EN BANC

[G.R. No. 71977. February 27, 1987.]

DEMETRIO G. DEMETRIA, M.P., AUGUSTO S. SANCHEZ, M.P.,

ORLANDO S. MERCADO, M.P., HONORATO Y. AQUINO, M.P.,
ZAFIRO L. RESPICIO, M.P., DOUGLAS R. CAGAS, M.P., OSCAR
F. SANTOS, M.P., ALBERTO G. ROMULO, M.P., CIRIACO R.
ALFELOR, M.P., ISIDORO E. REAL, M.P., EMIGDIO L. LINGAD,
M.P., ROLANDO C. MARCIAL, M.P., PEDRO M. MARCELLANA,
M.P., VICTOR S. ZIGA, M.P., and ROGELIO V. GARCIA, M.P. ,
petitioners, vs. HON. MANUEL ALBA in his capacity as the
MINISTER OF THE BUDGET and VICTOR MACALINGCAG in his
capacity as the TREASURER OF THE PHILIPPINES,
respondents.

DECISION

FERNAN, J : p

Assailed in this petition for prohibition with prayer for a writ of

preliminary injunction is the constitutionality of the first paragraph of Section
44 of Presidential Decree No. 1177, otherwise known as the "Budget Reform
Decree of 1977."
Petitioners, who filed the instant petition as concerned citizens of this
country, as members of the National Assembly/Batasan Pambansa
representing their millions of constituents, as parties with general interest
common to all the people of the Philippines, and as taxpayers whose vital
interests may be affected by the outcome of the reliefs prayed for" 1 listed
the grounds relied upon in this petition as follows: LLpr

"A. SECTION 44 OF THE 'BUDGET REFORM DECREE OF 1977'

INFRINGES UPON THE FUNDAMENTAL LAW BY AUTHORIZING THE
ILLEGAL TRANSFER OF PUBLIC MONEYS.

"B. SECTION 44 OF PRESIDENTIAL DECREE NO. 1177 IS

REPUGNANT TO THE CONSTITUTION AS IT FAILS TO SPECIFY THE
OBJECTIVES AND PURPOSES FOR WHICH THE PROPOSED TRANSFER OF
FUNDS ARE TO BE MADE.
"C. SECTION 44 OF PRESIDENTIAL DECREE NO. 1177 ALLOWS
THE PRESIDENT TO OVERRIDE THE SAFEGUARDS, FORM AND
PROCEDURE PRESCRIBED BY THE CONSTITUTION IN APPROVING
APPROPRIATIONS.
"D. SECTION 44 OF THE SAME DECREE AMOUNTS TO AN
UNDUE DELEGATION OF LEGISLATIVE POWERS TO THE EXECUTIVE.

"E. THE THREATENED AND CONTINUING TRANSFER OF FUNDS

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 BY THE PRESIDENT AND THE IMPLEMENTATION THEREOF BY THE
BUDGET MINISTER AND THE TREASURER OF THE PHILIPPINES ARE
WITHOUT OR IN EXCESS OF THEIR AUTHORITY AND JURISDICTION." 2

Commenting on the petition in compliance with the Court resolution

dated September 19, 1985, the Solicitor General, for the public respondents,
questioned the legal standing of petitioners, who were allegedly merely
begging an advisory opinion from the Court, there being no justiciable
controversy fit for resolution or determination. He further contended that the
provision under consideration was enacted pursuant to Section 16[5], Article
VIII of the 1973 Constitution; and that at any rate, prohibition will not lie from
one branch of the government to a coordinate branch to enjoin the
performance of duties within the latter's sphere of responsibility.
On February 27, 1986, the Court required the petitioners to file a Reply
to the Comment. This, they did, stating, among others, that as a result of the
change in the administration, there is a need to hold the resolution of the
present case in abeyance "until developments arise to enable the parties to
concretize their respective stands." 3
Thereafter, We required public respondents to file a rejoinder. The
Solicitor General filed a rejoinder with a motion to dismiss, setting forth as
grounds therefor the abrogation of Section 16[5], Article VIII of the 1973
Constitution by the Freedom Constitution of March 25, 1986, which has
allegedly rendered the instant petition moot and academic. He likewise cited
the "seven pillars" enunciated by Justice Brandeis in Ashwander v. TVA, 297
U.S. 288 (1936) 4 as basis for the petition's dismissal. LexLib

In the case of Evelio B. Javier v. The Commission on Elections and

Arturo F. Pacificador, G.R. Nos. 68379-81, September 22, 1986, We stated
that:
"The abolition of the Batasang Pambansa and the disappearance
of the office in dispute between the petitioner and the private
respondents — both of whom have gone their separate ways-could be
a convenient justification for dismissing the case. But there are larger
issues involved that must be resolved now, once and for all, not only to
dispel the legal ambiguities here raised. The more important purpose is
to manifest in the clearest possible terms that this Court will not
disregard and in effect condone wrong on the simplistic and tolerant
pretext that the case has become moot and academic.

"The Supreme Court is not only the highest arbiter of legal

questions but also the conscience of the government. The citizen
comes to us in quest of law but we must also give him justice. The two
are not always the same. There are times when we cannot grant the
latter because the issue has been settled and decision is no longer
possible according to the law. But there are also times when although
the dispute has disappeared, as in this case, it nevertheless cries out to
be resolved. Justice demands that we act then, not only for the
vindication of the outraged right, though gone, but also for the
guidance of and as a restraint upon the future."

It is in the discharge of our role in society, as above-quoted, as well as

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 to avoid great disservice to national interest that We take cognizance of this
petition and thus deny public respondents' motion to dismiss. Likewise
noteworthy is the fact that the new Constitution, ratified by the Filipino
people in the plebiscite held on February 2, 1987, carries verbatim section
16[5], Article VIII of the 1973 Constitution under Section 24[5], Article VI.
And while Congress has not officially reconvened, We see no cogent reason
for further delaying the resolution of the case at bar.
The exception taken to petitioners' legal standing deserves scant
consideration. The case of Pascual v . Secretary of Public Works, et al., 110
Phil. 331, is authority in support of petitioners' locus standi. Thus:
"Again, it is well-settled that the validity of a statute may be
contested only by one who will sustain a direct injury in consequence
of its enforcement. Yet, there are many decisions nullifying at the
instance of taxpayers, laws providing for the disbursement of public
funds, upon the theory that 'the expenditure of public funds by an
officer of the state for the purpose of administering an unconstitutional
act constitutes a misapplication of such funds which may be enjoined
at the request of a taxpayer. Although there are some decisions to the
contrary, the prevailing view in the United States is stated in the
American Jurisprudence as follows:

'In the determination of the degree of interest essential to

give the requisite standing to attack the constitutionality of a
statute, the general rule is that not only persons individually
affected, but also taxpayers have sufficient interest in preventing
the illegal expenditures of moneys raised by taxation and may
therefore question the constitutionality of statutes requiring
expenditure of public moneys. [11 Am. Jur. 761, Emphasis
supplied.]'"

Moreover, in Tan v . Macapagal, 43 SCRA 677 and Sanidad v. Comelec,

73 SCRA 333. We said that as regards taxpayers' suits, this Court enjoys that
open discretion to entertain the same or not. LLphil

The conflict between paragraph 1 of Section 44 of Presidential-Decree

No. 1177 and Section 16[5], Article VIII of the 1973 Constitution is readily
perceivable from a mere cursory reading thereof. Said paragraph 1 of
Section 44 provides:
"The President shall have the authority to transfer any fund,
appropriated for the different departments, bureaus, offices and
agencies of the Executive Department, which are included in the
General Appropriations Act, to any program, project or activity of any
department, bureau, or office included in the General Appropriations
Act or approved after its enactment."

On the other hand, the constitutional provision under consideration

reads as follows:
"Sec. 16[5]. No law shall be passed authorizing any transfer
of appropriations, however, the President, the Prime Minister, the
Speaker, the Chief Justice of the Supreme Court, and the heads of
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 constitutional commissions may by law be authorized to augment any
item in the general appropriations law for their respective offices from
savings in other items of their respective appropriations."

The prohibition to transfer an appropriation for one item to another

was explicit and categorical under the 1973 Constitution. However, to afford
the heads of the different branches of the government and those of the
constitutional commissions considerable flexibility in the use of public funds
and resources, the constitution allowed the enactment of a law authorizing
the transfer of funds for the purpose of augmenting an item from savings in
another item in the appropriation of the government branch or constitutional
body concerned. The leeway granted was thus limited. The purpose and
conditions for which funds may be transferred were specified, i.e. transfer
may be allowed for the purpose of augmenting an item and such transfer
may be made only if there are savings from another item in the
appropriation of the government branch or constitutional body.
Paragraph 1 of Section 44 of P.D. No. 1177 unduly overextends the
privilege granted under said Section 16[5]. It empowers the President to
indiscriminately transfer funds from one department, bureau, office or
agency of the Executive Department to any program, project or activity of
any department, bureau or office included in the General Appropriations Act
or approved after its enactment, without regard as to whether or not the
funds to be transferred are actually savings in the item from which the same
are to be taken, or whether or not the transfer is for the purpose of
augmenting the item to which said transfer is to be made. It does not only
completely disregard the standards set in the fundamental law, thereby
amounting to an undue delegation of legislative powers, but likewise goes
beyond the tenor thereof. Indeed, such constitutional infirmities render the
provision in question null and void.
"For the love of money is the root of all evil: . . ." and money belonging
to no one in particular, i.e. public funds, provide an even greater temptation
for misappropriation and embezzlement. This, evidently, was foremost in the
minds of the framers of the constitution in meticulously prescribing the rules
regarding the appropriation and disposition of public funds as embodied in
Sections 16 and 18 of Article VIII of the 1973 Constitution. Hence, the
conditions on the release of money from the treasury [Sec. 18(1)]; the
restrictions on the use of public funds for public purpose [Sec. 18(2)]; the
prohibition to transfer an appropriation for an item to another [Sec. 16(5)
and the requirement of specifications [Sec. 16(2)], among others, were all
safeguards designed to forestall abuses in the expenditure of public funds.
Paragraph 1 of Section 44 puts all these safeguards to naught. For, as
correctly observed by petitioners, in view of the unlimited authority
bestowed upon the President, ". . . Pres. Decree No. 1177 opens the
floodgates for the enactment of unfounded appropriations, results in
uncontrolled executive expenditures, diffuses accountability for budgetary
performance and entrenches the pork barrel system as the ruling party may
well expand [sic] public money not on the basis of development priorities
but on political and personal expediency." 5 The contention of public
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 respondents that paragraph 1 of Section 44 of P.D. 1177 was enacted
pursuant to Section 16(5) of Article VIII of the 1973 Constitution must
perforce fall flat on its face. cdphil

Another theory advanced by public respondents is that prohibition will

not lie from one branch of the government against a coordinate branch to
enjoin the performance of duties within the latter's sphere of responsibility.
Thomas M. Cooley in his "A Treatise on the Constitutional Limitations,"
Vol. I, Eighth Edition, Little, Brown and Company, Boston, explained:
". . . The legislative and judicial are coordinate departments of
the government, of equal dignity; each is alike supreme in the exercise
of its proper functions, and cannot directly or indirectly, while acting
within the limits of its authority, be subjected to the control or
supervision of the other, without an unwarrantable assumption by that
other of power which, by the Constitution, is not conferred upon it. The
Constitution apportions the powers of government, but it does not
make any one of the three departments subordinate to another, when
exercising the trust committed to it. The courts may declare legislative
enactments unconstitutional and void in some cases, but not because
the judicial power is superior in degree or dignity to the legislative.
Being required to declare what the law is in the cases which come
before them, they must enforce the Constitution, as the paramount
law, whenever a legislative enactment comes in conflict with it. But the
courts sit, not to review or revise the legislative action, but to enforce
the legislative will, and it is only where they find that the legislature
has failed to keep within its constitutional limits, that they are at liberty
to disregard its action; and in doing so, they only do what every private
citizen may do in respect to the mandates of the courts when the
judges assume to act and to render judgments or decrees without
jurisdiction. 'In exercising this high authority, the judges claim no
judicial supremacy; they are only the administrators of the public will. If
an act of the legislature is held void, it is not because the judges have
any control over the legislative power, but because the act is forbidden
by the Constitution, and because the will of the people, which is therein
declared, is paramount to that of their representatives expressed in
any law.' [Lindsay v. Commissioners, & c., 2 Bay, 38, 61; People v.
Rucker, 5 Col. 5; Russ v. Com., 210 Pa. St. 544; 60 Atl. 169, 1 L.R.A.
[N.S.] 409, 105 Am. St. Rep. 825]" (pp. 332-334).

Indeed, where the legislature or the executive branch is acting within

the limits of its authority, the judiciary cannot and ought not to interfere with
the former. But where the legislature or the executive acts beyond the scope
of its constitutional powers, it becomes the duty of the judiciary to declare
what the other branches of the government had assumed to do as void. This
is the essence of judicial power conferred by the Constitution "in one
Supreme Court and in such lower courts as may be established by law" [Art.
VIII, Section 1 of the 1935 Constitution; Art. X, Section 1 of the 1973
Constitution and which was adopted as part of the Freedom Constitution,
and Art. VIII, Section 1 of the 1987 Constitutional and which power this Court
has exercised in many instances. **
Public respondents are being enjoined from acting under a provision of
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 law which We have earlier mentioned to be constitutionally infirm. The
general principle relied upon cannot therefore accord them the protection
sought as they are not acting within their "sphere of responsibility" but
without it.
The nation has not recovered from the shock, and worst, the economic
destitution brought about by the plundering of the Treasury by the deposed
dictator and his cohorts. A provision which allows even the slightest
possibility of a repetition of this sad experience cannot remain written in our
statute books.
WHEREFORE, the instant petition is granted. Paragraph 1 of Section 44
of Presidential Decree No. 1177 is hereby declared null and void for being
unconstitutional. Cdpr

SO ORDERED.
Teehankee, C .J ., Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez,
Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ .,
concur.

Footnotes
1. Petition, p. 3, Rollo.
2. pp. 6-7, Rollo.

3. p. 169, Rollo.
4. The relevant portions read as follows:
"The Court developed, for its own governance in the case confessedly
within its jurisdiction, a series of rules under which it has avoided passing
upon a large part of all the constitutional questions pressed upon it for
decision. They are:
"1. The Court will not pass upon the constitutionality of legislation in a
friendly, non-adversary proceeding, declining because to decide such
questions 'is legitimate only in the last resort, and as a necessity in the
determination of real, earnest and vital controversy between individuals. It
never was the thought that, by means of a friendly suit, a party beaten in the
legislature could transfer to the courts an inquiry as to the constitutionality of
the legislative act.' Chicago & Grand Trunk Ry, v. Wellman, 143 U.S. 339,
345.

"2. The Court will not 'anticipate question of constitutional law in

advance of the necessity of deciding it.' Liverpool. N.Y. & P.S.S. Co. v.
Emigration Commissioners, 113 U.S. 33, 39 . . . 'It is not the habit of the Court
to decide questions of a constitutional nature unless absolutely necessary to
a decision of the case.' Burton v. United States. 196 U.S. 283, 295.
"3. The Court will not 'formulate a rule of constitutional law broader
than is required by the precise facts to which it is to be applied." Liverpool,
N.Y. & P.S.S. Co. v. Emigration Commissioners, supra.
"4. The Court will not pass upon a constitutional question although
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 properly presented by the record, if there is also present some other ground
upon which the case may be disposed of. This rule has found most varied
application. Thus, if a case can be decided on either of two grounds, one
involving a constitutional question, the other a question of statutory
construction or general law, the Court will decide only the latter. Siler v.
Louisville & Nashville R. Co., 213 U.S. 175, 191; Light v. United States, 220
U.S. 523, 538. Appeals from the highest court of a state challenging its
decision of a question under the Federal Constitution are frequently
dismissed because the judgment can be sustained on an independent state
ground. Berea College v. Kentucky, 211 U.S. 45, 53.
"5. The Court will not pass upon the validity of a statute upon
complaint of one who fails to show that he is injured by its operation. Tyler v.
The Judges, 179 U.S. 405; Hendrick v. Maryland, 235 U.S. 610, 621. Among
the many applications of this rule, none is more striking than the denial of
the right of challenge to one who lacks a personal or property right. Thus, the
challenge by a public official interested only in the performance of his official
duty will not be entertained . . . In Fairchild v. Hughes, 258 U.S. 126, the
Court affirmed the dismissal of a suit brought by a citizen who sought to have
the Nineteenth Amendment declared unconstitutional. In Massachusetts v.
Mellon, 262 U.S. 447, the challenge of the federal Maternity Act was not
entertained although made by the Commonwealth on behalf of all its
citizens.
"6. The Court will not pass upon the constitutionality of a statute at the
instance of one who has availed himself of its benefits. Great Falls Mfg. Co. v.
Attorney General, 124, U.S. 581 . . .
"7. 'When the validity of an act of the Congress is drawn in question,
and even if a serious doubt of constitutionality is raised, it is a cardinal
principle that this Court will first ascertain whether a construction of the
statute is fairly possible by which the question may be avoided.' Cromwell v.
Benson, 285 U.S. 22, 62." [pp. 176-177, Rollo].
5. p. 14, Rollo.
** Casanovas vs. Hord, 8 Phil. 125; McGirr vs. Hamilton, 30 Phil. 563; Compañia
General de Tabacos vs. Board of Public Utility, 34 Phil. 136; Central Capiz vs.
Ramirez, 40 Phil. 883; Concepcion vs. Paredes, 42 Phil 599; US vs. Ang Tang
Ho, 43 Phil. 6; Mc Daniel vs. Apacible, 44 Phil. 248; People vs. Pomar, 46 Phil.
440; Agcaoili vs. Suguitan, 48 Phil. 676; Government of P.I. vs. Springer, 50
Phil. 259; Manila Electric Co. vs. Pasay Transp. Co., 57 Phil. 600; People vs.
Linsangan; 62 Phil. 464; People and Hongkong & Shanghai Banking Corp. vs.
Jose O. Vera, 65 Phil. 56; People vs. Carlos, 78 Phil. 535; City of Baguio vs.
Nawasa, 106 Phil. 144; City of Cebu vs. Nawasa, 107 Phil. 1112; Rutter vs.
Esteban, 93 Phil. 68.

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