and different from those enumerated in Article VIII. Under the third paragraph of
Section 18, Article VII, a petition filed pursuant therewith will follow a different rule on standing as any
citizen may file it. Said provision of the Constitution also limits the issue to the sufficiency of the factual
basis of the exercise by the Chief Executive of his emergency powers. The usual period for filing pleadings
in Petition for Certiorari is likewise not applicable under the third paragraph of Section 18, Article VII
considering the limited period within which this Court has to promulgate its decision.
A proceeding "[i]n its general acceptation, [is] the form in which actions are to be brought and defended, the
manner of intervening in suits, of conducting them, the mode of deciding them, of opposing judgments, and
of executing."104 In fine, the phrase "in an appropriate proceeding" appearing on the third paragraph of
Section 18, Article VII refers to any action initiated by a citizen for the purpose of questioning the sufficiency
of the factual basis of the exercise of the Chief Executive's emergency powers, as in these cases. It could
be denominated as a complaint, a petition, or a matter to be resolved by the Court.
III. The power of the Court to review the
sufficiency of the factual basis of the
proclamation of martial law or the suspension of
the privilege of the writ of habeas corpus under
Section 18, Article VII of the 1987 Constitution is
independent of the actions taken by Congress.
During the oral argument,105 the OSG urged the Court to give! deference to the actions of the two co-equal
branches of the Government: on' the part of the President as Commander-in-Chief, in resorting to his
extraordinary powers to declare martial law and suspend the privilege of the writ of habeas corpus; and on
the part of Congress, in giving its imprimatur to Proclamation No. 216 and not revoking the same.
The framers of the 1987 Constitution reformulated the scope of the extraordinary powers of the President
as Commander-in-Chief and the review of the said presidential action. In particular, the President's
extraordinary powers of suspending the privilege of the writ of habeas corpus and imposing martial law are
subject to the veto powers of the Court and Congress.
a) The judicial power to review
versus the congressional power to
revoke.
The Court may strike down the presidential proclamation in an appropriate proceeding filed by any citizen
on the ground of lack of sufficient factual basis. On the other hand, Congress may revoke the proclamation
or suspension, which revocation shall not be set aside by the President.
In reviewing the sufficiency of the factual basis of the proclamation or suspension, the Court considers only
the information and data available to the President prior to or at the time of the declaration; it is not allowed
td "undertake an independent investigation beyond the pleadings." 106 On the other hand, Congress may
take into consideration not only data available prior to, but likewise events supervening the declaration.
Unlike the Court I which does not look into the absolute correctness of the factual basis as will be
discussed below, Congress could probe deeper and further; it can delve into the accuracy of the facts
presented before it.
In addition, the Court's review power is passive; it is only initiated by the filing of a petition "in an
appropriate proceeding" by a citizen. On the other hand, Congress' review mechanism is automatic in the
sense that it may be activated by Congress itself at any time after the proclamation or suspension was
made.
Thus, the power to review by the Court and the power to revoke by Congress are not only totally different
but likewise independent from each other although concededly, they have the same trajectory, which is, the
nullification of the presidential proclamation. Needless to say, the power of the Court to review can be
exercised independently from the power of revocation of Congress.
b) The framers of the 1987
Constitution intended the judicial
power to review to be exercised
independently from the congressional
power to revoke.
If only to show that the intent of the framers of the 1987 Constitution was to vest the Court and Congress
with veto powers independently from each other, we quote the following exchange:
MS. QUESADA. Yesterday, the understanding of many was that there would be safeguards that Congress
will be able to revoke such proclamation.
 MR. RAMA. Yes.

MS. QUESADA. But now, if they cannot meet because they have been arrested or that the
Congress has been padlocked, then who is going to declare that such a proclamation was not
warranted?

xxxx

MR. REGALADO. May I also inform Commissioner Quesada that the judiciary is not exactly
just standing by. A petition for a writ of habeas corpus, if the Members are detained, can
immediately be applied for, and the Supreme Court shall also review the factual basis. x x x 107

c) Re-examination of the
Court's pronouncement in Fortun v.
President Macapagal-Arroyo
Considering the above discussion, the Court finds it imperative to re-examine, reconsider, and set aside its
pronouncement in Fortun v. President Macapagal-Arroyo108 to the effect that:
Consequently, although the Constitution reserves to the Supreme Court the power to review the sufficiency
of the factual basis of the proclamation or suspension in a proper suit, it is implicit that the Court must allow
Congress to exercise its own review powers, which is automatic rather than initiated. Only when Congress
defaults in its express duty to defend the Constitution through such review should the Supreme Court step
in as its final rampart. The constitutional validity of the President's proclamation of martial law or
suspension of the writ of habeas corpus is first a political question in the hands of Congress before it
becomes a justiciable one in the hands of the Court.109

xxxx

If the Congress procrastinates or altogether fails to fulfill its duty respecting the proclamation or
suspension within the short time expected of it, then the Court can step in, hear the petitions
challenging the President's action, and ascertain if it has a factual basis. x x x 110

By the above pronouncement, the Court willingly but unwittingly clipped its own power and surrendered the
same to Congress as well as: abdicated from its bounden duty to review. Worse, the Court considered'
itself just on stand-by, waiting and willing to act as a substitute in case Congress "defaults." It is an
aberration, a stray declaration, which must be rectified and set aside in this proceeding. 111
We, therefore, hold that the Court can simultaneously exercise its power of review with, and independently
from, the power to revoke by Congress. Corollary, any perceived inaction or default on the part of Congress
does not deprive or deny the Court of its power to review.
IV. The judicial power to review the sufficiency
of factual basis of the declaration of martial law
or the suspension of the privilege of the writ of
habeas corpus does not extend to the calibration
of the President's decision of which among his
graduated powers he will avail of in a given
situation.
The President as the Commander-in-Chief wields the extraordinary powers of: a) calling out the armed
forces; b) suspending the privilege of the writ of habeas corpus; and c) declaring martial law. 112 These
powers may be resorted to only under specified conditions.
The framers of the 1987 Constitution reformulated the powers of the Commander-in-Chief by revising the
"grounds for the activation of emergency powers, the manner of activating them, the scope of the powers,
and review of presidential action."113
a) Extraordinary powers of the
President distinguished.
Among the three extraordinary powers, the calling out power is the most benign and involves ordinary
police action.114 The President may resort to this extraordinary power whenever it becomes necessary to
prevent or suppress lawless violence, invasion, or rebellion. "[T]he power to call is fully discretionary to the
President;"115 the only limitations being that he acts within permissible constitutional boundaries or in a
manner not constituting grave abuse of discretion. 116 In fact, "the actual use to which the President puts the
armed forces is x x x not subject to judicial review."117
The extraordinary powers of suspending the privilege of the writ of habeas corpus and/or declaring martial
law may be exercised only when there is actual invasion or rebellion, and public safety requires it. The
1987 Constitution imposed the following limits in the exercise of these powers: "(1) a time limit of sixty
days; (2) review and possible revocation by Congress; [and] (3) review and possible nullification by the
Supreme Court."118
The framers of the 1987 Constitution eliminated insurrection, and the phrase "imminent danger thereof' as
grounds for the suspension of the privilege of the writ of habeas corpus or declaration of martial
law.119 They perceived the phrase "imminent danger" to be "fraught with possibilities of abuse;" 120 besides,
the calling out power of the President "is sufficient for handling imminent danger." 121
The powers to declare martial law and to suspend the privilege of the writ of habeas corpus involve
curtailment and suppression of civil rights and individual freedom. Thus, the declaration of martial law
serves as a warning to citizens that the Executive Department has called upon the military to assist in the
maintenance of law and order, and while the emergency remains, the citizens must, under pain of arrest
and punishment, not act in a manner that will render it more difficult to restore order and enforce the
law.122 As such, their exercise requires more stringent safeguards by the Congress, and review by the
Court.123
b) What really happens during martial law?
During the oral argument, the following questions cropped up: What really happens during the imposition of
martial law? What powers could the President exercise during martial law that he could not exercise if there
is no martial law? Interestingly, these questions were also discussed by the framers of the 1987
Constitution, viz.:
FR. BERNAS. That same question was asked during the meetings of the Committee: What precisely does
martial law add to the power of the President to call on the armed forces? The first and second lines in this
provision state:

A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies...

The provision is put there, precisely, to reverse the doctrine of the Supreme Court. I think it is
the case of Aquino v. COMELEC where the Supreme Court said that in times of martial law, the
President automatically has legislative power. So these two clauses denied that. A state of
martial law does not suspend the operation of the Constitution; therefore, it does not suspend
the principle of separation of powers.

The question now is: During martial law, can the President issue decrees? The answer we
gave to that question in the Committee was: During martial law, the President may have the
powers of a commanding general in a theatre of war. In actual war when there is fighting in an
area, the President as the commanding general has the authority to issue orders which have
the effect of law but strictly in a theater of war, not in the situation we had during the period of
martial law. In other words, there is an effort here to return to the traditional concept of martial
law as it was developed especially in American jurisprudence, where martial law has reference
to the theater of war.124
 xxxx

FR. BERNAS. This phrase was precisely put here because we have clarified the meaning of
martial law; meaning, limiting it to martial law as it has existed in the jurisprudence in
international law, that it is a law for the theater of war. In a theater of war, civil courts are unable
to function. If in the actual theater of war civil courts, in fact, are unable to function, then the
military commander is authorized to give jurisdiction even over civilians to military courts
precisely because the civil courts are closed in that area. But in the general area where the
civil courts are open then in no case can the military courts be given jurisdiction over civilians.
This is in reference to a theater of war where the civil courts, in fact, are unable to function.

MR. FOZ. It is a state of things brought about by the realities of the situation in that specified
critical area.

FR. BERNAS. That is correct.

MR. FOZ. And it is not something that is brought about by a declaration of the Commander-in-
Chief.

FR. BERNAS. It is not brought about by a declaration of the Commander-in-Chief. The

understanding here is that the phrase 'nor authorize the conferment of jurisdiction on military
courts and agencies over civilians' has reference to the practice under the Marcos regime
where military courts were given jurisdiction over civilians. We say here that we will never allow
that except in areas where civil courts are, in fact, unable to function and it becomes necessary
for some kind of court to function.125

A state of martial law is peculiar because the President, at such a time, exercises police power, which is
normally a function of the Legislature. In particular, the President exercises police power, with the military’s
assistance, to ensure public safety and in place of government agencies which for the time being are
unable to cope with the condition in a locality, which remains under the control of the State. 126
In David v. President Macapagal-Arroyo,127 the Court, quoting Justice Vicente V. Mendoza's (Justice
Mendoza) Statement before the Senate Committee on Justice on March 13, 2006, stated that under a valid
declaration of martial law, the President as Commander-in-Chief may order the "(a) arrests and seizures
without judicial warrants; (b) ban on public assemblies; (c) [takeover] of news media and agencies and
press censorship; and (d) issuance of Presidential Decrees x x x".128
Worthy to note, however, that the above-cited acts that the President may perform do not give him
unbridled discretion to infringe on the rights of civilians during martial law. This is because martial law does
not suspend the operation of the Constitution, neither does it supplant the operation of civil courts or
legislative assemblies. Moreover, the guarantees under the Bill of Rights remain in place during its
pendency. And in such instance where the privilege of the writ of habeas corpus is also suspended, such
suspension applies only to those judicially charged with rebellion or offenses connected with invasion. 129
Clearly, from the foregoing, while martial law poses the most severe threat to civil liberties, 130 the
Constitution has safeguards against the President's prerogative to declare a state of martial law.
c) "Graduation" of powers
refers to hierarchy based on scope
and effect; it does not refer to a
sequence, order, or arrangement by
which the Commander-in-Chief must
adhere to.
Indeed, the 1987 Constitution gives the "President, as Commander-in- Chief, a 'sequence' of 'graduated
power[s]'. From the most to the least benign, these are: the calling out power, the power to suspend the
privilege of the writ of habeas corpus, and the power to declare martial law." 131 It must be stressed,
however, that the graduation refers only to hierarchy based on scope and effect. It does not in any manner
refer to a sequence, arrangement, or order which the Commander-in-Chief must follow. This so-called
"graduation of powers" does not dictate or restrict the manner by which the President decides which power
to choose.
These extraordinary powers are conferred by the Constitution with the President as Commander-in-Chief; it
therefore necessarily follows that the power and prerogative to determine whether the situation warrants a
mere exercise of the calling out power; or whether the situation demands suspension of the privilege of the
writ of habeas corpus; or whether it calls for the declaration of martial law, also lies, at least initially, with the
President. The power to choose, initially, which among these extraordinary powers to wield in a given set of
conditions is a judgment call on the part of the President. As Commander-in-Chief, his powers are broad
enough to include his prerogative to address exigencies or threats that endanger the government, and the
very integrity of the State.132
It is thus beyond doubt that the power of judicial review does not extend to calibrating the President's
decision pertaining to which extraordinary power to avail given a set of facts or conditions. To do so would
be tantamount to an incursion into the exclusive domain of the Executive and an infringement on the
prerogative that solely, at least initially, lies with the President.
d) The framers of the 1987
Constitution intended the Congress
not to interfere a priori in the
decision-making process of the
President.
The elimination by the framers of the 1987 Constitution of the requirement of prior concurrence of the
Congress in the initial imposition of martial law or suspension of the privilege of the writ of habeas
corpus further supports the conclusion that judicial review does not include the calibration of the President's
decision of which of his graduated powers will be availed of in a given situation. Voting 28 to 12, the
framers of the 1987 Constitution removed the requirement of congressional concurrence in the first
imposition of martial law and suspension of the privilege.133
MR. PADILLA.x x x

We all agree with the suspension of the writ or the proclamation of martial law should not
require beforehand the concurrence of the majority of the Members of the Congress. However,
as provided by the Committee, the Congress may revoke, amend, or shorten or even increase
the period of such suspension.134

xxxx

MR. NATIVIDAD. First and foremost, we agree with the Commissioner's thesis that in the first
imposition of martial law there is no need for concurrence of the Members of Congress
because the provision says 'in case of actual invasion or rebellion.' If there is actual invasion
and rebellion, as Commissioner Crispino de Castro said, there is a need for immediate
response because there is an attack. Second, the fact of securing a concurrence may be
impractical because the roads might be blocked or barricaded. x x x So the requirement of an
initial concurrence of the majority of all Members of the Congress in case of an invasion or
rebellion might be impractical as I can see it.

Second, Section 15 states that the Congress may revoke the declaration or lift the suspension.

And third, the matter of declaring martial law is already a justiciable question and no longer a
political one in that it is subject to judicial review at any point in time. So on that basis, I agree
that there is no need for concurrence as a prerequisite to declare martial law or to suspend the
privilege of the writ of habeas corpus. x x x135
xxxx

MR. SUAREZ. Thank you.

The Commissioner is suggesting that in connection with Section 15, we delete the phrase 'and,
with the concurrence of at least a majority of all the Members of the Congress...'

MR. PADILLA. That is correct especially for the initial suspension of the privilege of the writ
of habeas corpus or also the declaration of martial law.

MR. SUAREZ. So in both instances, the Commissioner is suggesting that this would be an
exclusive prerogative of the President?

MR. PADILLA. At least initially, for a period of 60 days. But even that period of 60 days may be
shortened by the Congress or the Senate because the next sentence says that the Congress
or the Senate may even revoke the proclamation.136

xxxx

MR. SUAREZ. x x x

The Commissioner is proposing a very substantial amendment because this means that he is
vesting exclusively unto the President the right to determine the factors which may lead to the
declaration of martial law and the suspension of the writ of habeas corpus. I suppose he has
strong and compelling reasons in seeking to delete this particular phrase. May we be informed
of his good and substantial reasons?

MR. MONSOD. This situation arises in cases of invasion or rebellion. And in previous
interpellations regarding this phrase, even during the discussions on the Bill of Rights, as I
understand it, the interpretation is a situation of actual invasion or rebellion. In these situations,
the President has to act quickly. Secondly, this declaration has a time fuse. It is only good for a
maximum of 60 days. At the end of 60 days, it automatically terminates. Thirdly, the right of the
judiciary to inquire into the sufficiency of the factual basis of the proclamation always exists,
even during those first 60 days.

xxxx

MR. MONSOD. Yes, Madam President, in the case of Mr. Marcos[,] he is undoubtedly an
aberration in our history and national consciousness. But given the possibility that there would
be another Marcos, our Constitution now has sufficient safeguards. As I said, it is not really
true, as the Gentleman mentioned, that there is an exclusive right to determine the factual
basis because the paragraph being on line 9 precisely tells us that the Supreme court may
review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of
the proclamation of martial law or the suspension of the privilege of the writ or the extension
thereof and must promulgate its decision on the same within 30 days from its filing.

I believe that there are enough safeguards. The Constitution is supposed to balance the
interests of the country. And here we are trying to balance the public interest in case of
invasion or rebellion as against the rights of citizens. x x x

MR. SUAREZ. Will that prevent a future President from doing what Mr. Marcos had done?
 MR. MONSOD. There is nothing absolute in this world, and there may be another Marcos.
What we are looking for are safeguards that arereasonable and, I believe, adequate at this
point. On the other hand, in case of invasion or rebellion, even during the first 60 days when
the intention here is to protect the country in that situation, it would be unreasonable to ask that
there should be a concurrence on the part of the Congress, which situation is automatically
terminated at the end of such 60 days.

xxxx

MR. SUAREZ. Would the Gentleman not feel more comfortable if we provide for a legislative
check on this awesome power of the Chief Executive acting as Commander-in-Chief?

MR. MONSOD. I would be less comfortable if we have a presidency that cannot act under
those conditions.

MR. SUAREZ. But he can act with the concurrence of the proper or appropriate authority?

MR. MONSOD. Yes. But when those situations arise, it is very unlikely that the concurrence of
Congress would be available; and, secondly, the President will be able to act quickly in order to
deal with the circumstances.

MR. SUAREZ. So, we would be subordinating actual circumstances to expediency?

MR. MONSOD. I do not believe it is expediency when one is trying to protect the country in the
event of an invasion or a rebellion.137

The foregoing exchange clearly manifests the intent of the Constitution not to allow Congress to interfere a
priori in the President's choice of extraordinary powers.
e) The Court must similarly
and necessarily refrain from
calibrating the President's decision of
which among his extraordinary
powers to avail given a certain
situation or condition.
It cannot be overemphasized that time is paramount in situations necessitating the proclamation of martial
law or suspension of the privilege of the writ of habeas corpus. It was precisely this time element that
prompted the Constitutional Commission to eliminate the requirement of 1 concurrence of the Congress in
the initial imposition by the President of martial law or suspension of the privilege of the writ of habeas
corpus.
Considering that the proclamation of martial law or suspension of the privilege of the writ of habeas
corpus is now anchored on actual invasion or rebellion and when public safety requires it, and is no longer
under threat or in imminent danger thereof, there is a necessity and urgency for the President to act quickly
to protect the country.138 The Court, as Congress does, must thus accord the President the same leeway by
not wading into the realm that is reserved exclusively by the Constitution to the Executive Department.
j) The recommendation of the
Defense Secretary is not a condition
for the declaration of martial law or
suspension of the privilege of the writ
of habeas corpus.
Even the recommendation of, or consultation with, the Secretary of National Defense, or other high-ranking
military officials, is not a condition for the President to declare martial law. A plain reading of Section 18,
Article VII of the Constitution shows that the President's power to declare martial law is not subject to any
condition except for the requirements of actual invasion or rebellion and that public safety requires it.
Besides, it would be contrary to common sense if the decision of the President is made dependent on the
recommendation of his mere alter ego. Rightly so, it is only on the President and no other that the exercise
of the powers of the Commander-in-Chief under Section 18, Article VII of the Constitution is bestowed.
g) In any event, the President
initially employed the most benign
action - the calling out power -
before he declared martial law and
suspended the privilege of the writ of
habeas corpus.
At this juncture, it must be stressed that prior to Proclamation No. 216 or the declaration of martial law on
May 23, 201 7, the President had already issued Proclamation No. 55 on September 4, 2016, declaring a
state of national emergency on account of lawless violence in Mindanao. This, in fact, is extant in the first
Whereas Clause of Proclamation No. 216. Based on the foregoing presidential actions, it can be gleaned
that although there is no obligation or requirement on his part to use his extraordinary powers on a
graduated or sequential basis, still the President made the conscious anddeliberate effort to first employ
the most benign from among his extraordinary powers. As the initial and preliminary step towards
suppressing and preventing the armed hostilities in Mindanao, the President decided to use his calling out
power first. Unfortunately, the situation did not improve; on the contrary, it only worsened. Thus, exercising
his sole and exclusive prerogative, the President decided to impose martial law and suspend the privilege
of the writ of habeas corpus on the belief that the armed hostilities in Mindanao already amount to actual
rebellion and public safety requires it.
V. Whether or not Proclamation No. 216 may
be considered vague and thus void because of (a)
its inclusion of "other rebel groups"; and (b) the
absence of any guideline specifying its actual
operational parameters within the entire
Mindanao region.
Proclamation No. 216 is being facially challenged on the ground of "vagueness" by the insertion of the
phrase "other rebel groups"139 in its Whereas Clause and for lack of available guidelines specifying its
actual operational parameters within the entire Mindanao region, making the proclamation susceptible to
broad interpretation, misinterpretation, or confusion.
This argument lacks legal basis.
a) Void-for-vagueness doctrine.
The void-for-vagueness doctrine holds that a law is facially invalid if "men of common intelligence must
necessarily guess at its meaning and differ as to its application." 140 "[A] statute or act may be said to be
vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at
its meaning and differ in its application. [In such instance, the statute] is repugnant to the Constitution in
two 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." 141
b) Vagueness doctrine applies
only in free speech cases.
The vagueness doctrine is an analytical tool developed for testing "on their faces" statutes in free speech
cases or, as they are called in American law, First Amendment cases. 142 A facial challenge is allowed to be
made to a vague statute and also to one which is overbroad because of possible "'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." 143
It is best to stress that the vagueness doctrine has a special application only to free-speech cases. They
are not appropriate for testing the validity of penal statutes. 144 Justice Mendoza explained the reason as
follows:
A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of
possible 'chilling effect' upon protected speech. The theory is that ' [w]hen statutes regulate or proscribe
speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a
single prosecution, the transcendent value to all society of constitutionally protected expression is deemed
to justify allowing attacks on overly broad statutes with no requirement that the person making the attack
demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity.' The
possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the
possibility that the protected speech of others may be deterred and perceived grievances left to fester
because of possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in
terrorem effect resulting from their very existence, and, if facial challenge is allowed for this
reason alone, the State may well be prevented from enacting laws against socially harmful
conduct. In the area of criminal law, the law cannot take chances as in the area of free speech.

xxxx

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools
developed for testing 'on their faces' statutes in free speech cases or, as they are called in
American law, First Amendment cases. They cannot be made to do service when what is
involved is a criminal statute. With respect to such statute, the established rule is that'one to
whom application of a statute is constitutional will not be heard to attack the statute on the
ground that impliedly it might also be taken as applying to other persons or other situations in
which its application might be unconstitutional.' As has been pointed out, 'vagueness
challenges in the First Amendment context, like overbreadth challenges typically produce facial
invalidation, while statutes found vague as a matter of due process typically are invalidated
[only] 'as applied' to a particular defendant.' x x x145

Invalidation of statutes "on its face" should be used sparingly because it results in striking down statutes
entirely on the ground that they might beapplied to parties not before the Court whose activities are
constitutionally protected.146 "Such invalidation would constitute a departure from the usual requirement of
'actual case and controversy' and permit decisions to be made in a sterile abstract context having no
factual concreteness."147
c) Proclamation No. 216
cannot be facially challenged using
the vagueness doctrine.
Clearly, facial review of Proclamation No. 216 on the grounds of vagueness is unwarranted. Proclamation
No. 216 does not regulate speech, religious freedom, and other fundamental rights that may be facially
challenged.148 What it seeks to penalize is conduct, not speech.
As held by the Court in David v. President Macapagal-Arroyo,149 the facial review of Proclamation No.
1017, issued by then President Gloria Macapagal-Arroyo declaring a state of national emergency, on
ground o vagueness is uncalled for since a plain reading of Proclamation No. 10171 shows that it is not
primarily directed at speech or even speech-related1 conduct. It is actually a call upon the Armed Forces of
the Philippines (AFP) to prevent or suppress all forms of lawless violence. Like Proclamation No. 1017,
Proclamation No. 216 pertains to a spectrum of conduct, not free speech, which is manifestly subject to
state regulation.
d) Inclusion of "other rebel
groups " does not make Proclamation
No.216 vague.
The contention that the phrase "other rebel groups" leaves Proclamation No. 216 open to broad
interpretation, misinterpretation, and confusion, cannot be sustained.
In People v. Nazario,150 the Court enunciated that:

As a rule, a statute or act may be said to be vague when it lacks comprehensible standards
that men 'of common intelligence must necessarily guess at its meaning and differ as to its
application.' It is repugnant to the Constitution in two respects: (1) it violates due process for
failure to accord persons, especially the parties targetted 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.

But the act must be utterly vague on its face, that is to say, it cannot be clarified by either a
saving clause or by construction. Thus, in Coates v. City of Cincinnati, the U.S. Supreme Court
struck down an ordinance that had made it illegal for 'three or more persons to assemble on
any sidewalk and there conduct themselves in a manner annoying to persons passing by.'
Clearly, the ordinance imposed no standard at all 'because one may never know in advance
what annoys some people but does not annoy others.'

Coates highlights what has been referred to as a 'perfectly vague' act whose obscurity is
evident on its face. It is to be distinguished, however, from legislation couched in imprecise
language - but which nonetheless specifies a standard though defectively phrased - in which
case, it may be 'saved' by proper construction.151

The term "other rebel groups" in Proclamation No. 216 is not at all vague when viewed in the context of the
words that accompany it. Verily, the text of Proclamation No. 216 refers to "other rebel groups" found in
Proclamation No. 55, which it cited by way of reference in its Whereas clauses.
e) Lack of guidelines/
operational parameters does not
make Proclamation No. 216 vague.
Neither could Proclamation No. 216 be described as vague, and thus void, on the ground that it has no
guidelines specifying its actual operational parameters within the entire Mindanao region. Besides,
operational guidelines will serve only as mere tools for the implementation of the proclamation. In Part III,
we declared that judicial review covers only the sufficiency of information or data available to or known to
the President prior to, or at the time of, the declaration or suspension. And, as will be discussed
exhaustively in Part VII, the review will be confined to the proclamation itself and the Report submitted to
Congress.
Clearly, therefore, there is no need for the Court to determine the constitutionality of the implementing
and/or operational guidelines, general orders, arrest orders and other orders issued after the proclamation
for being irrelevant to its review. Thus, any act committed under the said orders in violation of the
Constitution and the laws, such as criminal acts or human rights violations, should be resolved in a
separate proceeding. Finally, there is a risk that if the Court wades into these areas, it would be deemed as
trespassing into the sphere that is reserved exclusively for Congress in the exercise of its power to revoke.
VI. Whether or not nullifying Proclamation No.
216 will (a) have the effect of recalling
Proclamation No. 55; or (b) also nullify the acts
of the President in calling out the armed forces to
quell lawless violence in Marawi and other parts
of the Mindanao region.
a) The calling out power is in a
different category from the power to
declare martial law and the power to
suspend the privilege of the writ of
habeas corpus; nullification of
Proclamation No. 216 will not affect
Proclamation No. 55.
The Court's ruling in these cases will not, in any way, affect the President's declaration of a state of national
emergency on account of lawless violence in Mindanao through Proclamation No. 55 dated September 4,
2016, where he called upon the Armed Forces and the Philippine National 1 Police (PNP) to undertake
such measures to suppress any and all forms of lawless violence in the Mindanao region, and to prevent
such lawless violence from spreading and escalating elsewhere in the Philippines.
In Kulayan v. Tan,152 the Court ruled that the President's calling out power is in a different category from the
power to suspend the privilege of the writ of habeas corpus and the power to declare martial law:
x x x Congress may revoke such proclamation or suspension and the Court may review the sufficiency of
the factual basis thereof. However, there is no such equivalent provision dealing with the revocation or
review of the President's action to call out the armed forces. The distinction places the calling out power in
a different category from the power to declare martial law and the power to suspend the privilege of the writ
of habeas corpus, otherwise, the framers of the Constitution would have simply lumped together the three
powers and provided for their revocation and review without any qualification. 153

In other words, the President may exercise the power to call out the Armed Forces independently of the
power to suspend the privilege of the writ of habeas corpus and to declare martial law, although, of course,
it may also be a prelude to a possible future exercise of the latter powers, as in this case.
Even so, the Court's review of the President's declaration of martial law and his calling out the Armed
Forces necessarily entails separate proceedings instituted for that particular purpose.
As explained in Integrated Bar of the Philippines v. Zamora, 154 the President's exercise of his power to call
out the armed forces to prevent or suppress lawless violence, invasion or rebellion may only be examined
by the Court as to whether such power was exercised within permissible constitutional limits or in a manner
constituting grave abuse of discretion.155
In Zamora, the Court categorically ruled that the Integrated Bar of the ' Philippines had failed to sufficiently
comply with the requisites of locus standi, as it was not able to show any specific injury which it had
suffered or could suffer by virtue of President Joseph Estrada's order deploying the Philippine Marines to
join the PNP in visibility patrols around the metropolis. 156
This locus standi requirement, however, need not be complied with in so far as the Court's jurisdiction to
review the sufficiency of the factual basis of the President's declaration of martial law or suspension of the
privilege ofthe writ of habeas corpus is concerned. In fact, by constitutional design, such review may be
instituted by any citizen before the Court,157 without the need to prove that he or she stands to sustain a
direct and personal injury as a consequence of the questioned Presidential act/s.
But, even assuming arguendo that the Court finds no sufficient basis for the declaration of martial law in
this case, such ruling could not affect the President's exercise of his calling out power through Proclamation
No. 55.
b) The operative fact doctrine.
Neither would the nullification of Proclamation No. 216 result in the nullification of the acts of the President
done pursuant thereto. Under the "operative fact doctrine," the unconstitutional statute is recognized as an
"operative fact" before it is declared unconstitutional.158
Where the assailed legislative or executive act is found by the judiciary to be contrary to the Constitution, it
is null and void. 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 or the Constitution.' The above
provision of the Civil Code reflects the orthodox view that an unconstitutional act, whether legislative or
executive, is not a law, confers no rights, imposes no duties, and affords no protection. This doctrine admits
of qualifications, however. As the American Supreme Court stated: 'The actual existence of a statute prior
to such a determination [of constitutionality], is an operative fact and may have consequences which
cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to the
invalidity may have to be considered in various aspects, - with respect to particular regulations, individual
and corporate, and particular conduct, private and official.

The orthodox view finds support in the well-settled doctrine that the Constitution is supreme
and provides the measure for the validity of legislative or executive acts. Clearly then, neither
the legislative nor the executive branch, and for that matter much less, this Court, has power
under the Constitution to act contrary to its terms. Any attempted exercise of power in violation
of its provisions is to that extent unwarranted and null.

The growing awareness of the role of the judiciary as the governmental organ which has the
final say on whether or not a legislative or executive measure is valid leads to a more
appreciative attitude of theemerging concept that a declaration of nullity may have legal
consequences which the more orthodox view would deny. That for a period of time such a
statute, treaty, executive order, or ordinance was in 'actual existence' appears to be
indisputable. What is more appropriate and logical then than to consider it as 'an operative
fact?' (Emphasis supplied)159

However, it must also be stressed that this "operative fact doctrine" is not a fool-proof shield that would
repulse any challenge to acts performed during the effectivity of martial law or suspension of the privilege
of the writ of habeas corpus, purportedly in furtherance of quelling rebellion or invasion, and promotion of
public safety, when evidence shows otherwise.
VII. The Scope of the Power to Review.
a) The scope of the power of
review under the 1987 Constitution
refers only to the determination of the
sufficiency of the factual basis of the
declaration of martial law and
suspension of the privilege of habeas
corpus.
To recall, the Court, in the case of In the Matter of the Petition for Habeas Corpus of Lansang, 160 which was
decided under the 1935 Constitution, 161 held that it can inquire into, within proper bounds, whether there
has been adherence to or compliance with the constitutionally-imposed limitations on the Presidential
power to suspend the privilege of the writ of habeas corpus.162 "Lansang limited the review function of the
Court to a very prudentially narrow test of arbitrariness." 163Fr. Bernas described the "proper bounds"
in Lansang as follows:
What, however, are these 'proper bounds' on the power of the courts? The Court first gave the general
answer that its power was 'merely to check - not to supplant - the Executive, or to ascertain merely whether
he has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to
determine the wisdom of his act. More specifically, the Court said that its power was not 'even comparable
with its power over civil or criminal cases elevated thereto by appeal...in which cases the appellate court
has all the powers of the courtof origin,' nor to its power of quasi-judicial administrative decisions where the
Court is limited to asking whether 'there is some evidentiary basis' for the administrative finding. Instead,
the Court accepted the Solicitor General's suggestion that it 'go no further than to satisfy [itself] not that the
President's decision is correct and that public safety was endangered by the rebellion and justified the
suspension of the writ, but that in suspending the writ, the President did not act arbitrarily.' 164

Lansang, however, was decided under the 1935 Constitution. The 1987 Constitution, by providing only for
judicial review based on the determination of the sufficiency of the factual bases, has in fact done away
with the test of arbitrariness as provided in Lansang.
b) The "sufficiency of factual
basis test".
Similarly, under the doctrine of contemporaneous construction, the framers of the 1987 Constitution are
presumed to know the prevailing jurisprudence at the time they were drafting the Constitution. Thus, the
phrase "sufficiency of factual basis" in Section 18, Article VII of the Constitution should be understood as
the only test for judicial review of the President's power to declare martial law and suspend the privilege of
the writ of habeas corpus under Section 18, Article VII of the Constitution. The Court does not need to
satisfy itself that the President's decision is correct, rather it only needs to determine whether the
President's decision had sufficient factual bases.
We conclude, therefore, that Section 18, Article VII limits the scope of judicial review by the introduction of
the "sufficiency of the factual basis" test.
As Commander-in-Chief, the President has the sole discretion to declare martial law and/or to suspend the
privilege of the writ of habeas corpus, subject to the revocation of Congress and the review of this Court.
Since the exercise of these powers is a judgment call of the President, the determination of this Court as to
whether there is sufficient factual basis for the exercise of such, must be based only on facts or information
known by or available to the President at the time he made the declaration or suspension, which facts or
information are found in the proclamation as well as the written Report submitted by him to Congress.
These may be based on the situation existing at the time the declaration was made or past events. As to
how far the past events should be from the present depends on the President.
Past events may be considered as justifications for the declaration and/or suspension as long as these are
connected or related to the current situation existing at the time of the declaration.
As to what facts must be stated in the proclamation and the written Report is up to the President. 165 As
Commander-in-Chief, he has sole discretion to determine what to include and what not to include in the
proclamation and the written Report taking into account the urgency of the situation as well as national
security. He cannot be forced to divulge intelligence reports and confidential information that may prejudice
the operations and the safety of the military.
Similarly, events that happened after the issuance of the proclamation, which are included in the written
report, cannot be considered in determining the sufficiency of the factual basis of the declaration of martial
law and/or the suspension of the privilege of the writ of habeas corpus since these happened after the
President had already issued the proclamation. If at all, they may be used only as tools, guides or
reference in the Court's determination of the sufficiency of factual basis, but not as part or component of
the portfolio of the factual basis itself.
In determining the sufficiency of the factual basis of the declaration and/or the suspension, the Court
should look into the full complement or totality of the factual basis, and not piecemeal or individually.
Neither should the Court expect absolute correctness of the facts stated in the proclamation and in the
written Report as the President could not be expected to verify the accuracy and veracity of all facts
reported to him due to the urgency of the situation. To require precision in the President's appreciation of
facts would unduly burden him and therefore impede the process of his decision-making. Such a
requirement will practically necessitate the President to be on the ground to confirm the correctness of the
reports submitted to him within a period that only the circumstances obtaining would be able to dictate.
Such a scenario, of course, would not only place the President in peril but would also defeat the very
purpose of the grant of emergency powers upon him, that is, to borrow the words of Justice Antonio T.
Carpio in Fortun, to "immediately put an end to the root cause of the emergency". 166 Possibly, by the time
the President is satisfied with the correctness of the facts in his possession, it would be too late in the day
as the invasion or rebellion could have already escalated to a level that is hard, if not impossible, to curtail.
Besides, the framers of the 1987 Constitution considered intelligence reports of military officers as credible
evidence that the President ca appraise and to which he can anchor his judgment, 167 as appears to be the
case here.
At this point, it is wise to quote the pertinent portions of the Dissenting Opinion of Justice Presbitero J.
Velasco Jr. in Fortun:
President Arroyo cannot be blamed for relying upon the information given to her by the Armed Forces of the
Philippines and the Philippine National Police, considering that the matter of the supposed armed uprising
was within their realm of competence, and that a state of emergency has also been declared in Central
Mindanao to prevent lawless violence similar to the 'Maguindanao massacre,' which may be an indication
that there is a threat to the public safety warranting a declaration of martial law or suspension of the writ.

Certainly, the President cannot be expected to risk being too late before declaring martial law
or suspending the writ of habeas corpus. The Constitution, as couched, does not require
precision in establishing the fact of rebellion. The President is called to act as public safety
requires.168

Corollary, as the President is expected to decide quickly on whether there is a need to proclaim martial law
even only on the basis of intelligence reports, it is irrelevant, for purposes of the Court's review, if
subsequent events prove that the situation had not been accurately reported to him.
After all, the Court's review is confined to the sufficiency, not accuracy, of the information at hand during the
declaration or suspension; subsequent events do not have any bearing insofar as the Court's review is
concerned. In any event, safeguards under Section 18, Article VII of the Constitution are in place to cover
such a situation, e.g., the martial law period is good only for 60 days; Congress may choose to revoke it
even immediately after the proclamation is made; and, this Court may investigate the factual background of
the declaration.169
Hence, the maxim falsus in uno, falsus in omnibus finds no application in this case. Falsities of and/or
inaccuracies in some of the facts stated in the proclamation and the written report are not enough reasons
for the Court to invalidate the declaration and/or suspension as long as there are other facts in the
proclamation and the written Report that support the conclusion that there is an actual invasion or rebellion
and that public safety requires the declaration and/or suspension.
In sum, the Court's power to review is limited to the determination of whether the President in declaring
martial law and suspending the privilege of the writ of habeas corpus had sufficient factual basis. Thus, our
review would be limited to an examination on whether the President acted within the bounds set by the
Constitution, i.e., whether the facts in his possession prior to and at the time of the declaration or
suspension are sufficient for him to declare martial law or suspend the privilege of the writ of habeas
corpus.
VIII. The parameters for determining the
sufficiency of the/actual basis/or the declaration
of martial law and/or the suspension of the
privilege of the writ of habeas corpus.
a) Actual invasion or rebellion,
and public safety requirement.
Section 18, Article VII itself sets the parameters for determining the sufficiency of the factual basis for the
declaration of martial law and/or the suspension of the privilege of the writ of habeas corpus, "namely (1)
actual invasion or rebellion, and (2) public safety requires the exercise of such power." 170 Without the
concurrence of the two conditions, the President's declaration of martial law and/or suspension of the
privilege of the writ of habeas corpus must be struck down.
As a general rule, a word used in a statute which has a technical or legal meaning, is construed to have the
same technical or legal meaning. 171 Since the Constitution did not define the term "rebellion," it must be
understood to have the same meaning as the crime of "rebellion" in the Revised Penal Code (RPC). 172
During the July 29, 1986 deliberation of the Constitutional Commission of 1986, then Commissioner
Florenz D. Regalado alluded to actual rebellion as one defined under Article 134 of the RPC:
MR. DE LOS REYES. As I see it now, the Committee envisions actual rebellion and no longer imminent
rebellion. Does the Committee mean that there should be actual shooting or actual attack on the legislature
or Malacañang, for example? Let us take for example a contemporary event - this Manila Hotel incident,
everybody knows what happened. Would the Committee consider that an actual act of rebellion?

MR. REGALADO. If we consider the definition of rebellion under Articles 134 and 135 of the
Revised Penal Code, that presupposes an actual assemblage of men in an armed public
 uprising for the purposes mentioned in Article 134 and by the means employed under Article
135. x x x173

Thus, rebellion as mentioned in the Constitution could only refer to rebellion as defined under Article 134 of
the RPC. To give it a different definition would not only create confusion but would also give the President
wide latitude of discretion, which may be abused - a situation that the Constitution see k s to prevent. 174
Article 134 of the RPC states:

Art. 134. Rebellion or insurrection; How committed. - The crime of rebellion or insurrection is
committed by rising publicly and taking arms against the Government for the purpose of
removing from the allegiance to said Government or its laws, the territory of the Philippine
Islands or any part thereof, of any body of land, naval or other armed forces, depriving the
Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.

Thus, for rebellion to exist, the following elements must be present, to wit: "(l) there is a (a) public uprising
and (b) taking arms against the Government; and (2) the purpose of the uprising or movement is either (a)
to remove from the allegiance to the Government or its laws: (i) the territory of the Philippines or any part
thereof; or (ii) any body of land, naval, or other armed forces; or (b) to deprive the Chief Executive or
Congress, wholly or partially, of any of their powers and prerogatives."175
b) Probable cause is the
allowable standard of proof for the
President.
In determining the existence of rebellion, the President only needs to convince himself that there is
probable cause or evidence showing that more likely than not a rebellion was committed or is being
committed.176 To require him to satisfy a higher standard of proof would restrict the exercise of his
emergency powers. Along this line, Justice Carpio, in his Dissent in Fortun v. President Macapagal-
Arroyo, concluded that the President needs only to satisfy probable cause as the standard of proof in
determining the existence of either invasion or rebellion for purposes of declaring martial law, and that
probable cause is the most reasonable, most practical and most expedient standard by which the President
can fully ascertain the existence or non-existence of rebellion necessary for a declaration of martial law or
suspension of the writ. This is because unlike other standards of proof, which, in order to be met, would
require much from the President and therefore unduly restrain his exercise of emergency powers, the
requirement of probable cause is much simpler. It merely necessitates an "average man [to weigh] the facts
and circumstances without resorting to the calibration of the rules of evidence of which he has no technical
knowledge. He [merely] relies on common sense [and] x x x needs only to rest on evidence showing that,
more likely than not, a crime has been committed x x x by the accused." 177
To summarize, the parameters for determining the sufficiency of factual basis are as follows: l) actual
rebellion or invasion; 2) public safety requires it; the first two requirements must concur; and 3) there is
probable cause for the President to believe that there is actual rebellion or invasion.
Having laid down the parameters for review, the Court shall nowproceed to the core of the controversy -
whether Proclamation No. 216,Declaring a State of Martial Law and Suspending the Privilege of the Writ
of Habeas Corpus in the whole of Mindanao, lacks sufficient factual basis.
IX. There is sufficient factual basis for the
declaration of martial law and the suspension of
the writ of habeas corpus.
At this juncture, it bears to emphasize that the purpose of judicial review is not the determination of
accuracy or veracity of the facts upon which the President anchored his declaration of martial law or
suspension of the privilege of the writ of habeas corpus; rather, only the sufficiency of the factual basis as
to convince the President that there is probable cause that rebellion exists. It must also be reiterated that
martial law is a matter ofurgency and much leeway and flexibility should be accorded the President. As
such, he is not expected to completely validate all the information he received before declaring martial law
or suspending the privilege of the writ of habeas corpus.
We restate the elements of rebellion for reference:

1. That there be (a) public uprising, and (b) taking up arms against the Government; and

2. That the purpose of the uprising or movement is either: (a) to remove from the allegiance to
said Government or its laws the territory of the Philippines or any part thereof, or any body of
land, naval or other armed forces or (b) to deprive the Chief Executive or Congress, wholly or
partially, of any of their powers or prerogatives.178

Petitioners concede that there is an armed public uprising in Marawi City. 179 However, they insist that the
armed hostilities do not constitute rebellion in the absence of the element of culpable political
purpose, i.e., the removal from the allegiance to the Philippine Government or its laws: (i) the territory of the
Philippines or any part thereof; or (ii) any body of land, naval, or other armed forces; or (b) to deprive the
Chief Executive or Congress, wholly or partially, of any of their powers and prerogatives.
The contention lacks merit.
a) Facts, events and
information upon which the President
anchored his decision to declare
martial law and suspend the privilege
of the writ of habeas corpus.
Since the President supposedly signed Proclamation No. 216 on May 23, 2017 at 10:00 PM, 180 the Court
will consider only those facts and/or events which were known to or have transpired on or before that time,
consistent with the scope of judicial review. Thus, the following facts and/or events were deemed to have
been considered by the President in issuing Proclamation No. 216, as plucked from and extant in
Proclamation No. 216 itself:
1. Proclamation No. 55 issued on September 4, 2016, declaring a state of national emergency on account
of lawless violence in Mindanao;181

2. Series of violent acts182 committed by the Maute terrorist group including:

a) Attack on the military outpost in Butig, Lanao del Sur m February 2016, killing and
wounding several soldiers;

b) Mass jailbreak in Marawi City in August 2016 of the arrested comrades of the Maute
Group and other detainees;

3. On May 23, 2017:183

a) Takeover of a hospital in Marawi;

b) Establishment of several checkpoints within Marawi;

c) Burning of certain government and private facilities;

d) Mounting casualties on the part of the government;

e) Hoisting the flag of ISIS in several areas; and

f) Capability of the Maute Group and other rebel groups to sow terror, and cause
death and damage to property not only in Lanao del Sur but also in other parts of
Mindanao; and the Report184 submitted to Congress:
1. Zamboanga siege;185

2. Davao bombing;186

3. Mamasapano carnage;187

4. Cotabato bombings;188

5. Sultan Kudarat bombings;189

6. Sulu bombings;190

7. Basilan bombings;191

8. Attempt to capture Hapilon was confronted with armed resistance

by combined forces of ASG and the Maute Group;192

9. Escalation of armed hostility against the government troops;193

10. Acts of violence directed not only against government authorities

and establishments but civilians as well;194

11. Takeover of major social, economic and political foundations which

paralyzed Marawi City;195

12. The object of the armed hostilities was to lay the groundwork for
the establishment of a DAESH/ISIS wilayat or province;196

13. Maute Group has 263 active members, armed and combat-
ready;197

14. Extensive networks or linkages of the Maute Group with foreign

and local armed groups;198

15. Adherence of the Maute Group to the ideals espoused by ISIS;199

16. Publication of a video showing Maute Group's declaration of

allegiance to ISIS;200

17. Foreign-based terrorist groups provide financial and logistical

support to the Maute Group;201

18. Events on May 23, 2017 in Marawi City, particularly:

a) at 2:00 PM, members and sympathizers of the Maute

Group and ASG attacked various government and
privately-owned facilities;202

b) at 4:00 PM, around fifty (50) armed criminals forcibly

entered the Marawi City Jail; facilitated the escape of
inmates; killed a member of PDEA; assaulted and
disarmed on-duty personnel and/or locked them inside the
cells; confiscated cellphones, personnel-issued firearms,
and vehicles;203

c) by 4:30 PM, intem1ption of power supply; sporadic

gunfights; city-wide power outage by evening;204

d) from 6:00 PM to 7:00 PM, Maute Group ambushed and

burned the Marawi Police Station; commandeered a
police car;205

e) BJMP personnel evacuated the Marawi City Jail and

other affected areas;206

f) control over three bridges in Lanao del Sur, namely,

Lilod, Bangulo, and Sauiaran, was taken by the rebels;207

g) road blockades and checkpoints set up by lawless

armed groups at the Iligan-Marawi junction;208

h) burning of Dansalan College Foundation, Cathedral of

Maria Auxiliadora, the nuns' quarters in the church, and
the Shia Masjid Moncado Colony;209

i) taking of hostages from the church;210

j) killing of five faculty members of Dansalan College

foundation;211

k) burning of Senator Ninoy Aquino College Foundation

and Marawi Central Elementary Pilot School;212

1) overrunning of Amai Pakpak Hospital;213

m) hoisting the ISIS flag in several areas;214

n) attacking and burning of the Filipino-Libyan Friendship

Hospital;215

o) ransacking of a branch of Landbank of the Philippines

and commandeering an armored vehicle;216

p) reports regarding Maute Group's plan to execute

Christians;217

q) preventing Maranaos from leaving their homes;218

r) forcing young Muslims to join their group;219 and

s) intelligence reports regarding the existence of strategic

mass action of lawless armed groups in Marawi City,
seizing public and private facilities, perpetrating killings of
government personnel1 , and committing armed uprising
against and open defiance of the Government.220
b) The President's Conclusion
After the assessment by the President of the aforementioned facts, he arrived at the following conclusions,
as mentioned in Proclamation No. 216 and the Report:
1) The Maute Group is "openly attempting to remove from the allegiance to the Philippine Government this
part of Mindanao and deprive the Chief Executive of his powers and prerogatives to enforce the laws of the
land and to maintain public order and safety in Mindanao, constituting the crime of rebellion." 221

2) "[L]awless armed groups have taken up arms and committed public uprising against the duly
constituted government and against the people of Mindanao, for the purpose of removing
Mindanao - starting with the City of Marawi, Lanao del Sur - from its allegiance to the
Government and its laws and depriving the Chief Executive of his powers and prerogatives to
enforce the laws of the land and to maintain public order and safety in Mindanao, to the great
damage, prejudice, and detriment of the people therein and the nation as a whole." 222

3) The May 23, 2017 events "put on public display the groups' clear intention to establish an
Islamic State and their capability to deprive the duly constituted authorities - the President,
foremost - of their powers and prerogatives. "223

4) "These activities constitute not simply a display of force, but a clear attempt to establish the
groups' seat of power in Marawi City for their planned establishment of a DAESH wilayat or
province covering the entire Mindanao."224

5) "The cutting of vital lines for transportation and power; the recruitment of young Muslims to
further expand their ranks and strengthen their force; the armed consolidation of their members
throughout Marawi City; the decimation of a segment of the city population who resist; and the
brazen display of DAESH flags constitute a clear, pronounced, and unmistakable intent to
remove Marawi City, and eventually the rest of Mindanao, from its allegiance to the
Government."225

6) "There exists no doubt that lawless armed groups are attempting to deprive the President of
his power, authority, and prerogatives within Marawi City as a precedent to spreading their
control over the entire Mindanao, in an attempt to undermine his control over executive
departments, bureaus, and offices in said area; defeat his mandate to ensure that all laws are
faithfully executed; and remove his supervisory powers over local governments." 226

7) "Law enforcement and other government agencies now face pronounced difficulty sending
their reports to the Chief Executive due to the city-wide power outages. Personnel from the
BJMP have been prevented from performing their functions. Through the attack and
occupation of several hospitals, medical services in Marawi City have been adversely affected.
The bridge and road blockades set up by the groups effectively deprive the government of its
ability to deliver basic services to its citizens. Troop reinforcements have been hampered,
preventing the government from restoring peace and order in the area. Movement by both
civilians and government personnel to and from the city is likewise hindered." 227

8) "The taking up of arms by lawless armed groups in the area, with support being provided by
foreign-based terrorists and illegal drug money, and their blatant acts of defiance which
embolden other armed groups in Mindanao, have resulted in the deterioration of public order
and safety in Marawi City; they have likewise compromised the security of the entire Island of
Mindanao."228

9) "Considering the network and alliance-building activities among terrorist groups, local
criminals, and lawless armed men, the siege f Marawi City is a vital cog in attaining their long-
standing goal: absolute control over the entirety of Mindanao. These circumstances demand
 swift and decisive action to ensure the safety and security of the Filipino people and preserve
our national integrity."229

Thus, the President deduced from the facts available to him that there was an armed public uprising, the
culpable purpose of which was to remove from the allegiance to the Philippine Government a portion of its
territory and to deprive the Chief Executive of any of his powers and prerogatives, leading the President to
believe that there was probable cause that the crime of rebellion was and is being committed and that
public safety requires the imposition of martial law and suspension of the privilege of the writ of habeas
corpus.
A review of the aforesaid facts similarly leads the Court to conclude that the President, in issuing
Proclamation No. 216, had sufficient factual bases tending to show that actual rebellion exists. The
President's conclusion, that there was an armed public uprising, the culpable purpose of which was the
removal from the allegiance of the Philippine Government a portion of its territory and the deprivation of the
President from performing his powers and prerogatives, was reached after a tactical consideration of the
facts. In fine, the President satisfactorily discharged his burden of proof.
After all, what the President needs to satisfy is only the standard of probable cause for a valid declaration
of martial law and suspension of the privilege of the writ of habeas corpus. As Justice Carpio decreed in his
Dissent in Fortun:
x x x [T]he Constitution does not compel the President to produce such amount of proof as to unduly
burden and effectively incapacitate her from exercising such powers.

Definitely, the President need not gather proof beyond reasonable doubt, which is the standard
of proof required for convicting an accused charged with a criminal offense.x x x

xxxx

Proof beyond reasonable doubt is the highest quantum
President to establish the existence of rebellion or invasion
declaring martial law or suspending the writ amounts to
President's power to act as to practically tie her hands
protecting the nation against threats to public safety.'
of evidence, and to require the
with such amount of proof before
an excessive restriction on 'the
and disable her from effectively

Neither clear and convincing evidence, which is employed in either criminal or civil cases, is
indispensable for a lawful declaration of martial law or suspension of the writ. This amount of
proof likewise unduly restrains the President in exercising her emergency powers, as it
requires proof greater than preponderance of evidence although not beyond reasonable doubt.

Not even preponderance of evidence, which is the degree of proof necessary in civil cases, is
demanded for a lawful declaration of martial law.

xxxx

Weighing the superiority of the evidence on hand, from at least two opposing sides, before she
can act and impose martial law or suspend the writ unreasonably curtails the President's
emergency powers.

Similarly, substantial evidence constitutes an unnecessary restriction on the President's use of

her emergency powers. Substantial evidence is the amount of proof required in administrative
or quasi-judicial cases, or that amount of relevant evidence which a reasonable mind might
accept as adequate to justify a conclusion.
 I am of the view that probable cause of the existence of either invasion or rebellion suffices and
satisfies the standard of proof for a valid declaration of martial law and suspension of the writ.

Probable cause is the same amount of proof required for the filing of a criminal information by
the prosecutor and for the issuance of an arrest warrant by a judge. Probable cause has been
defined as a 'set of facts and circumstances as would lead a reasonably discreet and prudent
man to believe that the offense charged in the Information or any offense included therein has
been committed by the person sought to be arrested.'

In determining probable cause, the average man weighs the facts and circumstances without
resorting to the calibrations of the rules of evidence of which he has no technical knowledge.
He relies on common sense. A finding of probable cause needs only to rest on evidence
showing that, more likely than not, a crime has been committed and that it was committed by
the accused. Probable cause demands more than suspicion; it requires less than evidence that
would justify conviction.

Probable cause, basically premised on common sense, is the most reasonable, most practical,
and most expedient standard by which the President can fully ascertain the existence or non-
existence of rebellion, necessary for a declaration of martial law x x x 230

c) Inaccuracies, simulations,
falsities, and hyperboles.
The allegation in the Lagman Petition that the facts stated in Proclamation No. 216 and the Report are
false, inaccurate, simulated, and/or hyperbolic, does not persuade. As mentioned, the Court is not
concerned about absolute correctness, accuracy, or precision of the facts because to do so would unduly
tie the hands of the President in responding to an urgent situation.
Specifically, it alleges that the following facts are not true as shown by its counter-evidence. 231

FACTUAL STATEMENTS COUNTER-EVIDENCE

(1) that the Maute group attacked Amai Statements made by:
Pakpak Hospital and hoisted the DAESH flag (a) Dr. Amer Saber, Chief of the Hospital
there, among several locations. As of 0600H (b) Health Secretary Paulyn Ubial;
of 24 May 2017, members of the Maute Group (c) PNP Spokesperson Senior Supt. Dionardo
were seen guarding the entry gates of the Carlos;
Amai Pakpak Hospital and that they held (d) AFP Public Affairs Office Chief Co. Edgard
hostage the employees of the Hospital and Arevalo; and
took over the PhilHealth office located thereat (e) Marawi City Mayor Majul Gandamra
(Proclamation No. 216 and Report); denying that the hospital was attacked by the
Maute Group citing online news articles of
Philstar, Sunstar, Inquirer, and Bombo
Radyo.232
2. that the Maute Group ambushed and Statements made by PNP Director General
burned the Marawi Police Station Ronald dela Rosa and Marawi City Mayor
(Proclamation No. 216 and the Report); Majul Gandamra in the online news reports of
ABS-CBN News and CNN
Philippines233 denying that the Maute group
occupied the Marawi Police Station.

3. that lawless armed groups likewise Statement made by the bank officials in the
ransacked the Landbank of the Philippines on-line news article of Philstar234 that the
and commandeered one of its armored Marawi City branch was not ransacked but
 vehicles (Report); sustained damages from the attacks.

4. that the Marawi Central Elementary Pilot Statements in the on-line news article of
School was burned (Proclamation No. 216 and Philstar235 made by the Marawi City Schools
the Report); Division Assistant Superintendent Ana Alonto
denying that the school was burned and
Department of Education Assistant Secretary
Tonisito Umali stating that they have not
received any report of damage.

5. that the Maute Group attacked various Statement in the on-line news article of
government facilities (Proclamation No. 216 Inquirer236 made by Marawi City Mayor Majul
and the Report). Gandamra stating that the ASG and the Maute
Terror Groups have not taken over any
government facility in Marawi City.

However, the so-called counter-evidence were derived solely from unverified news articles on the internet,
with neither the authors nor the sources shown to have affirmed the contents thereof It was not even shown
that efforts were made to secure such affirmation albeit the circumstances proved futile. As the Court has
consistently ruled, news articles are hearsay evidence, twice removed, and are thus without any probative
value, unless offered for a purpose other than proving the truth of the matter asserted. 237 This
pronouncement applies with equal force to the Cullamat Petition which likewise submitted online news
articles238 as basis for their claim of insufficiency of factual basis.
Again, it bears to reiterate that the maxim falsus in uno, falsus in omnibus finds no application in these
cases. As long as there are other facts in the proclamation and the written Report indubitably showing the
presence of an actual invasion or rebellion and that public safety requires the declaration and/or
suspension, the finding of sufficiency of factual basis, stands.
d) Ruling in Bedol v.
Commission on Elections not
Applicable.
Petitioners, however, insist that in Bedol v. Commission on Elections,239 news reports may be admitted on
grounds of relevance, trustworthiness, and necessity. Petitioners' reliance on this case is misplaced. The
Court in Bedol made it clear that the doctrine of independent relevant statement, which is an ·exception to
the hearsay rule, applies in cases "where only the fact that such statements were made is relevant, and the
truth or falsity thereof is immaterial." 240 Here, the question is not whether such statements were made by
Saber, et. al., but rather whether what they said are true. Thus, contrary to the view of petitioners, the
exception in Bedol finds no application here.
e) There are other independent
facts which support the finding that,
more likely than not, rebellion exists
and that public safety requires it.
Moreover, the alleged false and/or inaccurate statements are just pieces and parcels of the Report; along
with these alleged false data is an arsenal of other independent facts showing that more likely than not,
actua1 rebellion exists, and public safety requires the declaration of martial law or suspension of the
privilege of the writ of habeas corpus. To be precise, the alleged false and/or inaccurate statements are
only five out of the severa1 statements bulleted in the President's Report. Notably, in the interpellation by
Justice Francis H. Jardeleza during the second day of the oral argument, petitioner Lagman admitted that
he was not aware or that he had no personal knowledge of the other incidents cited. 241 As it thus stands,
there is no question or challenge with respect to the reliability of the other incidents, which by themselves
are ample to preclude the conclusion that the President's report is unreliable and that Proclamation No. 216
was without sufficient factual basis.
Verily, there is no credence to petitioners' claim that the bases for the President's imposition of martial law
and suspension of the writ of habeas corpus were mostly inaccurate, simulated, false and/or hyperbolic.
X. Public safety requires the declaration of
martial law and the suspension of the privilege of
the writ of habeas corpus in the whole of
Mindanao.
Invasion or rebellion alone may justify resort to the calling out power but definitely not the declaration of
martial law or suspension of the privilege of the writ of habeas corpus. For a declaration of martial law or
suspension of the privilege of the writ of habeas corpus to be valid, there must be a concurrence of actual
rebellion or invasion and the public safety requirement. In his Report, the President noted that the acts of
violence perpetrated by the ASG and the Maute Group were directed not only against government forces or
establishments but likewise against civilians and their properties. 242 In addition and in relation to the armed
hostilities, bomb threats were issued;243 road blockades and checkpoints were set up; 244 schools and
churches were burned;245 civilian hostages were taken and killed; 246 non-Muslims or Christians were
targeted;247 young male Muslims were forced to join their group; 248 medical services and delivery of basic
services were hampered;249 reinforcements of government troops and civilian movement were
hindered;250 and the security of the entire Mindanao Island was compromised. 251
These particular scenarios convinced the President that the atrocities had already escalated to a level that
risked public safety and thus impelled him to declare martial law and suspend the privilege of the writ
of habeas corpus. In the last paragraph of his Report, the President declared:
While the government is presently conducting legitimate operations to address the on-going rebellion, if not
the seeds of invasion, public safety necessitates the continued implementation of martial law and the
suspension of the privilege of the writ of habeas corpus in the whole of Mindanao until such time that the
rebellion is completely quelled.252

Based on the foregoing, we hold that the parameters for the declaration of martial law and suspension of
the privilege of the writ f habeas corpus have been properly and fully complied with. Proclamation No. 216
has sufficient factual basis there being probable cause to believe that rebellion exists and that public safety
requires the martial law declaration and the suspension of the privilege of the writ of habeas corpus.
XI. Whole of Mindanao
a) The overriding and
paramount concern of martial law is
the protection of the security of the
nation and the good and safety of the
public.
Considering the nation's and its people's traumatic experience martial law under the Marcos regime, one
would expect the framers of the 1987 Constitution to stop at nothing from not resuscitating the law. Yet it
would appear that the constitutional writers entertained no doubt about the necessity and practicality of
such specie of extraordinary power and thus, once again, bestowed on the Commander-in-Chief the power
to declare martial law albeit in its diluted form.
Indeed, martial law and the suspension of the privilege of the writ of habeas corpus are necessary for the
protection of the security of the nation; suspension of the privilege of the writ of habeas corpus is
"precautionary , and although it might [curtail] certain rights of individuals, [it] is for the purpose of
defending and protecting the security of the state or the entire country and our sovereign
people".253 Commissioner Ople referred to the suspension of the privilege of the writ of habeas corpus as a
"form of immobilization" or "as a means of immobilizing potential internal enemies" "especially in areas like
Mindanao."254
Aside from protecting the security of the country, martial law also guarantees and promotes public safety. It
is worthy of mention that rebellion alone does not justify the declaration of martial law or suspension of the
privilege of the writ of habeas corpus; the public safety requirement must likewise be present.
b) As Commander-in-Chief, the
President receives vital, relevant,
classified, and live information which
equip and assist him in making
decisions.
In Parts IX and X, the Court laid down the arsenal of facts and events that formed the basis for
Proclamation No. 216. For the President, the totality of facts and events, more likely than not, shows that
actual rebellion exists and that public safety requires the declaration of martial law and suspension of the
privilege of the writ of habeas corpus. Otherwise stated, the President believes that there is probable cause
that actual rebellion exists and public safety warrants the issuance of Proclamation No. 216. In turn, the
Court notes that the President, in arriving at such a conclusion, relied on the facts and events included in
the Report, which we find sufficient.
To be sure, the facts mentioned in the Proclamation and the Report are far from being exhaustive or all-
encompassing. At this juncture, it may not be amiss to state that as Commander-in-Chief, the President has
possession of documents and information classified as "confidential", the contents of which cannot be
included in the Proclamation or Report for reasons of national security. These documents may contain
information detailing the position of government troops and rebels, stock of firearms or ammunitions,
ground commands and operations, names of suspects and sympathizers, etc. , In fact, during the closed
door session held by the Court, some information came to light, although not mentioned in the
Proclamation or Report. But then again, the discretion whether to include the same in the Proclamation or
Report is the judgment call of the President. In fact, petitioners concede to this. During the oral argument,
petitioner Lagman admitted that "the assertion of facts [in the Proclamation and Report] is the call of the
President."255
It is beyond cavil that the President can rely on intelligence reports and classified documents. "It is for the
President as [C]ommander-in[C]hief of the Armed Forces to appraise these [classified evidence or
documents/]reports and be satisfied that the public safety demands the suspension of the
writ."256 Significantly, respect to these so-called classified documents is accorded even "when [the] authors
of or witnesses to these documents may not be revealed." 257
In fine, not only does the President have a wide array of information before him, he also has the right,
prerogative, and the means to access vital, relevant, and confidential data, concomitant with his position as
Commander-in-Chief of the Armed Forces.
c) The Court has no machinery
or tool equal to that of the
Commander-in-Chief to ably and
properly assess the ground
conditions.
In contrast, the Court does not have the same resources available to the President. However, this should
not be considered as a constitutiona1 lapse. On the contrary, this is in line with the function of the Court,
particularly in this instance, to determine the sufficiency of factual basis of Proclamation No. 216. As
thoroughly discussed in Part VIII, the determination by the Court of the sufficiency of factual basis must be
limited only to the facts and information mentioned in the Report and Proclamation. In fact, the Court,
in David v. President Macapagal-Arroyo,258 cautioned not to "undertake an independent investigation
beyond the pleadings." In this regard, "the Court will have to rely on the fact-finding capabilities of the
[E]xecutive [D]epartment;"259 in turn, the Executive Department will have to open its findings to the
Court,260 which it did during the closed door session last June 15, 2017.
d) The 1987 Constitution
grants to the President, as
Commander-in-Chief, the discretion
to determine the territorial coverage
or application of martial law or
suspension of the privilege of the writ
of habeas corpus.
Section 18, Article VII of the Constitution states that "[i]n case of invasion or rebellion, when the public
safety requires it, [the President] may x x x suspend the privilege of writ of habeas corpus or place the
Philippines or any part thereof under martial law." Clearly, the Constitution grants to the President the
discretion to determine the territorial coverage of martial law and the suspension of the privilege of the writ
of habeas corpus. He may put the entire Philippines or only a part thereof under martial law.
This is both an acknowledgement and a recognition that it is the Executive Department, particularly the
President as Commander-in-Chief, who is the repository of vital, classified, and live information necessary
for and relevant in calibrating the territorial application of martial law and the suspension of the privilege of
the writ of habeas corpus. It, too, is a concession that the President has the tactical and military support,
and thus has a more informed understanding of what is happening on the ground. Thus, the Constitution
imposed a limitation on the period of application, which is 60 days, unless sooner nullified, revoked or
extended, but not on the territorial scope or area of coverage; it merely stated "the Philippines or any part
thereof," depending on the assessment of the President.
e) The Constitution has
provided sufficient safeguards against
possible abuses of Commander-in-
Chief's powers; further curtailment of
Presidential powers should not only
be discouraged but also avoided.
Considering the country's history, it is understandable that the resurgence of martial law would engender
apprehensions among the citizenry. Even the Court as an institution cannot project a stance of
nonchalance. However, the importance of martial law in the context of our society should outweigh one's
prejudices and apprehensions against it. The significance of martial law should not be undermined by
unjustified fears and past experience. After all, martial law is critical and crucial to the promotion of public
safety, the preservation of the nation's sovereignty and ultimately, the survival of our country. It is vital for
the protection of the country not only against internal enemies but also against those enemies lurking from
beyond our shores. As such, martial law should not be cast aside, or its scope and potency limited and
diluted, based on bias and unsubstantiated assumptions.
Conscious of these fears and apprehensions, the Constitution placed several safeguards which effectively
watered down the power to declare martial law. The 1987 Constitution "[clipped] the powers of [the]
Commander-in-Chief because of [the] experience with the previous regime." 261 Not only were the grounds
limited to actual invasion or rebellion, but its duration was likewise fixed at 60 days, unless sooner revoked,
nullified, or extended; at the same time, it is subject to the veto powers of the Court and Congress.
Commissioner Monsod, who, incidentally, is a counsel for the Mohamad Petition, even exhorted his
colleagues in the Constitutional Convention to look at martial law from a new perspective by elaborating on
the sufficiency of the proposed safeguards:
MR. MONSOD. x x x

Second, we have been given a spectre of non sequitur, that the mere declaration of martial law
for a fixed period not exceeding 60 days, which is subject to judicial review, is going to result in
numerous violations of human rights, the predominance of the military forever and in untold
sufferings. Madam President, we are talking about invasion and rebellion. We may not have
any freedom to speak of after 60 days, if we put as a precondition the concurrence of
Congress. That might prevent the President from acting at that time in order to meet the
problem. So I would like to suggest that, perhaps, we should look at this in its proper
perspective. We are only looking at a very specific case. We are only looking at a case of the
first 60 days at its maximum. And we are looking at actual invasion and rebellion, and there are
other safeguards in those cases.262
Even Bishop Bacani was convinced that the 1987 Constitution has enough safeguards against presidential
abuses and commission of human rights violations. In voting yes for the elimination of the requirement of
prior concurrence of Congress, Bishop Bacani stated, viz.:
BISHOP BACANI. Yes, just two sentences. The reason I vote II yes is that despite my concern for human
rights, I believe that a good President can also safeguard human rights and human lives as well. And I do
not want to unduly emasculate the powers of the President. Xxx 263

Commissioner Delos Reyes shared the same sentiment, to wit:

MR. DE LOS REYES. May I explain my vote, Madam President.

x x x The power of the President to impose martial law is doubtless of a very high and delicate
nature. A free people are naturally jealous of the exercise of military power, and the power to
impose martial law is certainly felt to be one of no ordinary magnitude. But as presented by the
Committee, there are many safeguards: 1) it is limited to 60 days; 2) Congress can revoke it; 3)
the Supreme Court can still review as to the sufficiency of factual basis; and 4) it does not
suspend the operation of the Constitution. To repeat what I have quoted when I interpellated
Commissioner Monsod, it is said that the power to impose martial law is dangerous to liberty
and may be abused. All powers may be abused if placed in unworthy hands. But it would be
difficult, we think, to point out any other hands in which this power will be more safe and at the
same time equally effectual. When citizens of the State are in arms against each other and the
constituted authorities are unable to execute the laws, the action of the President must be
prompt or it is of little value. x x x264 (Emphasis supplied)

At this juncture, it bears to stress that it was the collective sentiment of the framers of the 1987 Constitution
that sufficient safeguards against possible misuse and abuse by the Commander-in-Chief of his
extraordinary powers are already in place and that no further emasculation of the presidential powers is
called for in the guise of additional safeguards. The Constitution recognizes that any further curtailment,
encumbrance, or emasculation of the presidential powers would not generate any good among the three
co-equal branches, and to the country and its citizens as a whole. Thus:
MR. OPLE. The reason for my concern, Madam President, is that when we put all of these encumbrances
on the President and Commander-in-Chief during an actual invasion or rebellion, given an intractable
Congress that may be dominated by opposition parties, we may be actually impelling the President to use
the sword of Alexander to cut the Gordian knot by just declaring a revolutionary government that sets him
free to deal with the invasion or the insurrection. x x x265 (Emphasis supplied)

f) Rebellion and public safety;

nature, scope, and range.
It has been said that the "gravamen of the crime of rebellion is an armed public uprising against the
government;"266 and that by nature, "rebellion is x x x a crime of masses or multitudes, involving crowd
action, that cannot be confined a priori, within predetermined bounds."267 We understand this to mean that
the precise extent or range of the rebellion could not be measured by exact metes and bounds.
To illustrate: A contingent armed with high-powered firearms publicly assembled in Padre Faura, Ermita,
Manila where the Court's compound is situated. They overpowered the guards, entered the Court's
premises, and hoisted the ISIS flag. Their motive was political, i.e., they want to remove from the allegiance
to the Philippine government a part of the territory of the Philippines, particularly the Court's compound and
establish it as an ISIS-territory.
Based on the foregoing illustration, and vis-a-vis the nature of the crime of rebellion, could we validly say
that the rebellion is confined only within the Court's compound? Definitely not. The possibility that there are
other rebels positioned in the nearby buildings or compound of the Philippine General Hospital (PGH) or
the Manila Science High Schoo1 (MSHS) could not be discounted. There is no way of knowing that
all participants in the rebellion went and stayed inside the Court's compound.
Neither could it be validly argued that the armed contingent positioned in PGH or MSHS is not engaged in
rebellion because there is no publicity in their acts as, in fact, they were merely lurking inside the
compound of PGH and MSHS. However, it must be pointed out that for the crime of rebellion to be
consummated, it is not required that all armed participants should congregate in one place, in this case, the
Court's compound, and publicly rise in arms against the government for the attainment of their culpable
purpose. It suffices that a portion of the contingent gathered and formed a mass or a crowd and engaged in
an armed public uprising against the government. Similarly, it cannot be validly concluded that the grounds
on which the armed public uprising actually to6k place should be the measure of the extent, scope or
range, of the actual I rebellion. This is logical since the other rebels positioned in PGH, MSHS, I or
elsewhere, whose participation did not involve the publicity aspect of rebellion, may also be considered as
engaging in the crime of rebellion.
Proceeding from the same illustration, suppose we say that the President, after finding probable cause that
there exists actual rebellion and that public safety requires it, declares martial law and suspends the writ
of habeas corpus in the whole of Metro Manila, could we then say that the territorial coverage of the
proclamation is too expansive?
To answer this question, we revert back to the premise that the discretion to determine the territorial scope
of martial law lies with the President. The Constitution grants him the prerogative whether to put the entire
Philippines or any part thereof under martial law. There is no constitutional edict that martial law should be
confined only in the particular place where the armed public uprising actually transpired. This is not only
practical but also logical. Martial law is an urgent measure since at stake is the nation's territorial
sovereignty and survival. As such, the President has to respond quickly. After the rebellion in the Court's
compound, he need not wait for another rebellion to be mounted in Quezon City before he could impose
martial law thereat. If that is the case, then the President would have to wait until every remote corner in
the country is infested with rebels before he could declare martial law in the entire Philippines. For sure,
this is not the scenario envisioned by the Constitution.
Going back to the illustration above, although the President is not required to impose martial law only within
the Court's compound because it is where the armed public uprising actually transpired, he may do so if he
sees fit. At the same time, however, he is not precluded from expanding the coverage of martial law beyond
the Court's compound. After all, rebellion is not confined within predetermined bounds.
Public safety, which is another component element for the declaration of martial law, "involves the
prevention of and protection from events that could endanger the safety of the general public from
significant danger, injury/harm, or damage, such as crimes or disasters." 268 Public safety is
an abstract term; it does not take any physical form. Plainly, its range, extent or scope could not be
physically measured by metes and bounds.
Perhaps another reason why the territorial scope of martial law should not necessarily be limited to the
particular vicinity where the armed public uprising actually transpired, is because of the unique
characteristic of rebellion as a crime. "The crime of rebellion consists of many acts. It is a vast movement of
men and a complex net of intrigues and plots. Acts committed in furtherance of rebellion[,] though crimes in
themselves[,] are deemed absorbed in one single crime of rebellion." 269 Rebellion absorbs "other acts
committed in its pursuance".270 Direct assault,271 murder,272 homicide,273arson,274 robbery,275 and
kidnapping,276 just to name a few, are absorbed in the crime of rebellion if committed in furtherance of
rebellion; "[i]t cannot be made a basis of a separate charge." 277 Jurisprudence also teaches that not only
common crimes may be absorbed in rebellion but also "offenses under special laws [such as Presidential
Decree No. 1829]278 which are perpetrated in furtherance of the political offense". 279 "All crimes, whether
punishable under a special law or general law, which are me e components or ingredients, or committed in
furtherance thereof, become absorbed in the crime of rebellion and cannot be isolated and charged as
separate crimes in themselves.280
Thus, by the theory of absorption, the crime of murder committed in Makati City, if committed in furtherance
of the crime of rebellion being hypothetically staged in Padre Faura, Ermita, Manila, is stripped of its
common complexion and is absorbed in the crime of rebellion. This all the more makes it difficult to confine
the application of martial law only to the place where the armed public uprising is actually taking place. In
the illustration above, Padre Faura could only be the nerve center of the rebellion but at the same time
rebellion is also happening in Makati City.
In fine, it is difficult, if not impossible, to fix the territorial scope of martial law in direct proportion to the
"range" of actual rebellion and public safety simply because rebellion and public safety have no fixed
physical dimensions. Their transitory and abstract nature defies precise measurements; hence, the
determination of the territorial scope of martial law could only be drawn from arbitrary, not fixed, variables.
The Constitution must have considered these limitations when it granted the President wide leeway and
flexibility in determining the territorial scope of martial law.
Moreover, the President's duty to maintain peace and public safety is not limited only to the place where
there is actual rebellion; it extends to other areas where the present hostilities are in danger of spilling over.
It is not intended merely to prevent the escape of lawless elements from Marawi City, but also to avoid
enemy reinforcements and to cut their supply lines coming from different parts of Mindanao. Thus, limiting
the proclamation and/or suspension to the place where there is actual rebellion would not only defeat the
purpose of declaring martial law, it will make the exercise thereof ineffective and useless.
g) The Court must stay within
the confines of its power.
The Court can only act within the confines of its power. For the Court to overreach is to infringe upon
1âwphi1

another's territory. Clearly, the power to determine the scope of territorial application belongs to the
President. "The Court cannot indulge in judicial legislation without violating the principle of separation of
powers, and, hence, undermining the foundation of our republican system." 281
To reiterate, the Court is not equipped with the competence and logistical machinery to determine the
strategical value of other places in the military's efforts to quell the rebellion and restore peace. It would be
engaging in an act of adventurism if it dares to embark on a mission of deciphering the territorial metes and
bounds of martial law. To be blunt about it, hours after the proclamation of martial law none of the members
of this Court could have divined that more than ten thousand souls would be forced to evacuate to Iligan
and Cagayan de Oro and that the military would have to secure those places also; none of us could have
predicted that Cayamora Maute would be arrested in Davao City or that his wife Ominta Romato Maute
would be apprehended in Masiu, Lanao del Sur; and, none of us had an inkling that the Bangsamoro
Islamic Freedom Fighters (BIFF) would launch an attack in Cotabato City. The Court has no military
background and technical expertise to predict that. In the same manner, the Court lacks the technical
capability to determine which part of Mindanao would best serve as forward operating base of the military
in their present endeavor in Mindanao. Until now the Court is in a quandary and can only speculate
whether the 60-day lifespan of Proclamation No. 216 could outlive the present hostilities in Mindanao. It is
on this score that the Court should give the President sufficient leeway to address the peace and order
problem in Mindanao.
Thus, considering the current situation, it will not serve any purpose if the President is goaded into using
"the sword of Alexander to cut the Gordian knot" 282 by attempting to impose another encumbrance; after all
"the declaration of martial law or the suspension of the privilege of the writ of habeas corpus is essentially
an executive act."283
Some sectors, impelled perhaps by feelings of patriotism, may wish to subdue, rein in, or give the President
a nudge, so to speak, as some sort of reminder of the nation's experience under the Marcos-styled martial
law. However, it is not fair to judge President Duterte based on the ills some of us may have experienced
during the Marcos-martial law era. At this point, the Court quotes the insightful discourse of Commissioner
Ople:
MR. OPLE. x x x

xxxx

Madam President, there is a tendency to equate patriotism with rendering the executive branch
of the government impotent, as though by reducing drastically the powers of the executive, we
are rendering a service to human welfare. I think it is also important to understand that the
extraordinary measures contemplated in the Article on the Executive pertain to a practical state
of war existing in this country when national security will become a common bond of patriotism
of all Filipinos, especially if it is an actual invasion or an actual rebellion, and the President may
 have to be given a minimum flexibility to cope with such unprecedented threats to the survival
of a nation. I think the Commission has done so but at the same time has not, in any manner,
shunned the task of putting these powers under a whole system of checks and balances,
including the possible revocation at any time of a proclamation of martial law by the Congress,
and in any case a definite determination of these extraordinary powers, subject only to another
extension to be determined by Congress in the event that it is necessary to do so because the
emergency persists.

So, I think this Article on the Executive for which I voted is completely responsible; it is attuned
to the freedom and the rights of the citizenry. It does not render the presidency impotent and, at
the same time, it allows for a vigorous representation of the people through their Congress
when an emergency measure is in force and effect. 284

h) Several local armed groups

have formed linkages aimed at
committing rebellion and acts in
furtherance thereof in the whole of
Mindanao.
With a predominantly Muslim population, Marawi City is "the only Islamic City of the South." 285 On April 15,
1980, it was conferred the official title of "Islamic City of Marawi." 286 The city's first name, "Dansalan," "was
derived from the word 'dansal', meaning a destination point or rendezvous. Literally, it also means arrival or
coming."287 Marawi lies in the heart of Mindanao. In fact, the Kilometer Zero marker in Mindanao is found in
Marawi City thereby making Marawi City the point of reference of all roads in Mindanao.
Thus, there is reasonable basis to believe that Marawi is only the staging point of the rebellion, both for
symbolic and strategic reasons. Marawi may not be the target but the whole of Mindanao. As mentioned in
the Report, "[l]awless armed groups have historically used provinces adjoining Marawi City as escape
routes, supply lines, and backdoor passages;" 288there is also the plan to establish a wilayat in Mindanao by
staging the siege of Marawi. The report that prior to May 23, 2017, Abdullah Maute had already dispatched
some of his men to various places in Mindanao, such as Marawi, Iligan, and Cagayan de Oro for bombing
operations, carnapping, and the murder of military and police personnel, 289 must also be considered.
Indeed, there is some semblance of truth to the contention that Marawi is only the start, and Mindanao the
end.
Other events also show that the atrocities were not concentrated in Marawi City. Consider these:
a. On January 13, 2017, an improvised explosive device (IED) exploded in Barangay Campo Uno, Lamita
City, Basilan. A civilian was killed while another was wounded. 290

b. On January 19, 2017, the ASG kidnapped three Indonesians near Bakungan Island,
Taganak, Tawi-Tawi.291

c. On January 29, 2017, the ASG detonated an IED in Barangay Danapah, Albarka, Basilan
resulting in the death of two children and the wounding of three others. 292

d. From March to May 2017, there were eleven (11) separate instances of IED explosions by
the BIFF in Mindanao. These resulted in the death and wounding of several personalities. 293

e. On February 26, 2017, the ASG beheaded its kidnap victim, Juergen Kantner in Sulu. 294

f. On April 11, 2017, the ASG infiltrated Inabaga, Bohol resulting in firefights between rebels
and government troops.295

g. On April 13, 2017, the ASG beheaded Filipino kidnap victim Noel Besconde. 296
 h. On April 20, 2017, the ASG kidnapped SSg. Anni Siraji and beheaded him three days
later.297

There were also intelligence reports from the military about offensives committed by the ASG and other
local rebel groups. All these suggest that the rebellion in Marawi has already spilled over to other parts of
Mindanao.
Moreover, considering the widespread atrocities in Mindanao and the linkages established among rebel
groups, the armed uprising that was initially staged in Marawi cannot be justified as confined only to
Marawi. The Court therefore will not simply disregard the events that happened during the Davao City
bombing, the Mamasapano massacre, the Zamboanga City siege, and the countless bombings in
Cotabato, Sultan Kudarat, Sulu, and Basilan, among others. 298 The Court cannot simply take the battle of
Marawi in isolation. As a crime without predetermined bounds, the President has reasonable basis to
believe that the declaration of martial law, as well as the suspension of the privilege of the writ of habeas
corpus in the whole of Mindanao, is most necessary, effective, and called for by the circumstances.
i) Terrorism neither negates
nor absorbs rebellion.
It is also of judicial notice that the insurgency in Mindanao has been ongoing for decades. While some
groups have sought legal and peaceful means, others have resorted to violent extremism and terrorism.
Rebellion may be subsumed under the crime of terrorism, which has a broader scope covering a wide
range of predicate crimes. In fact, rebellion is only one of the various means by which terrorism can be
committed.299 However, while the scope of terrorism may be comprehensive, its purpose is distinct and
well-defined. The objective of a "'terrorist" is to sow and create a condition of widespread fear among the
populace in order to coerce the government to give in to an unlawful demand. This condition of widespread
fear is traditionally achieved through bombing, kidnapping, mass killing, and beheading, among others. In
contrast, the purpose of rebellion, as previously discussed, is political, i.e., (a) to remove from the
allegiance to the Philippine Government or its laws: (i) the territory of the Philippines or any part thereof; (ii)
any body of land, naval, or armed forces; or (b) to deprive the Chief Executive or Congress, wholly or
partially, of any of their powers and prerogatives.
In determining what crime was committed, we have to look into the main objective of the malefactors. If it is
political, such as for the purpose of severing the allegiance of Mindanao to the Philippine Government to
establish a wilayat therein, the crime is rebellion. If, on the other hand, the primary objective is to sow and
create a condition of widespread and extraordinary fear and panic among the populace in order to coerce
the government to give in to an unlawful demand, the crime is terrorism. Here, we have already explained
and ruled that the President did not err in believing that what is going on in Marawi City is one
contemplated under the crime of rebellion.
In any case, even assuming that the insurgency in Marawi City can also be characterized as terrorism, the
same will not in any manner affect Proclamation No. 216. Section 2 of Republic Act (RA) No. 9372,
otherwise known as the Human Security Act of 2007 expressly provides that "[n]othing in this Act shall be
interpreted as a curtailment, restriction or diminution of constitutionally recognized powers of the executive
branch of the government." Thus, as long as the President complies with all the requirements of Section
18, Article VII, the existence of terrorism cannot prevent him from exercising his extraordinary power of
proclaiming martial ' law or suspending the privilege of the writ of habeas corpus. After all, the extraordinary
powers of the President are bestowed on him by the Constitution. No act of Congress can, therefore, curtail
or diminish such powers.
Besides, there is nothing in Art. 134 of the RPC and RA 9372 which states that rebellion and terrorism are
mutuallty exclusive of each other or that they cannot co-exist together. RA 9372 does not expressly or
impliedly repeal Art. 134 of the RPC. And while rebellion is one of the predicate crimes of terrorism, one
cannot absorb the other as they have different elements. 300
Verily, the Court upholds the validity of the declaration of martial law and suspension of the privilege of the
writ of habeas corpus in the entire Mindanao region.
At the end of the day, however ardently and passionately we may believe in the validity or correctness of
the varied and contentious causes or principles that we espouse, advocate or champion, let us not forget
that at this point in time we, the Filipino people, are confronted with a crisis of such magnitude and
proportion that we all need to summon the spirit of unity and act as one undivided nation, if we are to
overcome and prevail in the struggle at hand.
Let us face up to the fact that the siege in Marawi City has entered the second month and only God or Allah
knows when it would end. Let us take notice of the fact that the casualties of the war are mounting. To date,
418 have died. Out of that were 303 Maute rebels as against 71 government troops and 44 civilians.
Can we not sheathe our swords and pause for a while to bury our dead, including our differences and
prejudices?
WHEREFORE, the Court FINDS sufficient factual bases for the issuance of Proclamation No. 216
and DECLARES it as CONSTITUTIONAL. Accordingly, the consolidated Petitions are hereby DISMISSED.
SO ORDERED.
MARIANO C. DEL CASTILLO