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.…

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 taxpayer 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:

“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 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 ground 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 Brande is in Ashwander v. TVA, 297 U.S.
288 (1936)^[4] as basis for the petition’s
dismissal.

In the case of Evelio B. Javier v. The Commission on
Elections and Arturo F. Pacificador, G.R. Nos. 6837 -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
o 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 lay.  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 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 re-convened, 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, Italics
supplied.]'”

Moreover, in Tan v. Macapagal, 43 SCRA 677 and Sanidad v.
Comelec, 73 SCRA 333, We said that as regards taxpayers’ suit, this Court
enjoys that open discretion to entertain the same or not.

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 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 over-extends 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:  x x x” 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, “x x x Pres. Decree No. 1177 opens the floodgates for the
enactment of unfunded 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
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.

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:

“x x x 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 Constitution] and which power, this Court has exercised in many
instances.^[*]

Public respondents
are being enjoined from acting under a provision of 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.

SO
ORDERED.

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

^[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 cases 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 de last resort, and as a necessity in the
determination of real, earnest and vital controversy between individuls.  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 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.’ Crowell 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; McDaniel 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.