[COMPREHENSIVE DIGEST] Belgica v. Executive Secretary

Click here for the shorter digest (substantive issues only).

Click here for the full text of the Decision.

* FACTS: 

HISTORY

In the Philippines, the “pork barrel” (a term of American-English origin) has been commonly referred to as lump-sum, discretionary funds of Members of the Legislature (“Congressional Pork Barrel”). However, it has also come to refer to certain funds to the Executive. The “Congressional Pork Barrel” can be traced from Act 3044 (Public Works Act of 1922), the Support for Local Development Projects during the Marcos period, the Mindanao Development Fund and Visayas Development Fund and later the Countrywide Development Fund (CDF) under the Corazon Aquino presidency, and the Priority Development Assistance Fund (PDAF) under the Joseph Estrada administration, as continued by the Gloria-Macapagal Arroyo and the present Benigno Aquino III administrations.

SPECIAL PROVISIONS OF THE 2013 PDAF ARTICLE

2. Project Identification. Identification of projects and/or designation of beneficiaries shall conform to the priority list, standard or design prepared by each implementing agency: PROVIDED, That preference shall be given to projects located in the 4th to 6th class municipalities or indigents identified under the MHTS-PR by the DSWD. For this purpose, the implementing agency shall submit to Congress said priority list, standard or design within ninety (90) days from effectivity of this Act.

All programs/projects, except for assistance to indigent patients and scholarships, identified by a member of the House of Representatives outside of his/her legislative district shall have the written concurrence of the member of the House of Representatives of the recipient or beneficiary legislative district, endorsed by the Speaker of the House of Representatives.

3. Legislator’s Allocation. The Total amount of projects to be identified by legislators shall be as follows:

a. For Congressional District or Party-List Representative: Thirty Million Pesos (P30,000,000) for soft programs and projects listed under Item A and Forty Million Pesos (P40,000,000) for infrastructure projects listed under Item B, the purposes of which are in the project menu of Special Provision No. 1; and

b. For Senators: One Hundred Million Pesos (P100,000,000) for soft programs and projects listed under Item A and One Hundred Million Pesos (P100,000,000) for infrastructure projects listed under Item B, the purposes of which are in the project menu of Special Provision No. 1.

Subject to the approved fiscal program for the year and applicable Special Provisions on the use and release of fund, only fifty percent (50%) of the foregoing amounts may be released in the first semester and the remaining fifty percent (50%) may be released in the second semester.

4. Realignment of Funds. Realignment under this Fund may only be allowed once. The Secretaries of Agriculture, Education, Energy, Interior and Local Government, Labor and Employment, Public Works and Highways, Social Welfare and Development and Trade and Industry are also authorized to approve realignment from one project/scope to another within the allotment received from this Fund, subject to the following: (i) for infrastructure projects, realignment is within the same implementing unit and same project category as the original project; (ii) allotment released has not yet been obligated for the original project/scope of work; and (iii) request is with the concurrence of the legislator concerned. The DBM must be informed in writing of any realignment within five (5) calendar days from approval thereof: PROVIDED, That any realignment under this Fund shall be limited within the same classification of soft or hard programs/projects listed under Special Provision 1 hereof: PROVIDED, FURTHER, That in case of realignments, modifications and revisions of projects to be implemented by LGUs, the LGU concerned shall certify that the cash has not yet been disbursed and the funds have been deposited back to the BTr.

Any realignment, modification and revision of the project identification shall be submitted to the House Committee on Appropriations and the Senate Committee on Finance, for favorable endorsement to the DBM or the implementing agency, as the case may be.

5. Release of Funds. All request for release of funds shall be supported by the documents prescribed under Special Provision No. 1 and favorably endorsed by the House Committee on Appropriations and the Senate Committee on Finance, as the case may be. Funds shall be released to the implementing agencies subject to the conditions under Special Provision No. 1 and the limits prescribed under Special Provision No. 3.

PRESIDENTIAL PORK BARREL

The “Presidential Pork Barrel” questioned by the petitioners include the Malampaya Fund and the Presidential Social Fund. The Malampaya Fund was created as a special fund under Section 8, Presidential Decree (PD) 910 by then-President Ferdinand Marcos to help intensify, strengthen, and consolidate government efforts relating to the exploration, exploitation, and development of indigenous energy resources vital to economic growth. The Presidential Social Fund was created under Section 12, Title IV, PD 1869 (1983) or the Charter of the Philippine Amusement and Gaming Corporation (PAGCOR), as amended by PD 1993 issued in 1985. The Presidential Social Fund has been described as a special funding facility managed and administered by the Presidential Management Staff through which the President provides direct assistance to priority programs and projects not funded under the regular budget. It is sourced from the share of the government in the aggregate gross earnings of PAGCOR.

 

* ISSUES:

A. Procedural Issues

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

2.) WON the issues raised in the consolidated petitions are matters of policy subject to judicial review

3.) WON petitioners have legal standing to sue

4.) WON the 1994 Decision of the Supreme Court (the Court) on Philippine Constitution Association v. Enriquez (Philconsa) and the 2012 Decision of the Court on Lawyers Against Monopoly and Poverty v. Secretary of Budget and Management (LAMP) bar the re-litigation of the issue of constitutionality of the “pork barrel system” under the principles of res judicata and stare decisis

B. Substantive Issues on the “Congressional Pork Barrel”

WON the 2013 PDAF Article and all other Congressional Pork Barrel Laws similar to it are unconstitutional considering that they violate the principles of/constitutional provisions on…

1.) …separation of powers

2.) …non-delegability of legislative power

3.) …checks and balances

4.) …accountability

5.) …political dynasties

6.) …local autonomy

C. Substantive Issues on the “Presidential Pork Barrel”

WON the phrases:

(a) “and for such other purposes as may be hereafter directed by the President” under Section 8 of PD 910 relating to the Malampaya Funds, and

(b) “to finance the priority infrastructure development projects and to finance the restoration of damaged or destroyed facilities due to calamities, as may be directed and authorized by the Office of the President of the Philippines” under Section 12 of PD 1869, as amended by PD 1993, relating to the Presidential Social Fund,

are unconstitutional insofar as they constitute undue delegations of legislative power

* HELD AND RATIO:

A. Procedural Issues

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, namely: (a) there must be an actual case or controversy calling for the exercise of judicial power; (b) the person challenging the act must have the standing to question the validity of the subject act or issuance; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must be the very lis mota of the case.

1.) YES. There exists an actual and justiciable controversy in these cases. The requirement of contrariety of legal rights is clearly satisfied by the antagonistic positions of the parties on the constitutionality of the “Pork Barrel System.” Also, the questions in these consolidated cases are ripe for adjudication since the challenged funds and the provisions allowing for their utilization – such as the 2013 GAA for the PDAF, PD 910 for the Malampaya Funds and PD 1869, as amended by PD 1993, for the Presidential Social Fund – are currently existing and operational; hence, there exists an immediate or threatened injury to petitioners as a result of the unconstitutional use of these public funds.

As for the PDAF, the Court dispelled the notion that the issues related thereto had been rendered moot and academic by the reforms undertaken by respondents. A case becomes moot when there is no more actual controversy between the parties or no useful purpose can be served in passing upon the merits. The respondents’ proposed line-item budgeting scheme would not terminate the controversy nor diminish the useful purpose for its resolution since said reform is geared towards the 2014 budget, and not the 2013 PDAF Article which, being a distinct subject matterremains legally effective and existing. Neither will the President’s declaration that he had already “abolished the PDAF” render the issues on PDAF moot precisely because the Executive branch of government has no constitutional authority to nullify or annul its legal existence.

Even on the assumption of mootness, nevertheless, jurisprudence dictates that “the ‘moot and academic’ principle is not a magical formula that can automatically dissuade the Court in resolving a case.” The Court will decide cases, otherwise moot, if:

i.) There is a grave violation of the Constitution: This is clear from the fundamental posture of petitioners – they essentially allege grave violations of the Constitution with respect to the principles of separation of powers, non-delegability of legislative power, checks and balances, accountability and local autonomy.

ii.) The exceptional character of the situation and the paramount public interest is involved: This is also apparent from the nature of the interests involved – the constitutionality of the very system within which significant amounts of public funds have been and continue to be utilized and expended undoubtedly presents a situation of exceptional character as well as a matter of paramount public interest. The present petitions, in fact, have been lodged at a time when the system’s flaws have never before been magnified. To the Court’s mind, the coalescence of the CoA Report, the accounts of numerous whistle-blowers, and the government’s own recognition that reforms are needed “to address the reported abuses of the PDAF” demonstrates a prima facie pattern of abuse which only underscores the importance of the matter.

It is also by this finding that the Court finds petitioners’ claims as not merely theorized, speculative or hypothetical. Of note is the weight accorded by the Court to the findings made by the CoA which is the constitutionally-mandated audit arm of the government. if only for the purpose of validating the existence of an actual and justiciable controversy in these cases, the Court deems the findings under the CoA Report to be sufficient.

iii.) When the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public: This is  applicable largely due to the practical need for a definitive ruling on the system’s constitutionality. There is a compelling need to formulate controlling principles relative to the issues raised herein in order to guide the bench, the bar, and the public, not just for the expeditious resolution of the anticipated disallowance cases, but more importantly, so that the government may be guided on how public funds should be utilized in accordance with constitutional principles.

iv.) The case is capable of repetition yet evading review. This is called for by the recognition that the preparation and passage of the national budget is, by constitutional imprimatur, an affair of annual occurrence. The myriad of issues underlying the manner in which certain public funds are spent, if not resolved at this most opportune time, are capable of repetition and hence, must not evade judicial review.

2.) YES. The intrinsic constitutionality of the “Pork Barrel System” is not an issue dependent upon the wisdom of the political branches of government but rather a legal one which the Constitution itself has commanded the Court to act upon. Scrutinizing the contours of the system along constitutional lines is a task that the political branches of government are incapable of rendering precisely because it is an exercise of judicial power. More importantly, the present Constitution has not only vested the Judiciary the right to exercise judicial power but essentially makes it a duty to proceed therewith (Section 1, Article VIII of the 1987 Constitution).

3. YES. Petitioners have sufficient locus standi to file the instant cases. Petitioners have come before the Court in their respective capacities as citizen-taxpayers and accordingly, assert that they “dutifully contribute to the coffers of the National Treasury.” As taxpayers, they possess the requisite standing to question the validity of the existing “Pork Barrel System” under which the taxes they pay have been and continue to be utilized. They are bound to suffer from the unconstitutional usage of public funds, if the Court so rules. Invariably, taxpayers have been allowed to sue where there is a claim that public funds are illegally disbursed or that public money is being deflected to any improper purpose, or that public funds are wasted through the enforcement of an invalid or unconstitutional law, as in these cases.

Moreover, as citizens, petitioners have equally fulfilled the standing requirement given that the issues they have raised may be classified as matters “of transcendental importance, of overreaching significance to society, or of paramount public interest.” The CoA Chairperson’s statement during the Oral Arguments that the present controversy involves “not [merely] a systems failure” but a “complete breakdown of controls” amplifies the seriousness of the issues involved. Indeed, of greater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute.

4.) NO. On the one hand, res judicata states that a judgment on the merits in a previous case rendered by a court of competent jurisdiction would bind a subsequent case if, between the first and second actions, there exists an identity of parties, of subject matter, and of causes of action. This required identity is not attendant hereto since Philconsa and LAMP involved constitutional challenges against the 1994 CDF Article and 2004 PDAF Article respectively. However, the cases at bar call for a broader constitutional scrutiny of the entire “Pork Barrel System”. Also, the ruling in LAMP is essentially a dismissal based on a procedural technicality – and, thus, hardly a judgment on the merits. Thus, res judicata cannot apply.

On the other hand, the doctrine of stare decisis is a bar to any attempt to re-litigate where the same questions relating to the same event have been put forward by the parties similarly situated as in a previous case litigated and decided by a competent court. Absent any powerful countervailing considerations, like cases ought to be decided alike. Philconsa was a limited response to a separation of powers problem, specifically on the propriety of conferring post-enactment identification authority to Members of Congress. On the contrary, the present cases call for a more holistic examination of (a) the inter-relation between the CDF and PDAF Articles with each other, formative as they are of the entire “Pork Barrel System” as well as (b) the intra-relation of post-enactment measures contained within a particular CDF or PDAF Article, including not only those related to the area of project identification but also to the areas of fund release and realignment. The complexity of the issues and the broader legal analyses herein warranted may be, therefore, considered as a powerful countervailing reason against a wholesale application of the stare decisis principle.

In addition, the Court observes that the Philconsa ruling was actually riddled with inherent constitutional inconsistencies which similarly countervail against a full resort to stare decisis. Since the Court now benefits from hindsight and current findings (such as the CoA Report), it must partially abandon its previous ruling in Philconsa insofar as it validated the post-enactment identification authority of Members of Congress on the guise that the same was merely recommendatory.

Again, since LAMP was dismissed on a procedural technicality and, hence, has not set any controlling doctrine susceptible of current application to the substantive issues in these cases, stare decisis would not apply.

B. Substantive Issues on the “Congressional Pork Barrel”

1.) YES. At its core, legislators have been consistently accorded post-enactment authority to identify the projects they desire to be funded through various Congressional Pork Barrel allocations. Under the 2013 PDAF Article, the statutory authority of legislators to identify projects post-GAA may be construed from Special Provisions 1 to 3 and the second paragraph of Special Provision 4. Legislators have also been accorded post-enactment authority in the areas of fund release (Special Provision 5 under the 2013 PDAF Article) and realignment (Special Provision 4, paragraphs 1 and 2 under the 2013 PDAF Article).

Thus, legislators have been, in one form or another, authorized to participate in “the various operational aspects of budgeting,” including “the evaluation of work and financial plans for individual activities” and the “regulation and release of funds”, in violation of the separation of powers principle. That the said authority is treated as merely recommendatory in nature does not alter its unconstitutional tenor since the prohibition covers any role in the implementation or enforcement of the law. Towards this end, the Court must therefore abandon its ruling in Philconsa. The Court also points out that respondents have failed to substantiate their position that the identification authority of legislators is only of recommendatory import.

In addition to declaring the 2013 PDAF Article as well as all other provisions of law which similarly allow legislators to wield any form of post-enactment authority in the implementation or enforcement of the budget, the Court also declared that informal practices, through which legislators have effectively intruded into the proper phases of budget execution, must be deemed as acts of grave abuse of discretion amounting to lack or excess of jurisdiction and, hence, accorded the same unconstitutional treatment.

2.) YES. The 2013 PDAF Article violates the principle of non-delegability since legislators are effectively allowed to individually exercise the power of appropriationwhich, as settled in Philconsais lodged in Congress. The power to appropriate must be exercised only through legislation, pursuant to Section 29(1), Article VI of the 1987 Constitution which states: “No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.” The power of appropriation, as held by the Court in Bengzon v. Secretary of Justice and Insular Auditor, involves (a) setting apart by law  a certain sum from the public revenue for (b) a specified purpose. Under the 2013 PDAF Article, individual legislators are given a personal lump-sum fund from which they are able to dictate (a) how much from such fund would go to (b) a specific project or beneficiary that they themselves also determine. Since these two acts comprise the exercise of the power of appropriation as described in Bengzon, and given that the 2013 PDAF Article authorizes individual legislators to perform the same, undoubtedly, said legislators have been conferred the power to legislate which the Constitution does not, however, allow.

3.) YES. Under the 2013 PDAF Article, the amount of P24.79 Billion only appears as a collective allocation limit since the said amount would be further divided among individual legislators who would then receive personal lump-sum allocations and could, after the GAA is passed, effectively appropriate PDAF funds based on their own discretion. As these intermediate appropriations are made by legislators only after the GAA is passed and hence, outside of the law, it means that the actual items of PDAF appropriation would not have been written into the General Appropriations Bill and thus effectuated without veto consideration. This kind of lump-sum/post-enactment legislative identification budgeting system fosters the creation of a “budget within a budget” which subverts the prescribed procedure of presentment and consequently impairs the President’s power of item veto. As petitioners aptly point out, the President is forced to decide between (a) accepting the entire P24. 79 Billion PDAF allocation without knowing the specific projects of the legislators, which may or may not be consistent with his national agenda and (b) rejecting the whole PDAF to the detriment of all other legislators with legitimate projects.

Even without its post-enactment legislative identification feature, the 2013 PDAF Article would remain constitutionally flawed since the lump-sum amount of P24.79 Billion would be treated as a mere funding source allotted for multiple purposes of spending (i.e. scholarships, medical missions, assistance to indigents, preservation of historical materials, construction of roads, flood control, etc). This setup connotes that the appropriation law leaves the actual amounts and purposes of the appropriation for further determination and, therefore, does not readily indicate a discernible item which may be subject to the President’s power of item veto.

The same lump-sum budgeting scheme has, as the CoA Chairperson relays, “limit[ed] state auditors from obtaining relevant data and information that would aid in more stringently auditing the utilization of said Funds.” Accordingly, she recommends the adoption of a “line by line budget or amount per proposed program, activity or project, and per implementing agency.”

4.) YES. To a certain extent, the conduct of oversight would be tainted as said legislators, who are vested with post-enactment authority, would, in effect, be checking on activities in which they themselves participate. Also, this very same concept of post-enactment authorization runs afoul of Section 14, Article VI of the 1987 Constitution which provides that: “…[A Senator or Member of the House of Representatives] shall not intervene in any matter before any office of the Government for his pecuniary benefit or where he may be called upon to act on account of his office.” Allowing legislators to intervene in the various phases of project implementation renders them susceptible to taking undue advantage of their own office.

However, the Court  cannot completely agree that the same post-enactment authority and/or the individual legislator’s control of his PDAF per se would allow him to perpetrate himself in office. This is a matter which must be analyzed based on particular facts and on a case-to-case basis.

Also, while the Court accounts for the possibility that the close operational proximity between legislators and the Executive department, through the former’s post-enactment participation, may affect the process of  impeachment, this matter largely borders on the domain of politics and does not strictly concern the Pork Barrel System’s intrinsic constitutionality. As such, it is an improper subject of judicial assessment.

5.) NO. Section 26, Article II of the 1987 Constitution is considered as not self-executing due to the qualifying phrase “as may be defined by law.” In this respect, said provision does not, by and of itself, provide a judicially enforceable constitutional right but merely specifies a guideline for legislative or executive action. Therefore, since there appears to be no standing law which crystallizes the policy on political dynasties for enforcement, the Court must defer from ruling on this issue.

In any event, the Court finds the above-stated argument on this score to be largely speculative since it has not been properly demonstrated how the Pork Barrel System would be able to propagate political dynasties.

6.) YES.  The Court, however, finds an inherent defect in the system which actually belies the avowed intention of “making equal the unequal” (Philconsa, 1994). The gauge of PDAF and CDF allocation/division is based solely on the fact of office, without taking into account the specific interests and peculiarities of the district the legislator represents. As a result, a district representative of a highly-urbanized metropolis gets the same amount of funding as a district representative of a far-flung rural province which would be relatively “underdeveloped” compared to the former. To add, what rouses graver scrutiny is that even Senators and Party-List Representatives – and in some years, even the Vice-President – who do not represent any locality, receive funding from the Congressional Pork Barrel as well.

The Court also observes that this concept of legislator control underlying the CDF and PDAF conflicts with the functions of the various Local Development Councils (LDCs) which are already legally mandated to “assist the corresponding sanggunian in setting the direction of economic and social development, and coordinating development efforts within its territorial jurisdiction.” Considering that LDCs are instrumentalities whose functions are essentially geared towards managing local affairs, their programs, policies and resolutions should not be overridden nor duplicated by individual legislators, who are national officers that have no law-making authority except only when acting as a body.

C. Substantive Issues on the “Presidential Pork Barrel”

YES. Regarding the Malampaya Fund: The phrase “and for such other purposes as may be hereafter directed by the President” under Section 8 of PD 910 constitutes an undue delegation of legislative power insofar as it does not lay down a sufficient standard to adequately determine the limits of the President’s authority with respect to the purpose for which the Malampaya Funds may be used. As it reads, the said phrase gives the President wide latitude to use the Malampaya Funds for any other purpose he may direct and, in effect, allows him to unilaterally appropriate public funds beyond the purview of the law.

That the subject phrase may be confined only to “energy resource development and exploitation programs and projects of the government” under the principle of ejusdem generis, meaning that the general word or phrase is to be construed to include – or be restricted to – things akin to, resembling, or of the same kind or class as those specifically mentioned, is belied by three (3) reasons: first, the phrase “energy resource development and exploitation programs and projects of the government” states a singular and general class and hence, cannot be treated as a statutory reference of specific things from which the general phrase “for such other purposes” may be limited; second, the said phrase also exhausts the class it represents, namely energy development programs of the government; and, third, the Executive department has used the Malampaya Funds for non-energy related purposes under the subject phrase, thereby contradicting respondents’ own position that it is limited only to “energy resource development and exploitation programs and projects of the government.”

However, the rest of Section 8, insofar as it allows for the use of the Malampaya Funds “to finance energy resource development and exploitation programs and projects of the government,” remains legally effective and subsisting.

Regarding the Presidential Social FundSection 12 of PD 1869, as amended by PD 1993, indicates that the Presidential Social Fund may be used “to [first,] finance the priority infrastructure development projects and [second,] to finance the restoration of damaged or destroyed facilities due to calamities, as may be directed and authorized by the Office of the President of the Philippines.”

The second indicated purpose adequately curtails the authority of the President to spend the Presidential Social Fund only for restoration purposes which arise from calamities. The first indicated purpose, however, gives him carte blanche authority to use the same fund for any infrastructure project he may so determine as a “priority“. Verily, the law does not supply a definition of “priority infrastructure development projects” and hence, leaves the President without any guideline to construe the same. To note, the delimitation of a project as one of “infrastructure” is too broad of a classification since the said term could pertain to any kind of facility. Thus, the phrase “to finance the priority infrastructure development projects” must be stricken down as unconstitutional since – similar to Section 8 of PD 910 – it lies independently unfettered by any sufficient standard of the delegating law. As they are severable, all other provisions of Section 12 of PD 1869, as amended by PD 1993, remains legally effective and subsisting.

CASE DIGEST: Imbong v Ochoa, et al. (G.R. Nos. 204819, 204934, 204957, 205003, 205138, 204988, 205043, 205478, 205491, 205720, 206355, 207111, 207172, 207563)

Click here for the full text of the Decision.

Read the RH Law (RA 10354) here.

Read the IRR of the RH Law here.

Read enforcement mechanisms of the RH Law with the unconstitutional provisions stricken out here.

* SUBSTANTIVE ISSUES:

A. On the constitutionality of RA 10354/Reproductive Health (RH) Law

1. Whether or not (WON) RA 10354/Reproductive Health (RH) Law is unconstitutional for violating the right to life:

NO. Majority of the Members of the Court believe that the question of when life begins is a scientific and medical issue that should not be decided, at this stage, without proper hearing and evidence. However, they agreed that individual Members could express their own views on this matter.

Ponente’s view (Justice Mendoza): Article II, Section 12 of the Constitution states: “The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception.

In its plain and ordinary meaning (a canon in statutory construction), the traditional meaning of “conception” according to reputable dictionaries cited by the ponente is that life begins at fertilization. Medical sources also support the view that conception begins at fertilization.

The framers of the Constitution also intended for (a) “conception” to refer to the moment of “fertilization” and (b) the protection of the unborn child upon fertilization. In addition, they did not intend to ban all contraceptives for being unconstitutional; only those that kill or destroy the fertilized ovum would be prohibited. Contraceptives that actually prevent the union of the male sperm and female ovum, and those that similarly take action before fertilization should be deemed non-abortive, and thus constitutionally permissible.

The intent of the framers of the Constitution for protecting the life of the unborn child was to prevent the Legislature from passing a measure prevent abortion. The Court cannot interpret this otherwise. The RH Law is in line with this intent and actually prohibits abortion. By using the word “or” in defining abortifacient (Section 4(a)), the RH Law prohibits not only drugs or devices that prevent implantation but also those that induce abortion and induce the destruction of a fetus inside the mother’s womb. The RH Law recognizes that the fertilized ovum already has life and that the State has a bounded duty to protect it.

However, the authors of the IRR gravely abused their office when they redefined the meaning of abortifacient by using the term “primarily”. Recognizing as abortifacients only those that “primarily induce abortion or the destruction of a fetus inside the mother’s womb or the prevention of the fertilized ovum to reach and be implanted in the mother’s womb” (Sec. 3.01(a) of the IRR) would pave the way for the approval of contraceptives that may harm or destroy the life of the unborn from conception/fertilization. This violates Section 12, Article II of the Constitution. For the same reason, the definition of contraceptives under the IRR (Sec 3.01(j)), which also uses the term “primarily”, must be struck down.

2. Whether or not (WON) RA 10354/Reproductive Health (RH) Law is unconstitutional for violating the right to health

NO. Petitioners claim that the right to health is violated by the RH Law because it requires the inclusion of hormonal contraceptives, intrauterine devices, injectables and other safe, legal, non-abortifacient and effective family planning products and supplies in the National Drug Formulary and in the regular purchase of essential medicines and supplies of all national hospitals (Section 9 of the RH Law). They cite risks of getting diseases gained by using e.g. oral contraceptive pills.

Some petitioners do not question contraception and contraceptives per se. Rather, they pray that the status quo under RA 4729 and 5921 be maintained. These laws prohibit the sale and distribution of contraceptives without the prescription of a duly-licensed physician.

The RH Law does not intend to do away with RA 4729 (1966). With RA 4729 in place, the Court believes adequate safeguards exist to ensure that only safe contraceptives are made available to the public. In fulfilling its mandate under Sec. 10 of the RH Law, the DOH must keep in mind the provisions of RA 4729: the contraceptives it will procure shall be from a duly licensed drug store or pharmaceutical company and that the actual distribution of these contraceptive drugs and devices will be done following a prescription of a qualified medical practitioner.

Meanwhile, the requirement of Section 9 of the RH Law is to be considered “mandatory” only after these devices and materials have been tested, evaluated and approved by the FDA. Congress cannot determine that contraceptives are “safe, legal, non-abortificient and effective”.

3. Whether or not (WON) RA 10354/Reproductive Health (RH) Law is unconstitutional for violating the freedom of religion and right to free speech 

The Court cannot determine whether or not the use of contraceptives or participation in support of modern RH measures (a) is moral from a religious standpoint; or, (b) right or wrong according to one’s dogma or belief. However, the Court has the authority to determine whether or not the RH Law contravenes the Constitutional guarantee of religious freedom.

a.) WON the RH Law violates the guarantee of religious freedom since it mandates the State-sponsored procurement of contraceptives, which contravene the religious beliefs of e.g. the petitioners

NO. The State may pursue its legitimate secular objectives without being dictated upon the policies of any one religion. To allow religious sects to dictate policy or restrict other groups would violate Article III, Section 5 of the Constitution or the Establishment Clause. This would cause the State to adhere to a particular religion, and thus, establishes a state religion. Thus, the State can enhance its population control program through the RH Law even if the promotion of contraceptive use is contrary to the religious beliefs of e.g. the petitioners.

b.) WON the RH Law violates the guarantee of religious freedom by compelling medical health practitioners, hospitals, and health care providers, under pain of penalty, to refer patients to other institutions despite their conscientious objections

YES. Sections 7, 23, and 24 of the RH Law obliges a hospital or medical practitioner to immediately refer a person seeking health care and services under the law to another accessible healthcare provider despite their conscientious objections based on religious or ethical beliefs. These provisions violate the religious belief and conviction of a conscientious objector. They are contrary to Section 29(2), Article VI of the Constitution or the Free Exercise Clause, whose basis is the respect for the inviolability of the human conscience.

The provisions in the RH Law compelling non-maternity specialty hospitals and hospitals owned and operated by a religious group and health care service providers to refer patients to other providers and penalizing them if they fail to do so (Sections 7 and 23(a)(3)) as well as compelling them to disseminate information and perform RH procedures under pain of penalty (Sections 23(a)(1) and (a)(2) in relation to Section 24) also violate (and inhibit) the freedom of religion. While penalties may be imposed by law to ensure compliance to it, a constitutionally-protected right must prevail over the effective implementation of the law. 

Excluding public health officers from being conscientious objectors (under Sec. 5.24 of the IRR) also violates the equal protection clause. There is no perceptible distinction between public health officers and their private counterparts. In addition, the freedom to believe is intrinsic in every individual and the protection of this freedom remains even if he/she is employed in the government.

Using the compelling state interest test, there is no compelling state interest to limit the free exercise of conscientious objectors. There is no immediate danger to the life or health of an individual in the perceived scenario of the above-quoted provisions. In addition, the limits do not pertain to life-threatening cases.

The respondents also failed to show that these provisions are least intrusive means to achieve a legitimate state objective. The Legislature has already taken other secular steps to ensure that the right to health is protected, such as RA 4729, RA 6365 (The Population Act of the Philippines) and RA 9710 (The Magna Carta of Women).

c.) WON the RH Law violates the guarantee of religious freedom by requiring would-be spouses, as a condition for the issuance of a marriage license, to attend a seminar on parenthood, family planning, breastfeeding and infant nutrition

NO. Section 15 of the RH Law, which requires would-be spouses to attend a seminar on parenthood, family planning, breastfeeding and infant nutrition as a condition for the issuance of a marriage license, is a reasonable exercise of police power by the government. The law does not even mandate the type of family planning methods to be included in the seminar. Those who attend the seminar are free to accept or reject information they receive and they retain the freedom to decide on matters of family life without the intervention of the State.

4. Whether or not (WON) RA 10354/Reproductive Health (RH) Law is unconstitutional for violating the right to privacy (marital privacy and autonomy)

YES. Section 23(a)(2)(i) of the RH Law, which permits RH procedures even with only the consent of the spouse undergoing the provision (disregarding spousal content), intrudes into martial privacy and autonomy and goes against the constitutional safeguards for the family as the basic social institution. Particularly, Section 3, Article XV of the Constitution mandates the State to defend: (a) the right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood and (b) the right of families or family associations to participate in the planning and implementation of policies and programs that affect them. The RH Law cannot infringe upon this mutual decision-making, and endanger the institutions of marriage and the family.

The exclusion of parental consent in cases where a minor undergoing a procedure is already a parent or has had a miscarriage (Section 7 of the RH Law) is also anti-family and violates Article II, Section 12 of the Constitution, which states: “The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.” In addition, the portion of Section 23(a)(ii) which reads “in the case of minors, the written consent of parents or legal guardian or, in their absence, persons exercising parental authority or next-of-kin shall be required only in elective surgical procedures” is invalid as it denies the right of parental authority in cases where what is involved is “non-surgical procedures.”

However, a minor may receive information (as opposed to procedures) about family planning services. Parents are not deprived of parental guidance and control over their minor child in this situation and may assist her in deciding whether to accept or reject the information received. In addition, an exception may be made in life-threatening procedures.

5. Whether or not (WON) RA 10354/Reproductive Health (RH) Law is unconstitutional for violating the freedom of expression and academic freedom

NO. The Court declined to rule on the constitutionality of Section 14 of the RH Law, which mandates the State to provide Age-and Development-Appropriate Reproductive Health Education. Although educators might raise their objection to their participation in the RH education program, the Court reserves its judgment should an actual case be filed before it.

Any attack on its constitutionality is premature because the Department of Education has not yet formulated a curriculum on age-appropriate reproductive health education.

Section 12, Article II of the Constitution places more importance on the role of parents in the development of their children with the use of the term “primary”. The right of parents in upbringing their youth is superior to that of the State.

The provisions of Section 14 of the RH Law and corresponding provisions of the IRR supplement (rather than supplant) the right and duties of the parents in the moral development of their children.

By incorporating parent-teacher-community associations, school officials, and other interest groups in developing the mandatory RH program, it could very well be said that the program will be in line with the religious beliefs of the petitioners.

6. Whether or not (WON) RA 10354/Reproductive Health (RH) Law is unconstitutional for violating the due process clause

NO. The RH Law does not violate the due process clause of the Constitution as the definitions of several terms as observed by the petitioners are not vague.

The definition of “private health care service provider” must be seen in relation to Section 4(n) of the RH Law which defines a “public health service provider”. The “private health care institution” cited under Section 7 should be seen as synonymous to “private health care service provider.”

The terms “service” and “methods” are also broad enough to include providing of information and rendering of medical procedures. Thus, hospitals operated by religious groups are exempted from rendering RH service and modern family planning methods (as provided for by Section 7 of the RH Law) as well as from giving RH information and procedures.

The RH Law also defines “incorrect information”. Used together in relation to Section 23 (a)(1), the terms “incorrect” and “knowingly” connote a sense of malice and ill motive to mislead or misrepresent the public as to the nature and effect of programs and services on reproductive health.

7. Whether or not (WON) RA 10354/Reproductive Health (RH) Law is unconstitutional for violating the equal protection clause

NO. To provide that the poor are to be given priority in the government’s RH program is not a violation of the equal protection clause. In fact, it is pursuant to Section 11, Article XIII of the Constitution, which states that the State shall prioritize the needs of the underprivileged, sick, elderly, disabled, women, and children and that it shall endeavor to provide medical care to paupers.

The RH Law does not only seek to target the poor to reduce their number, since Section 7 of the RH Law prioritizes poor and marginalized couples who are suffering from fertility issues and desire to have children. In addition, the RH Law does not prescribe the number of children a couple may have and does not impose conditions upon couples who intend to have children. The RH Law only seeks to provide priority to the poor.

The exclusion of private educational institutions from the mandatory RH education program under Section 14 is valid. There is a need to recognize the academic freedom of private educational institutions especially with respect to religious instruction and to consider their sensitivity towards the teaching of reproductive health education.

8. Whether or not (WON) RA 10354/Reproductive Health (RH) Law is unconstitutional for violating the prohibition against involuntary servitude

NO. The requirement under Sec. 17 of the RH Law for private and non-government health care service providers to render 48 hours of pro bono RH services does not amount to involuntary servitude, for two reasons. First, the practice of medicine is undeniably imbued with public interest that it is both the power and a duty of the State to control and regulate it in order to protect and promote the public welfare. Second, Section 17 only encourages private and non-government RH service providers to render pro bono service. Besides the PhilHealth accreditation, no penalty is imposed should they do otherwise.

However, conscientious objectors are exempt from Sec. 17 as long as their religious beliefs do not allow them to render RH service, pro bono or otherwise (See Part 3b of this digest.)

B. WON the delegation of authority to the Food and Drug Administration (FDA) to determine WON a supply or product is to be included in the Essential Drugs List is valid

NO. The delegation by Congress to the FDA of the power to determine whether or not a supply or product is to be included in the Essential Drugs List is valid, as the FDA not only has the power but also the competency to evaluate, register and cover health services and methods (under RA 3720 as amended by RA 9711 or the FDA Act of 2009).

C. WON the RH Law infringes upon the powers devolved to Local Governments and the Autonomous Region in Muslim Mindanao (ARMM)

NO. The RH Law does not infringe upon the autonomy of local governments. Paragraph (c) of Section 17 provides a categorical exception of cases involving nationally-funded projects, facilities, programs and services. Unless a local government unit (LGU) is particularly designated as the implementing agency, it has no power over a program for which funding has been provided by the national government under the annual general appropriations act, even if the program involves the delivery of basic services within the jurisdiction of the LGU.

In addition, LGUs are merely encouraged to provide RH services. Provision of these services are not mandatory. Therefore, the RH Law does not amount to an undue encroachment by the national government upon the autonomy enjoyed by LGUs.

Article III, Sections 6, 10, and 11 of RA 9054 or the Organic Act of the ARMM merely delineates the powers that may be exercised by the regional government. These provisions cannot be seen as an abdication by the State of its power to enact legislation that would benefit the general welfare.

What’s left of the RH law?

We know the provisions stricken down by the Supreme Court in its ruling on Republic Act No. 10354 (or the Responsible Parenthood and Reproductive Health Act of 2012) for being unconstitutional (press statement at the top of this page). Let us look instead at the provisions that remain, specifically those to implement the legislative policy. Only time will tell whether these would be sufficient to implement the law.

Provisions declared by the Supreme Court as unconstitutional are stricken out. Feel free to point out any errors by commenting on this post. (Text below is taken from here)

SEC. 5. Hiring of Skilled Health Professionals for Maternal Health Care and Skilled Birth Attendance. – The LGUs shall endeavor to hire an adequate number of nurses, midwives and other skilled health professionals for maternal health care and skilled birth attendance to achieve an ideal skilled health professional-to-patient ratio taking into consideration DOH targets: Provided, That people in geographically isolated or highly populated and depressed areas shall be provided the same level of access to health care: Provided, further, That the national government shall provide additional and necessary funding and other necessary assistance for the effective implementation of this provision.

For the purposes of this Act, midwives and nurses shall be allowed to administer lifesaving drugs such as, but not limited to, oxytocin and magnesium sulfate, in accordance with the guidelines set by the DOH, under emergency conditions and when there are no physicians available: Provided, That they are properly trained and certified to administer these lifesaving drugs.

SEC. 6. Health Care Facilities. – Each LGU, upon its determination of the necessity based on well-supported data provided by its local health office shall endeavor to establish or upgrade hospitals and facilities with adequate and qualified personnel, equipment and supplies to be able to provide emergency obstetric and newborn care: Provided, That people in geographically isolated or highly populated and depressed areas shall have the same level of access and shall not be neglected by providing other means such as home visits or mobile health care clinics as needed:Provided, further, That the national government shall provide additional and necessary funding and other necessary assistance for the effective implementation of this provision.

SEC. 7. Access to Family Planning. – All accredited public health facilities shall provide a full range of modern family planning methods, which shall also include medical consultations, supplies and necessary and reasonable procedures for poor and marginalized couples having infertility issues who desire to have children: Provided, That family planning services shall likewise be extended by private health facilities to paying patients with the option to grant free care and services to indigents, except in the case of non-maternity specialty hospitals and hospitals owned and operated by a religious group, but they have the option to provide such full range of modern family planning methods: Provided, further, That these hospitals shall immediately refer the person seeking such care and services to another health facility which is conveniently accessible: Provided, finally, That the person is not in an emergency condition or serious case as defined in Republic Act No. 8344.

No person shall be denied information and access to family planning services, whether natural or artificial: Provided, That minors will not be allowed access to modern methods of family planning without written consent from their parents or guardian/s except when the minor is already a parent or has had a miscarriage.

SEC. 8. Maternal Death Review and Fetal and Infant Death Review. – All LGUs, national and local government hospitals, and other public health units shall conduct an annual Maternal Death Review and Fetal and Infant Death Review in accordance with the guidelines set by the DOH. Such review should result in an evidence-based programming and budgeting process that would contribute to the development of more responsive reproductive health services to promote women’s health and safe motherhood.

SEC. 9. The Philippine National Drug Formulary System and Family Planning Supplies. – The National Drug Formulary shall include hormonal contraceptives, intrauterine devices, injectables and other safe, legal, non-abortifacient and effective family planning products and supplies. The Philippine National Drug Formulary System (PNDFS) shall be observed in selecting drugs including family planning supplies that will be included or removed from the Essential Drugs List (EDL) in accordance with existing practice and in consultation with reputable medical associations in the Philippines. For the purpose of this Act, any product or supply included or to be included in the EDL must have a certification from the FDA that said product and supply is made available on the condition that it is not to be used as an abortifacient.

These products and supplies shall also be included in the regular purchase of essential medicines and supplies of all national hospitals: Provided, further, That the foregoing offices shall not purchase or acquire by any means emergency contraceptive pills, postcoital pills, abortifacients that will be used for such purpose and their other forms or equivalent.

SEC. 10. Procurement and Distribution of Family Planning Supplies. – The DOH shall procure, distribute to LGUs and monitor the usage of family planning supplies for the whole country. The DOH shall coordinate with all appropriate local government bodies to plan and implement this procurement and distribution program. The supply and budget allotments shall be based on, among others, the current levels and projections of the following:

(a) Number of women of reproductive age and couples who want to space or limit their children;

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

(c) Cost of family planning supplies.

Provided, That LGUs may implement its own procurement, distribution and monitoring program consistent with the overall provisions of this Act and the guidelines of the DOH.

SEC. 11. Integration of Responsible Parenthood and Family Planning Component in Anti-Poverty Programs. – A multidimensional approach shall be adopted in the implementation of policies and programs to fight poverty. Towards this end, the DOH shall implement programs prioritizing full access of poor and marginalized women as identified through the NHTS-PR and other government measures of identifying marginalization to reproductive health care, services, products and programs. The DOH shall provide such programs, technical support, including capacity building and monitoring.

SEC. 12. PhilHealth Benefits for Serious and Life-Threatening Reproductive Health Conditions. – All serious and life-threatening reproductive health conditions such as HIV and AIDS, breast and reproductive tract cancers, and obstetric complications, and menopausal and post-menopausal-related conditions shall be given the maximum benefits, including the provision of Anti-Retroviral Medicines (ARVs), as provided in the guidelines set by the Philippine Health Insurance Corporation (PHIC).

SEC. 13. Mobile Health Care Service. – The national or the local government may provide each provincial, city, municipal and district hospital with a Mobile Health Care Service (MHCS) in the form of a van or other means of transportation appropriate to its terrain, taking into consideration the health care needs of each LGU. The MHCS shall deliver health care goods and services to its constituents, more particularly to the poor and needy, as well as disseminate knowledge and information on reproductive health. The MHCS shall be operated by skilled health providers and adequately equipped with a wide range of health care materials and information dissemination devices and equipment, the latter including, but not limited to, a television set for audio-visual presentations. All MHCS shall be operated by LGUs of provinces and highly urbanized cities.

SEC. 14. Age- and Development-Appropriate Reproductive Health Education. – The State shall provide age- and development-appropriate reproductive health education to adolescents which shall be taught by adequately trained teachers informal and nonformal educational system and integrated in relevant subjects such as, but not limited to, values formation; knowledge and skills in self-protection against discrimination; sexual abuse and violence against women and children and other forms of gender based violence and teen pregnancy; physical, social and emotional changes in adolescents; women’s rights and children’s rights; responsible teenage behavior; gender and development; and responsible parenthood: Provided, That flexibility in the formulation and adoption of appropriate course content, scope and methodology in each educational level or group shall be allowed only after consultations with parents-teachers-community associations, school officials and other interest groups. The Department of Education (DepED) shall formulate a curriculum which shall be used by public schools and may be adopted by private schools.

SEC. 15. Certificate of Compliance. – No marriage license shall be issued by the Local Civil Registrar unless the applicants present a Certificate of Compliance issued for free by the local Family Planning Office certifying that they had duly received adequate instructions and information on responsible parenthood, family planning, breastfeeding and infant nutrition.

SEC. 16. Capacity Building of Barangay Health Workers (BHWs). – The DOH shall be responsible for disseminating information and providing training programs to the LGUs. The LGUs, with the technical assistance of the DOH, shall be responsible for the training of BHWs and other barangay volunteers on the promotion of reproductive health. The DOH shall provide the LGUs with medical supplies and equipment needed by BHWs to carry out their functions effectively: Provided, further, That the national government shall provide additional and necessary funding and other necessary assistance for the effective implementation of this provision including the possible provision of additional honoraria for BHWs.

SEC. 17. Pro Bono Services for Indigent Women. – Private and nongovernment reproductive healthcare service providers including, but not limited to, gynecologists and obstetricians, are encouraged to provide at least forty-eight (48) hours annually of reproductive health services, ranging from providing information and education to rendering medical services, free of charge to indigent and low-income patients as identified through the NHTS-PR and other government measures of identifying marginalization, especially to pregnant adolescents. The forty-eight (48) hours annual pro bono services shall be included as a prerequisite in the accreditation under the PhilHealth.

SEC. 18. Sexual and Reproductive Health Programs for Persons with Disabilities (PWDs). – The cities and municipalities shall endeavor that barriers to reproductive health services for PWDs are obliterated by the following:

(a) Providing physical access, and resolving transportation and proximity issues to clinics, hospitals and places where public health education is provided, contraceptives are sold or distributed or other places where reproductive health services are provided;

(b) Adapting examination tables and other laboratory procedures to the needs and conditions of PWDs;

(c) Increasing access to information and communication materials on sexual and reproductive health in braille, large print, simple language, sign language and pictures;

(d) Providing continuing education and inclusion of rights of PWDs among health care providers; and

(e) Undertaking activities to raise awareness and address misconceptions among the general public on the stigma and their lack of knowledge on the sexual and reproductive health needs and rights of PWDs.

SEC. 19. Duties and Responsibilities. – (a) Pursuant to the herein declared policy, the DOH shall serve as the lead agency for the implementation of this Act and shall integrate in their regular operations the following functions:

(1) Fully and efficiently implement the reproductive health care program;

(2) Ensure people’s access to medically safe, non-abortifacient, legal, quality and affordable reproductive health goods and services; and

(3) Perform such other functions necessary to attain the purposes of this Act.

(b) The DOH, in coordination with the PHIC, as may be applicable, shall:

(1) Strengthen the capacities of health regulatory agencies to ensure safe, high quality, accessible and affordable reproductive health services and commodities with the concurrent strengthening and enforcement of regulatory mandates and mechanisms;

(2) Facilitate the involvement and participation of NGOs and the private sector in reproductive health care service delivery and in the production, distribution and delivery of quality reproductive health and family planning supplies and commodities to make them accessible and affordable to ordinary citizens;

(3) Engage the services, skills and proficiencies of experts in natural family planning who shall provide the necessary training for all BHWs;

(4) Supervise and provide assistance to LGUs in the delivery of reproductive health care services and in the purchase of family planning goods and supplies; and

(5) Furnish LGUs, through their respective local health offices, appropriate information and resources to keep the latter updated on current studies and researches relating to family planning, responsible parenthood, breastfeeding and infant nutrition.

(c) The FDA shall issue strict guidelines with respect to the use of contraceptives, taking into consideration the side effects or other harmful effects of their use.

(d) Corporate citizens shall exercise prudence in advertising its products or services through all forms of media, especially on matters relating to sexuality, further taking into consideration its influence on children and the youth.

SEC. 20. Public Awareness. – The DOH and the LGUs shall initiate and sustain a heightened nationwide multimedia-campaign to raise the level of public awareness on the protection and promotion of reproductive health and rights including, but not limited to, maternal health and nutrition, family planning and responsible parenthood information and services, adolescent and youth reproductive health, guidance and counseling and other elements of reproductive health care under Section 4(q).

Education and information materials to be developed and disseminated for this purpose shall be reviewed regularly to ensure their effectiveness and relevance.

SEC. 21. Reporting Requirements. – Before the end of April each year, the DOH shall submit to the President of the Philippines and Congress an annual consolidated report, which shall provide a definitive and comprehensive assessment of the implementation of its programs and those of other government agencies and instrumentalities and recommend priorities for executive and legislative actions. The report shall be printed and distributed to all national agencies, the LGUs, NGOs and private sector organizations involved in said programs.

The annual report shall evaluate the content, implementation, and impact of all policies related to reproductive health and family planning to ensure that such policies promote, protect and fulfill women’s reproductive health and rights.

SEC. 22. Congressional Oversight Committee on Reproductive Health Act. – There is hereby created a Congressional Oversight Committee (COC) composed of five (5) members each from the Senate and the House of Representatives. The members from the Senate and the House of Representatives shall be appointed by the Senate President and the Speaker, respectively, with at least one (1) member representing the Minority.

The COC shall be headed by the respective Chairs of the Committee on Health and Demography of the Senate and the Committee on Population and Family Relations of the House of Representatives. The Secretariat of the COC shall come from the existing Secretariat personnel of the Senate and the House of Representatives committees concerned.

The COC shall monitor and ensure the effective implementation of this Act, recommend the necessary remedial legislation or administrative measures, and shall conduct a review of this Act every five (5) years from its effectivity. The COC shall perform such other duties and functions as may be necessary to attain the objectives of this Act.

SEC. 23. Prohibited Acts. – The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

(1) Knowingly withhold information or restrict the dissemination thereof, and/or intentionally provide incorrect information regarding programs and services on reproductive health including the right to informed choice and access to a full range of legal, medically-safe, non-abortifacient and effective family planning methods;

(2) Refuse to perform legal and medically-safe reproductive health procedures on any person of legal age on the ground of lack of consent or authorization of the following persons in the following instances:

(i) Spousal consent in case of married persons: Provided, That in case of disagreement, the decision of the one undergoing the procedure shall prevail; and

(ii) Parental consent or that of the person exercising parental authority in the case of abused minors, where the parent or the person exercising parental authority is the respondent, accused or convicted perpetrator as certified by the proper prosecutorial office of the court. In the case of minors, the written consent of parents or legal guardian or, in their absence, persons exercising parental authority or next-of-kin shall be required only in elective surgical procedures and in no case shall consent be required in emergency or serious cases as defined in Republic Act No. 8344; and

(3) Refuse to extend quality health care services and information on account of the person’s marital status, gender, age, religious convictions, personal circumstances, or nature of work: Provided, That the conscientious objection of a health care service provider based on his/her ethical or religious beliefs shall be respected; however, the conscientious objector shall immediately refer the person seeking such care and services to another health care service provider within the same facility or one which is conveniently accessible: Provided, further, That the person is not in an emergency condition or serious case as defined in Republic Act No. 8344, which penalizes the refusal of hospitals and medical clinics to administer appropriate initial medical treatment and support in emergency and serious cases;

(b) Any public officer, elected or appointed, specifically charged with the duty to implement the provisions hereof, who, personally or through a subordinate, prohibits or restricts the delivery of legal and medically-safe reproductive health care services, including family planning; or forces, coerces or induces any person to use such services; or refuses to allocate, approve or release any budget for reproductive health care services, or to support reproductive health programs; or shall do any act that hinders the full implementation of a reproductive health program as mandated by this Act;

(c) Any employer who shall suggest, require, unduly influence or cause any applicant for employment or an employee to submit himself/herself to sterilization, use any modern methods of family planning, or not use such methods as a condition for employment, continued employment, promotion or the provision of employment benefits. Further, pregnancy or the number of children shall not be a ground for non-hiring or termination from employment;

(d) Any person who shall falsify a Certificate of Compliance as required in Section 15 of this Act; and

(e) Any pharmaceutical company, whether domestic or multinational, or its agents or distributors, which directly or indirectly colludes with government officials, whether appointed or elected, in the distribution, procurement and/or sale by the national government and LGUs of modern family planning supplies, products and devices.

SEC. 24. Penalties. – Any violation of this Act or commission of the foregoing prohibited acts shall be penalized by imprisonment ranging from one (1) month to six (6) months or a fine of Ten thousand pesos (P10,000.00) to One hundred thousand pesos (P100,000.00), or both such fine and imprisonment at the discretion of the competent court: Provided, That, if the offender is a public officer, elected or appointed, he/she shall also suffer the penalty of suspension not exceeding one (1) year or removal and forfeiture of retirement benefits depending on the gravity of the offense after due notice and hearing by the appropriate body or agency.

If the offender is a juridical person, the penalty shall be imposed upon the president or any responsible officer. An offender who is an alien shall, after service of sentence, be deported immediately without further proceedings by the Bureau of Immigration. If the offender is a pharmaceutical company, its agent and/or distributor, their license or permit to operate or conduct business in the Philippines shall be perpetually revoked, and a fine triple the amount involved in the violation shall be imposed.

CASE DIGEST: Belgica v. Executive Secretary (G.R. Nos. 208566, 208493 and 209251, 2013)

Click here for the full text of the Decision.

Click here for a more comprehensive digest (with the facts).

I. SPECIAL PROVISIONS OF THE 2013 PDAF ARTICLE

2. Project Identification. Identification of projects and/or designation of beneficiaries shall conform to the priority list, standard or design prepared by each implementing agency: PROVIDED, That preference shall be given to projects located in the 4th to 6th class municipalities or indigents identified under the MHTS-PR by the DSWD. For this purpose, the implementing agency shall submit to Congress said priority list, standard or design within ninety (90) days from effectivity of this Act.

All programs/projects, except for assistance to indigent patients and scholarships, identified by a member of the House of Representatives outside of his/her legislative district shall have the written concurrence of the member of the House of Representatives of the recipient or beneficiary legislative district, endorsed by the Speaker of the House of Representatives.

3. Legislator’s Allocation. The Total amount of projects to be identified by legislators shall be as follows:

a. For Congressional District or Party-List Representative: Thirty Million Pesos (P30,000,000) for soft programs and projects listed under Item A and Forty Million Pesos (P40,000,000) for infrastructure projects listed under Item B, the purposes of which are in the project menu of Special Provision No. 1; and

b. For Senators: One Hundred Million Pesos (P100,000,000) for soft programs and projects listed under Item A and One Hundred Million Pesos (P100,000,000) for infrastructure projects listed under Item B, the purposes of which are in the project menu of Special Provision No. 1.

Subject to the approved fiscal program for the year and applicable Special Provisions on the use and release of fund, only fifty percent (50%) of the foregoing amounts may be released in the first semester and the remaining fifty percent (50%) may be released in the second semester.

4. Realignment of Funds. Realignment under this Fund may only be allowed once. The Secretaries of Agriculture, Education, Energy, Interior and Local Government, Labor and Employment, Public Works and Highways, Social Welfare and Development and Trade and Industry are also authorized to approve realignment from one project/scope to another within the allotment received from this Fund, subject to the following: (i) for infrastructure projects, realignment is within the same implementing unit and same project category as the original project; (ii) allotment released has not yet been obligated for the original project/scope of work; and (iii) request is with the concurrence of the legislator concerned. The DBM must be informed in writing of any realignment within five (5) calendar days from approval thereof: PROVIDED, That any realignment under this Fund shall be limited within the same classification of soft or hard programs/projects listed under Special Provision 1 hereof: PROVIDED, FURTHER, That in case of realignments, modifications and revisions of projects to be implemented by LGUs, the LGU concerned shall certify that the cash has not yet been disbursed and the funds have been deposited back to the BTr.

Any realignment, modification and revision of the project identification shall be submitted to the House Committee on Appropriations and the Senate Committee on Finance, for favorable endorsement to the DBM or the implementing agency, as the case may be.

5. Release of Funds. All request for release of funds shall be supported by the documents prescribed under Special Provision No. 1 and favorably endorsed by the House Committee on Appropriations and the Senate Committee on Finance, as the case may be. Funds shall be released to the implementing agencies subject to the conditions under Special Provision No. 1 and the limits prescribed under Special Provision No. 3.

II. SUBSTANTIVE ISSUES, HELD AND RATIO

A. Congressional Pork Barrel

WON the 2013 PDAF Article and all other Congressional Pork Barrel Laws similar to it are unconstitutional considering that they violate the principles of/constitutional provisions on…

1.) …separation of powers

YES. At its core, legislators have been consistently accorded post-enactment authority (a) to identify the projects they desire to be funded through various Congressional Pork Barrel allocations; (b) and in the areas of fund release and realignment. Thus, legislators have been, in one form or another, authorized to participate in “the various operational aspects of budgeting,” violating the separation of powers principle. That the said authority is treated as merely recommendatory in nature does not alter its unconstitutional tenor since the prohibition covers any role in the implementation or enforcement of the law. Informal practices, through which legislators have effectively intruded into the proper phases of budget execution, must be deemed as acts of grave abuse of discretion amounting to lack or excess of jurisdiction and, hence, accorded the same unconstitutional treatment.

2.) …non-delegability of legislative power

YES. The 2013 PDAF Article violates the principle of non-delegability since legislators are effectively allowed to individually exercise the power of appropriation, which, as settled in Philconsa, is lodged in Congress.

3.) …checks and balances

YES. Under the 2013 PDAF Article, the amount of P24.79 Billion only appears as a collective allocation limit. Legislators make intermediate appropriations of the PDAF only after the GAA is passed and hence, outside of the law. Thus, actual items of PDAF appropriation would not have been written into the General Appropriations Bill and are thus put into effect without veto consideration. This kind of lump-sum/post-enactment legislative identification budgeting system fosters the creation of a “budget within a budget” which subverts the prescribed procedure of presentment and consequently impairs the President’s power of item veto. As petitioners aptly point out, the President is forced to decide between (a) accepting the entire P24. 79 Billion PDAF allocation without knowing the specific projects of the legislators, which may or may not be consistent with his national agenda and (b) rejecting the whole PDAF to the detriment of all other legislators with legitimate projects.

Even without its post-enactment legislative identification feature, the 2013 PDAF Article would remain constitutionally flawed since the lump-sum amount of P24.79 Billion would be treated as a mere funding source allotted for multiple purposes of spending (i.e. scholarships, medical missions, assistance to indigents, preservation of historical materials, construction of roads, flood control, etc). This setup connotes that the appropriation law leaves the actual amounts and purposes of the appropriation for further determination and, therefore, does not readily indicate a discernible item which may be subject to the President’s power of item veto.

4.) …accountability

YES. To a certain extent, the conduct of oversight would be tainted as said legislators, who are vested with post-enactment authority, would, in effect, be checking on activities in which they themselves participate. Also, this very same concept of post-enactment authorization runs afoul of Section 14, Article VI of the 1987 Constitution which provides that: “…[A Senator or Member of the House of Representatives] shall not intervene in any matter before any office of the Government for his pecuniary benefit or where he may be called upon to act on account of his office.” Allowing legislators to intervene in the various phases of project implementation renders them susceptible to taking undue advantage of their own office.

However, the same post-enactment authority and/or the individual legislator’s control of his PDAF per se would allow him to perpetrate himself in office. This is a matter which must be analyzed based on particular facts and on a case-to-case basis.

Also, while it is possible that the close operational proximity between legislators and the Executive department, through the former’s post-enactment participation, may affect the process of  impeachment, this matter largely borders on the domain of politics and does not strictly concern the Pork Barrel System’s intrinsic constitutionality. As such, it is an improper subject of judicial assessment.

5.) …political dynasties

NO. Section 26, Article II of the 1987 Constitution is considered as not self-executing due to the qualifying phrase “as may be defined by law.” 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 above-stated argument on this score is largely speculative since it has not been properly demonstrated how the Pork Barrel System would be able to propagate political dynasties.

6.) …local autonomy

YES.  The Court, however, finds an inherent defect in the system which actually belies the avowed intention of “making equal the unequal.” The gauge of PDAF and CDF allocation/division is based solely on the fact of office, without taking into account the specific interests and peculiarities of the district the legislator represents. As a result, a district representative of a highly-urbanized metropolis gets the same amount of funding as a district representative of a far-flung rural province which would be relatively “underdeveloped” compared to the former. To add, what rouses graver scrutiny is that even Senators and Party-List Representatives – and in some years, even the Vice-President – who do not represent any locality, receive funding from the Congressional Pork Barrel as well.

The Court also observes that this concept of legislator control underlying the CDF and PDAF conflicts with the functions of the various Local Development Councils (LDCs), instrumentalities whose functions are essentially geared towards managing local affairs. The programs, policies and resolutions of LDCs 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.

B. Substantive Issues on the “Presidential Pork Barrel”

WON the following phrases are unconstitutional insofar as they constitute undue delegations of legislative power:

(a) “and for such other purposes as may be hereafter directed by the President” under Section 8 of PD 910 relating to the Malampaya Funds, and

YES. Regarding the Malampaya Fund: The phrase “and for such other purposes as may be hereafter directed by the President” under Section 8 of PD 910 constitutes an undue delegation of legislative power 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.

(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

Regarding the Presidential Social FundSection 12 of PD 1869, as amended by PD 1993, indicates that the Presidential Social Fund may be used “to finance the priority infrastructure development projects”. This gives him carte blanche authority to use the same fund for any infrastructure project he may so determine as a “priority”. The law does not supply a definition of “priority infrastructure development projects” and hence, leaves the President without any guideline to construe the same. To note, the delimitation of a project as one of “infrastructure” is too broad of a classification since the said term could pertain to any kind of facility. Thus, the phrase “to finance the priority infrastructure development projects” must be stricken down as unconstitutional since – similar to Section 8 of PD 910 – it lies independently unfettered by any sufficient standard of the delegating law.