MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA and MARIA

ISABEL
ONGPIN, petitioners,
vs. COMMISSION
ON
ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN
PEDROSA, in their capacities as founding members of the
Peoples Initiative for Reforms, Modernization and Action
(PIRMA), respondents, SENATOR
RAUL
S.
ROCO,
DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK),
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD INTEGRITY
AND NATIONALISM, INC. (MABINI), INTEGRATED BAR OF THE
PHILIPPINES (IBP) and LABAN NG DEMOKRATIKONG
PILIPINO (LABAN), petitioners-intervenors.
DECISION
DAVIDE, JR., J.:
The heart of this controversy brought to us by way of a petition for
prohibition under Rule 65 of the Rules of Court is the right of the people to
directly propose amendments to the Constitution through the system
of initiative under
Section
2
of
Article
XVII
of
the
1987
Constitution. Undoubtedly, this demands special attention, as this system of
initiative was unknown to the people of this country, except perhaps to a few
scholars, before the drafting of the 1987 Constitution. The 1986
Constitutional Commission itself, through the original proponent [1] and the
main sponsor[2] of the proposed Article on Amendments or Revision of the
Constitution, characterized this system as innovative. [3] Indeed it is, for both
under the 1935 and 1973 Constitutions, only two methods of proposing
amendments to, or revision of, the Constitution were recognized, viz., (1) by
Congress upon a vote of three-fourths of all its members and (2) by a
constitutional convention.[4] For this and the other reasons hereafter
discussed, we resolved to give due course to this petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed
with public respondent Commission on Elections (hereafter, COMELEC) a
Petition to Amend the Constitution, to Lift Term Limits of Elective Officials, by
Peoples Initiative (hereafter, Delfin Petition)[5] wherein Delfin asked the
COMELEC for an order

3. Instructing Municipal Election Registrars in all Regions of the

Philippines, to assist Petitioners and volunteers, in
establishing signing stations at the time and on the dates
designated for the purpose.
Delfin alleged in his petition that he is a founding member of the
Movement for Peoples Initiative,[6] a group of citizens desirous to avail of the
system intended to institutionalize people power; that he and the members
of the Movement and other volunteers intend to exercise the power to
directly propose amendments to the Constitution granted under Section 2,
Article XVII of the Constitution; that the exercise of that power shall be
conducted in proceedings under the control and supervision of the
COMELEC; that, as required in COMELEC Resolution No. 2300, signature
stations shall be established all over the country, with the assistance of
municipal election registrars, who shall verify the signatures affixed by
individual signatories; that before the Movement and other volunteers can
gather signatures, it is necessary that the time and dates to be designated
for the purpose be first fixed in an order to be issued by the COMELEC; and
that to adequately inform the people of the electoral process involved, it is
likewise necessary that the said order, as well as the Petition on which the
signatures shall be affixed, be published in newspapers of general and local
circulation, under the control and supervision of the COMELEC.
The Delfin Petition further alleged that the provisions sought to be
amended are Sections 4 and 7 of Article VI, [7] Section 4 of Article VII, [8] and
Section 8 of Article X[9] of the Constitution.Attached to the petition is a copy
of a Petition for Initiative on the 1987 Constitution[10] embodying the
proposed amendments which consist in the deletion from the aforecited
sections of the provisions concerning term limits, and with the following
proposition:
DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE
GOVERNMENT OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS
4 AND 7 OF ARTICLE VI, SECTION 4 OF ARTICLE VII, AND SECTION 8
OF ARTICLE X OF THE 1987 PHILIPPINE CONSTITUTION?

1. Fixing the time and dates for signature gathering all over the
country;

According to Delfin, the said Petition for Initiative will first be submitted
to the people, and after it is signed by at least twelve per cent of the total
number of registered voters in the country it will be formally filed with the
COMELEC.

2. Causing the necessary publications of said Order and the

attached Petition for Initiative on the 1987 Constitution, in
newspapers of general and local circulation;

Upon the filing of the Delfin Petition, which was forthwith given the
number UND 96-037 (INITIATIVE), the COMELEC, through its Chairman,
issued an Order[11] (a) directing Delfin to cause the publication of the petition,

together with the attached Petition for Initiative on the 1987 Constitution
(including the proposal, proposed constitutional amendment, and the
signature form), and the notice of hearing in three (3) daily newspapers of
general circulation at his own expense not later than 9 December 1996;
and (b) setting the case for hearing on 12 December 1996 at 10:00 a.m.

(3) Republic Act No. 6735 provides for the effectivity of the law after
publication in print media. This indicates that the Act covers only laws and
not constitutional amendments because the latter take effect only upon
ratification and not after publication.

At the hearing of the Delfin Petition on 12 December 1996, the

following appeared: Delfin and Atty. Pete Q. Quadra; representatives of the
Peoples Initiative for Reforms, Modernization and Action (PIRMA);
intervenor-oppositor Senator Raul S. Roco, together with his two other
lawyers; and representatives of, or counsel for, the Integrated Bar of the
Philippines (IBP), Demokrasya-Ipagtanggol ang Konstitusyon (DIK), Public
Interest Law Center, and Laban ng Demokratikong Pilipino (LABAN).
[12]
Senator Roco, on that same day, filed a Motion to Dismiss the Delfin
Petition on the ground that it is not the initiatory petition properly cognizable
by the COMELEC.

(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern

the conduct of initiative on the Constitution and initiative and referendum on
national and local laws, is ultra vires insofar as initiative on amendments to
the Constitution is concerned, since the COMELEC has no power to provide
rules and regulations for the exercise of the right of initiative to amend the
Constitution. Only Congress is authorized by the Constitution to pass the
implementing law.

After hearing their arguments, the COMELEC directed Delfin and the
oppositors to file their memoranda and/or oppositions/memoranda within five
days.[13]
On 18 December 1996, the petitioners herein -- Senator Miriam
Defensor Santiago, Alexander Padilla, and Maria Isabel Ongpin -- filed this
special civil action for prohibition raising the following arguments:
(1) The constitutional provision on peoples initiative to amend the
Constitution can only be implemented by law to be passed by Congress. No
such law has been passed; in fact, Senate Bill No. 1290 entitled An Act
Prescribing and Regulating Constitutional Amendments by Peoples
Initiative, which petitioner Senator Santiago filed on 24 November 1995, is
still pending before the Senate Committee on Constitutional Amendments.
(2) It is true that R.A. No. 6735 provides for three systems of initiative,
namely, initiative on the Constitution, on statutes, and on local
legislation. However, it failed to provide any subtitle on initiative on the
Constitution, unlike in the other modes of initiative, which are specifically
provided for in Subtitle II and Subtitle III. This deliberate omission indicates
that the matter of peoples initiative to amend the Constitution was left to
some future law. Former Senator Arturo Tolentino stressed this deficiency in
the law in his privilege speech delivered before the Senate in 1994: There is
not a single word in that law which can be considered as implementing [the
provision on constitutional initiative]. Such implementing provisions have
been obviously left to a separate law.

(5)The peoples initiative is limited to amendments to the Constitution, not

to revision thereof. Extending or lifting of term limits constitutes
a revision and is, therefore, outside the power of the peoples initiative.
(6) Finally, Congress has not yet appropriated funds for peoples initiative;
neither the COMELEC nor any other government department, agency, or
office has realigned funds for the purpose.
To justify their recourse to us via the special civil action for prohibition,
the petitioners allege that in the event the COMELEC grants the Delfin
Petition, the peoples initiative spearheaded by PIRMA would entail expenses
to the national treasury for general re-registration of voters amounting to at
least P180 million, not to mention the millions of additional pesos in
expenses which would be incurred in the conduct of the initiative
itself. Hence, the transcendental importance to the public and the nation of
the issues raised demands that this petition for prohibition be settled
promptly and definitely, brushing aside technicalities of procedure and calling
for the admission of a taxpayers and legislators suit. [14] Besides, there is no
other plain, speedy, and adequate remedy in the ordinary course of law.
On 19 December 1996, this Court (a) required the respondents to
comment on the petition within a non-extendible period of ten days from
notice; and (b) issued a temporary restraining order, effective immediately
and continuing until further orders, enjoining public respondent COMELEC
from proceeding with the Delfin Petition, and private respondents Alberto
and Carmen Pedrosa from conducting a signature drive for peoples initiative
to amend the Constitution.
On 2 January 1997, private respondents, through Atty Quadra, filed
their Comment[15] on the petition. They argue therein that:

1. IT IS NOT TRUE THAT IT WOULD ENTAIL EXPENSES TO THE

NATIONAL TREASURY FOR GENERAL REGISTRATION OF VOTERS
AMOUNTING TO AT LEAST PESOS: ONE HUNDRED EIGHTY MILLION
(P180,000,000.00) IF THE COMELEC GRANTS THE PETITION FILED BY
RESPONDENT DELFIN BEFORE THE COMELEC.
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL
GOVERNMENT IF THE COMELEC GRANTS THE PETITION OF
RESPONDENT DELFIN. ALL EXPENSES IN THE SIGNATURE
GATHERING ARE ALL FOR THE ACCOUNT OF RESPONDENT DELFIN
AND HIS VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES AND
EXPENDITURES SUBMITTED TO THE COMELEC. THE ESTIMATED
COST OF THE DAILY PER DIEM OF THE SUPERVISING SCHOOL
TEACHERS IN THE SIGNATURE GATHERING TO BE DEPOSITED and
TO BE PAID BY DELFIN AND HIS VOLUNTEERS IS P2,571, 200.00;
3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE
SIGNATURE GATHERING WHICH BY LAW COMELEC IS DUTY BOUND
TO SUPERVISE CLOSELY PURSUANT TO ITS INITIATORY
JURISDICTION UPHELD BY THE HONORABLE COURT IN ITS RECENT
SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY
METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416;
4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE
ENABLING LAW IMPLEMENTING THE POWER OF PEOPLE INITIATIVE
TO PROPOSE AMENDMENTS TO THE CONSTITUTION.SENATOR
DEFENSOR-SANTIAGOS SENATE BILL NO. 1290 IS A DUPLICATION OF
WHAT ARE ALREADY PROVIDED FOR IN REP. ACT NO. 6735;
5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16,
1991 PURSUANT TO REP. ACT 6735 WAS UPHELD BY THE
HONORABLE COURT IN THE RECENT SEPTEMBER 26, 1996 DECISION
IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS.
COMELEC, ET AL. G.R. NO. 125416 WHERE THE HONORABLE COURT
SAID: THE COMMISSION ON ELECTIONS CAN DO NO LESS BY
SEASONABLY AND JUDICIOUSLY PROMULGATING GUIDELINES AND
RULES FOR BOTH NATIONAL AND LOCAL USE, IN IMPLEMENTING OF
THESE LAWS.
6. EVEN SENATOR DEFENSOR-SANTIAGOS SENATE BILL NO. 1290
CONTAINS A PROVISION DELEGATING TO THE COMELEC THE POWER
TO PROMULGATE SUCH RULES AND REGULATIONS AS MAY BE

NECESSARY TO CARRY OUT THE PURPOSES OF THIS ACT. (SEC. 12,

S.B. NO. 1290, ENCLOSED AS ANNEX E, PETITION);
7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF
ELECTIVE OFFICIALS PROVIDED UNDER THE 1987 CONSTITUTION IS
NOT A REVISION OF THE CONSTITUTION. IT IS ONLY AN
AMENDMENT. AMENDMENT ENVISAGES AN ALTERATION OF ONE OR
A FEW SPECIFIC PROVISIONS OF THE CONSTITUTION. REVISION
CONTEMPLATES A RE-EXAMINATION OF THE ENTIRE DOCUMENT TO
DETERMINE HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED.
(PP. 412-413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN
G. BERNAS, S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own
behalf a Comment[16] which starts off with an assertion that the instant
petition is a knee-jerk reaction to a draft Petition for Initiative on the 1987
Constitution ... which is not formally filed yet. What he filed on 6 December
1996 was an Initiatory Pleading or Initiatory Petition, which was legally
necessary to start the signature campaign to amend the Constitution or to
put the movement to gather signatures under COMELEC power and
function. On the substantive allegations of the petitioners, Delfin maintains
as follows:
(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735,
which governs the conduct of initiative to amend the Constitution. The
absence therein of a subtitle for such initiative is not fatal, since subtitles are
not requirements for the validity or sufficiency of laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in
an initiative to amend the Constitution approved by the majority of the votes
cast in the plebiscite shall become effective as of the day of the plebiscite.
(3) The claim that COMELEC Resolution No. 2300 is ultra vires is
contradicted by (a) Section 2, Article IX-C of the Constitution, which grants
the COMELEC the power to enforce and administer all laws and regulations
relative to the conduct of an election, plebiscite, initiative, referendum, and
recall; and (b) Section 20 of R.A. 6735, which empowers the COMELEC to
promulgate such rules and regulations as may be necessary to carry out the
purposes of the Act.
(4) The proposed initiative does not involve a revision of, but
mere amendment to, the Constitution because it seeks to alter only a few
specific provisions of the Constitution, or more specifically, only those which

lay term limits. It does not seek to reexamine or overhaul the entire
document.

Intervention filed on 6 January 1997 by Senator Raul Roco and allowed him
to file his Petition in Intervention not later than 20 January 1997; and (d) set
the case for hearing on 23 January 1997 at 9:30 a.m.

As to the public expenditures for registration of voters, Delfin considers

petitioners estimate of P180 million as unreliable, for only the COMELEC
can give the exact figure. Besides, if there will be a plebiscite it will be
simultaneous with the 1997 Barangay Elections. In any event, fund
requirements for initiative will be a priority government expense because it
will be for the exercise of the sovereign power of the people.

On
17
January
1997,
the Demokrasya-Ipagtanggol
ang
Konstitusyon (DIK) and the Movement of Attorneys for Brotherhood Integrity
and Nationalism, Inc. (MABINI), filed a Motion for Intervention. Attached to
the motion was their Petition in Intervention, which was later replaced by an
Amended Petition in Intervention wherein they contend that:

In the Comment[17] for the public respondent COMELEC, filed also on 2

January 1997, the Office of the Solicitor General contends that:

(1) The Delfin proposal does not involve a mere amendment to, but
a revision of, the Constitution because, in the words of Fr. Joaquin Bernas,
S.J.,[18] it would involve a change from a political philosophy that rejects
unlimited tenure to one that accepts unlimited tenure; and although the
change might appear to be an isolated one, it can affect other provisions,
such as, on synchronization of elections and on the State policy of
guaranteeing equal access to opportunities for public service and prohibiting
political dynasties.[19] A revision cannot be done by initiative which, by
express provision of Section 2 of Article XVII of the Constitution, is limited
toamendments.

(1) R.A. No. 6735 deals with, inter alia, peoples initiative to amend the
Constitution. Its Section 2 on Statement of Policy explicitly affirms,
recognizes, and guarantees that power; and its Section 3, which enumerates
the three systems of initiative, includes initiative on the Constitution and
defines the same as the power to propose amendments to the Constitution.
Likewise, its Section 5 repeatedly mentions initiative on the Constitution.
(2) A separate subtitle on initiative on the Constitution is not necessary in
R.A. No. 6735 because, being national in scope, that system of initiative is
deemed included in the subtitle on National Initiative and Referendum; and
Senator Tolentino simply overlooked pertinent provisions of the law when he
claimed that nothing therein was provided for initiative on the Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A.
No. 6735 does not deal with initiative on the Constitution.
(4) Extension of term limits of elected officials constitutes a mere
amendment to the Constitution, not a revision thereof.
(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of
R.A. No. 6735 and under the Omnibus Election Code. The rule-making
power of the COMELEC to implement the provisions of R.A. No. 6735 was in
fact upheld by this Court in Subic Bay Metropolitan Authority vs. COMELEC .
On 14 January 1997, this Court (a) confirmed nunc pro tunc the
temporary restraining order; (b) noted the aforementioned Comments and
the Motion to Lift Temporary Restraining Order filed by private respondents
through Atty. Quadra, as well as the latters Manifestation stating that he is
the counsel for private respondents Alberto and Carmen Pedrosa only and
the Comment he filed was for the Pedrosas; and (c) granted the Motion for

(2) The prohibition against reelection of the President and the limits provided
for all other national and local elective officials are based on the philosophy
of governance, to open up the political arena to as many as there are
Filipinos qualified to handle the demands of leadership, to break the
concentration of political and economic powers in the hands of a few, and to
promote effective proper empowerment for participation in policy and
decision-making for the common good; hence, to remove the term limits is to
negate and nullify the noble vision of the 1987 Constitution.
(3) The Delfin proposal runs counter to the purpose of initiative, particularly
in a conflict-of-interest situation. Initiative is intended as a fallback position
that may be availed of by the people only if they are dissatisfied with the
performance of their elective officials, but not as a premium for good
performance.[20]
(4) R.A. No. 6735 is deficient and inadequate in itself to be called the
enabling law that implements the peoples initiative on amendments to the
Constitution. It fails to state (a) the proper parties who may file the petition,
(b) the appropriate agency before whom the petition is to be filed, (c) the
contents of the petition, (d) the publication of the same, (e) the ways and
means of gathering the signatures of the voters nationwide and 3% per
legislative district, (f) the proper parties who may oppose or question the
veracity of the signatures, (g) the role of the COMELEC in the verification of

the signatures and the sufficiency of the petition, (h) the appeal from any
decision of the COMELEC, (I) the holding of a plebiscite, and (g) the
appropriation of funds for such peoples initiative. Accordingly, there being no
enabling law, the COMELEC has no jurisdiction to hear Delfins petition.
(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by
COMELEC Resolution No. 2300, since the COMELEC is without authority to
legislate the procedure for a peoples initiative under Section 2 of Article XVII
of the Constitution. That function exclusively pertains to Congress. Section
20 of R.A. No. 6735 does not constitute a legal basis for the Resolution, as
the former does not set a sufficient standard for a valid delegation of power.
On 20 January 1997, Senator Raul Roco filed his Petition in
Intervention.[21] He avers that R.A. No. 6735 is the enabling law that
implements the peoples right to initiate constitutional amendments. This law
is a consolidation of Senate Bill No. 17 and House Bill No. 21505; he coauthored the House Bill and even delivered a sponsorship speech
thereon. He likewise submits that the COMELEC was empowered under
Section 20 of that law to promulgate COMELEC Resolution No. 2300.
Nevertheless, he contends that the respondent Commission is without
jurisdiction to take cognizance of the Delfin Petition and to order its
publication because the said petition is not the initiatory pleading
contemplated under the Constitution, Republic Act No. 6735, and COMELEC
Resolution No. 2300. What vests jurisdiction upon the COMELEC in an
initiative on the Constitution is the filing of a petition for initiative which
is signed by the required number of registered voters. He also submits that
the proponents of a constitutional amendment cannot avail of the authority
and resources of the COMELEC to assist them is securing the required
number of signatures, as the COMELECs role in an initiative on the
Constitution is limited to the determination of the sufficiency of the initiative
petition and the call and supervision of a plebiscite, if warranted.

(3) The Petition for Initiative suffers from a fatal defect in that it does not
have the required number of signatures.
(4) The petition seeks, in effect a revision of the Constitution, which can be
proposed only by Congress or a constitutional convention.[22]
On 21 January 1997, we promulgated a Resolution (a) granting the
Motions for Intervention filed by the DIK and MABINI and by the IBP, as well
as the Motion for Leave to Intervene filed by LABAN; (b) admitting the
Amended Petition in Intervention of DIK and MABINI, and the Petitions in
Intervention of Senator Roco and of the IBP; (c) requiring the respondents to
file within a nonextendible period of five days their Consolidated Comments
on the aforesaid Petitions in Intervention; and (d) requiring LABAN to file its
Petition in Intervention within a nonextendible period of three days from
notice, and the respondents to comment thereon within a nonextendible
period of five days from receipt of the said Petition in Intervention.
At the hearing of the case on 23 January 1997, the parties argued on
the following pivotal issues, which the Court formulated in light of the
allegations and arguments raised in the pleadings so far filed:
1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative
and Referendum and Appropriating Funds Therefor, was intended to include
or cover initiative on amendments to the Constitution; and if so, whether the
Act, as worded, adequately covers such initiative.
2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and
Regulations Governing the Conduct of Initiative on the Constitution, and
Initiative and Referendum on National and Local Laws) regarding the
conduct of initiative on amendments to the Constitution is valid, considering
the absence in the law of specific provisions on the conduct of such initiative.

On 20 January 1997, LABAN filed a Motion for Leave to Intervene.

The following day, the IBP filed a Motion for Intervention to which it
attached a Petition in Intervention raising the following arguments:
(1) Congress has failed to enact an enabling law mandated under Section 2,
Article XVII of the 1987 Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute for the required
implementing law on the initiative to amend the Constitution.

3. Whether the lifting of term limits of elective national and local officials, as
proposed in the draft Petition for Initiative on the 1987 Constitution, would
constitute a revision of, or an amendment to, the Constitution.
4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a
petition solely intended to obtain an order (a) fixing the time and dates for
signature gathering; (b) instructing municipal election officers to assist
Delfin's movement and volunteers in establishing signature stations; and (c)
directing or causing the publication of, inter alia, the unsigned proposed
Petition for Initiative on the 1987 Constitution.

5. Whether it is proper for the Supreme Court to take cognizance of the

petition when there is a pending case before the COMELEC.

take cognizance of this special civil action when there is a pending case
before the COMELEC. The petitioners provide an affirmative answer. Thus:

After hearing them on the issues, we required the parties to submit

simultaneously their respective memoranda within twenty days and
requested intervenor Senator Roco to submit copies of the deliberations on
House Bill No. 21505.

28. The Comelec has no jurisdiction to take cognizance of the petition filed
by private respondent Delfin. This being so, it becomes imperative to stop
the Comelec from proceeding any further, and under the Rules of Court,
Rule 65, Section 2, a petition for prohibition is the proper remedy.

On 27 January 1997, LABAN filed its Petition in Intervention wherein it

adopts the allegations and arguments in the main Petition. It further submits
that the COMELEC should have dismissed the Delfin Petition for failure to
state a sufficient cause of action and that the Commissions failure or refusal
to do so constituted grave abuse of discretion amounting to lack of
jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of
both the Journal and the Record of the House of Representatives relating to
the deliberations of House Bill No. 21505, as well as the transcripts of
stenographic notes on the proceedings of the Bicameral Conference
Committee, Committee on Suffrage and Electoral Reforms, of 6 June 1989
on House Bill No. 21505 and Senate Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their
Consolidated Comments on the Petitions in Intervention of Senator Roco,
DIK and MABINI, and IBP.[23] The parties thereafter filed, in due time, their
separate memoranda.[24]
As we stated in the beginning, we resolved to give due course to this
special civil action.
For a more logical discussion of the formulated issues, we shall first
take up the fifth issue which appears to pose a prejudicial procedural
question.
I

THE INSTANT PETITION IS VIABLE DESPITE THE

PENDENCY IN THE COMELEC OF THE DELFIN
PETITION.
Except for the petitioners and intervenor Roco, the parties paid no
serious attention to the fifth issue, i.e., whether it is proper for this Court to

29. The writ of prohibition is an extraordinary judicial writ issuing out of a

court of superior jurisdiction and directed to an inferior court, for the purpose
of preventing the inferior tribunal from usurping a jurisdiction with which it is
not legally vested. (People v. Vera, supra., p. 84). In this case the writ is an
urgent necessity, in view of the highly divisive and adverse environmental
consequences on the body politic of the questioned Comelec order. The
consequent climate of legal confusion and political instability begs for judicial
statesmanship.
30. In the final analysis, when the system of constitutional law is threatened
by the political ambitions of man, only the Supreme Court can save a nation
in peril and uphold the paramount majesty of the Constitution.[25]
It must be recalled that intervenor Roco filed with the COMELEC a
motion to dismiss the Delfin Petition on the ground that the COMELEC has
no jurisdiction or authority to entertain the petition.[26] The COMELEC made
no ruling thereon evidently because after having heard the arguments of
Delfin and the oppositors at the hearing on 12 December 1996, it required
them to submit within five days their memoranda or oppositions/memoranda.
[27]
Earlier, or specifically on 6 December 1996, it practically gave due course
to the Delfin Petition by ordering Delfin to cause the publication of the
petition, together with the attached Petition for Initiative, the signature form,
and the notice of hearing; and by setting the case for hearing. The
COMELECs failure to act on Rocos motion to dismiss and its insistence to
hold on to the petition rendered ripe and viable the instant petition under
Section 2 of Rule 65 of the Rules of Court, which provides:
SEC. 2. Petition for prohibition. -- Where the proceedings of any tribunal,
corporation, board, or person, whether exercising functions judicial or
ministerial, are without or in excess of its or his jurisdiction, or with grave
abuse of discretion, and there is no appeal or any other plain, speedy and
adequate remedy in the ordinary course of law, a person aggrieved thereby
may file a verified petition in the proper court alleging the facts with certainty
and praying that judgment be rendered commanding the defendant to desist
from further proceedings in the action or matter specified therein.

It must also be noted that intervenor Roco claims that the COMELEC
has no jurisdiction over the Delfin Petition because the said petition is not
supported by the required minimum number of signatures of registered
voters. LABAN also asserts that the COMELEC gravely abused its discretion
in refusing to dismiss the Delfin Petition, which does not contain the required
number of signatures. In light of these claims, the instant case may likewise
be treated as a special civil action for certiorari under Section I of Rule 65 of
the Rules of Court.

This provision is not self-executory. In his book,[29] Joaquin Bernas, a

member of the 1986 Constitutional Commission, stated:

In any event, as correctly pointed out by intervenor Roco in his

Memorandum, this Court may brush aside technicalities of procedure in
cases of transcendental importance. As we stated inKilosbayan, Inc. v.
Guingona, Jr.:[28]

Bluntly stated, the right of the people to directly propose amendments to the
Constitution through the system of initiative would remain entombed in the
cold niche of the Constitution until Congress provides for its
implementation. Stated otherwise, while the Constitution has recognized or
granted that right, the people cannot exercise it if Congress, for whatever
reason, does not provide for its implementation.

A partys standing before this Court is a procedural technicality which it may,

in the exercise of its discretion, set aside in view of the importance of issues
raised. In the landmark Emergency Powers Cases, this Court brushed aside
this technicality because the transcendental importance to the public of
these cases demands that they be settled promptly and definitely, brushing
aside, if we must, technicalities of procedure.

Without implementing legislation Section 2 cannot operate. Thus, although

this mode of amending the Constitution is a mode of amendment which
bypasses congressional action, in the last analysis it still is dependent on
congressional action.

This system of initiative was originally included in Section 1 of the draft

Article on Amendment or Revision proposed by the Committee on
Amendments and Transitory Provisions of the 1986 Constitutional
Commission in its Committee Report No. 7 (Proposed Resolution No. 332).
[30]
That section reads as follows:

II

SECTION 1. Any amendment to, or revision of, this Constitution may be

proposed:

R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM

OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, BUT IS, UNFORTUNATELY,
INADEQUATE TO COVER THAT SYSTEM.

(a) by the National Assembly upon a vote of three-fourths of all its members;
or

Section 2 of Article XVII of the Constitution provides:

SEC. 2. Amendments to this Constitution may likewise be directly proposed
by the people through initiative upon a petition of at least twelve per
centum of the total number of registered voters, of which every legislative
district must be represented by at least three per centum of the registered
voters therein. No amendment under this section shall be authorized within
five years following the ratification of this Constitution nor oftener than once
every five years thereafter.
The Congress shall provide for the implementation of the exercise of this
right.

(b) by a constitutional convention; or

(c) directly by the people themselves thru initiative as provided for in Article
____ Section ____ of the Constitution.[31]
After several interpellations, but before the period of amendments, the
Committee submitted a new formulation of the concept of initiative which it
denominated as Section 2; thus:
MR. SUAREZ. Thank you, Madam President. May we respectfully call
attention of the Members of the Commission that pursuant to the mandate
given to us last night, we submitted this afternoon a complete Committee
Report No. 7 which embodies the proposed provision governing the matter
of initiative. This is now covered by Section 2 of the complete committee
report. With the permission of the Members, may I quote Section 2:

The people may, after five years from the date of the last plebiscite held,
directly propose amendments to this Constitution thru initiative upon petition
of at least ten percent of the registered voters.

to constitute itself as a constituent assembly and submit that proposal to the

people for ratification through the process of an initiative.
xxx

This completes the blanks appearing in the original Committee Report No. 7.
[32]

The interpellations on Section 2 showed that the details for carrying out
Section 2 are left to the legislature. Thus:

MS. AQUINO. Do I understand from the sponsor that the intention in the
proposal is to vest constituent power in the people to amend the
Constitution?
MR. SUAREZ. That is absolutely correct, Madam President.

FR. BERNAS. Madam President, just two simple, clarificatory questions.

First, on Section 1 on the matter of initiative upon petition of at least 10
percent, there are no details in the provision on how to carry this out. Do we
understand, therefore, that we are leaving this matter to the legislature?
MR. SUAREZ. That is right, Madam President.
FR. BERNAS. And do we also understand, therefore, that for as long as the
legislature does not pass the necessary implementing law on this, this will
not operate?
MR. SUAREZ. That matter was also taken up during the committee hearing,
especially with respect to the budget appropriations which would have to be
legislated so that the plebiscite could be called. We deemed it best that this
matter be left to the legislature. The Gentleman is right. In any event, as
envisioned, no amendment through the power of initiative can be called until
after five years from the date of the ratification of this Constitution.Therefore,
the first amendment that could be proposed through the exercise of this
initiative power would be after five years. It is reasonably expected that
within that five-year period, the National Assembly can come up with the
appropriate rules governing the exercise of this power.
FR. BERNAS. Since the matter is left to the legislature - the details on how
this is to be carried out - is it possible that, in effect, what will be presented to
the people for ratification is the work of the legislature rather than of the
people? Does this provision exclude that possibility?
MR. SUAREZ. No, it does not exclude that possibility because even the
legislature itself as a body could propose that amendment, maybe
individually or collectively, if it fails to muster the three-fourths vote in order

MS. AQUINO. I fully concur with the underlying precept of the proposal in
terms of institutionalizing popular participation in the drafting of the
Constitution or in the amendment thereof, but I would have a lot of difficulties
in terms of accepting the draft of Section 2, as written. Would the sponsor
agree with me that in the hierarchy of legal mandate, constituent power has
primacy over all other legal mandates?
MR. SUAREZ. The Commissioner is right, Madam President.
MS. AQUINO. And would the sponsor agree with me that in the hierarchy of
legal values, the Constitution is source of all legal mandates and that
therefore we require a great deal of circumspection in the drafting and in the
amendments of the Constitution?
MR. SUAREZ. That proposition is nondebatable.
MS. AQUINO. Such that in order to underscore the primacy of constituent
power we have a separate article in the constitution that would specifically
cover the process and the modes of amending the Constitution?
MR. SUAREZ. That is right, Madam President.
MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are
drafted now, to again concede to the legislature the process or the
requirement of determining the mechanics of amending the Constitution by
people's initiative?
MR. SUAREZ. The matter of implementing this could very well be placed in
the hands of the National Assembly, not unless we can incorporate into this

provision the mechanics that would adequately cover all the conceivable
situations.[33]

MR. DAVIDE. Thank you Madam President. I propose to substitute the entire
Section 2 with the following:

It was made clear during the interpellations that the aforementioned

Section 2 is limited to proposals to AMEND -- not to REVISE -- the
Constitution; thus:

xxx

MR. SUAREZ. ... This proposal was suggested on the theory that this matter
of initiative, which came about because of the extraordinary developments
this year, has to be separated from the traditional modes of amending the
Constitution as embodied in Section 1. The committee members felt that this
system of initiative should not extend to the revision of the entire
Constitution, so we removed it from the operation of Section 1 of the
proposed Article on Amendment or Revision.[34]
xxx
MS. AQUINO. In which case, I am seriously bothered by providing this
process of initiative as a separate section in the Article on
Amendment. Would the sponsor be amenable to accepting an amendment
in terms of realigning Section 2 as another subparagraph (c) of Section 1,
instead of setting it up as another separate section as if it were a selfexecuting provision?
MR. SUAREZ. We would be amenable except that, as we clarified a while
ago, this process of initiative is limited to the matter of amendment and
should not expand into a revision which contemplates a total overhaul of the
Constitution. That was the sense that was conveyed by the Committee.
MS. AQUINO. In other words, the Committee was attempting to distinguish
the coverage of modes (a) and (b) in Section 1 to include the process of
revision; whereas the process of initiation to amend, which is given to the
public, would only apply to amendments?
MR. SUAREZ.That is right. Those were the terms envisioned in the
Committee.[35]

MR. DAVIDE. Madam President, I have modified the proposed amendment

after taking into account the modifications submitted by the sponsor himself
and the honorable Commissioners Guingona, Monsod, Rama, Ople, de los
Reyes and Romulo. The modified amendment in substitution of the
proposed Section 2 will now read as follows: "SECTION 2. -AMENDMENTS TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY
PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION
OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER OF
REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT
MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE
REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS
SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING
THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN
ONCE EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE
IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.
MR. SUAREZ. Madam President, considering that the proposed amendment
is reflective of the sense contained in Section 2 of our completed Committee
Report No. 7, we accept the proposed amendment.[36]
The interpellations which ensued on the proposed modified
amendment to Section 2 clearly showed that it was a legislative act which
must implement the exercise of the right. Thus:
MR. ROMULO. Under Commissioner Davide's amendment, is it possible for
the legislature to set forth certain procedures to carry out the initiative...?
MR. DAVIDE. It can.
xxx

Amendments to the proposed Section 2 were thereafter introduced by

then Commissioner Hilario G. Davide, Jr., which the Committee
accepted. Thus:

MR. ROMULO. But the Commissioners amendment does not prevent the
legislature from asking another body to set the proposition in proper form.

MR. DAVIDE. The Commissioner is correct. In other words, the

implementation of this particular right would be subject to legislation,
provided the legislature cannot determine anymore the percentage of the
requirement.
MR. ROMULO. But the procedures, including the determination of the proper
form for submission to the people, may be subject to legislation.
MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In
other words, none of the procedures to be proposed by the legislative body
must diminish or impair the right conceded here.
MR. ROMULO. In that provision of the Constitution can the procedures
which I have discussed be legislated?
MR. DAVIDE. Yes.[37]
Commissioner Davide also reaffirmed that his modified amendment
strictly confines initiative to AMENDMENTS to -- NOT REVISION of -- the
Constitution. Thus:
MR. DAVIDE. With pleasure, Madam President.
MR. MAAMBONG. My first question: Commissioner Davide's proposed
amendment on line 1 refers to "amendment." Does it not cover the word
"revision" as defined by Commissioner Padilla when he made the distinction
between the words "amendments" and "revision"?
MR. DAVIDE. No, it does not, because "amendments" and "revision" should
be covered by Section 1. So insofar as initiative is concerned, it can only
relate to "amendments" not "revision."[38]
Commissioner Davide further emphasized that the process of
proposing amendments through initiative must be more rigorous and difficult
than the initiative on legislation. Thus:
MR. DAVIDE. A distinction has to be made that under this proposal, what is
involved is an amendment to the Constitution. To amend a Constitution
would ordinarily require a proposal by the National Assembly by a vote of
three-fourths; and to call a constitutional convention would require a higher
number. Moreover, just to submit the issue of calling a constitutional

convention, a majority of the National Assembly is required, the import being

that the process of amendment must be made more rigorous and difficult
than probably initiating an ordinary legislation or putting an end to a law
proposed by the National Assembly by way of a referendum. I cannot agree
to reducing the requirement approved by the Committee on the Legislative
because it would require another voting by the Committee, and the voting as
precisely based on a requirement of 10 percent. Perhaps, I might present
such a proposal, by way of an amendment, when the Commission shall take
up the Article on the Legislative or on the National Assembly on plenary
sessions.[39]
The Davide modified amendments to Section 2 were subjected to
amendments, and the final version, which the Commission approved by a
vote of 31 in favor and 3 against, reads as follows:
MR. DAVIDE. Thank you Madam President. Section 2, as amended, reads
as follows: "AMENDMENT TO THIS CONSTITUTION MAY LIKEWISE BE
DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A
PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER OF
REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT
MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE
REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS
SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING
THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN
ONCE EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE
IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.[40]
The entire proposed Article on Amendments or Revisions was approved on
second reading on 9 July 1986.[41] Thereafter, upon his motion for
reconsideration, Commissioner Gascon was allowed to introduce an
amendment to Section 2 which, nevertheless, was withdrawn. In view
thereof, the Article was again approved on Second and Third Readings on 1
August 1986.[42]
However, the Committee on Style recommended that the approved
Section 2 be amended by changing percent to per centum and thereof to
therein and deleting the phrase by law in the second paragraph so that said
paragraph reads: The Congress[43] shall provide for the implementation of the
exercise of this right.[44] This amendment was approved and is the text of the
present second paragraph of Section 2.

The conclusion then is inevitable that, indeed, the system of initiative

on the Constitution under Section 2 of Article XVII of the Constitution is not
self-executory.
Has Congress provided for the implementation of the exercise of this
right? Those who answer the question in the affirmative, like the private
respondents and intervenor Senator Roco, point to us R.A. No. 6735.
There is, of course, no other better way for Congress to implement the
exercise of the right than through the passage of a statute or legislative
act. This is the essence or rationale of the last minute amendment by the
Constitutional Commission to substitute the last paragraph of Section 2 of
Article XVII then reading:
The Congress[45] shall by law provide for the implementation of the exercise
of this right.
with
The Congress shall provide for the implementation of the exercise of this
right.
This substitute amendment was an investiture on Congress of a power
to provide for the rules implementing the exercise of the right. The rules
means the details on how [the right] is to be carried out.[46]
We agree that R.A. No. 6735 was, as its history reveals, intended to
cover initiative to propose amendments to the Constitution. The Act is a
consolidation of House Bill No. 21505 and Senate Bill No. 17. The former
was prepared by the Committee on Suffrage and Electoral Reforms of the
House of Representatives on the basis of two House Bills referred to it, viz.,
(a) House Bill No. 497,[47] which dealt with the initiative and referendum
mentioned in Sections 1 and 32 of Article VI of the Constitution; and (b)
House Bill No. 988,[48] which dealt with the subject matter of House Bill No.
497, as well as with initiative and referendum under Section 3 of Article X
(Local Government) and initiative provided for in Section 2 of Article XVII of
the Constitution. Senate Bill No. 17[49] solely dealt with initiative and
referendum concerning ordinances or resolutions of local government
units. The Bicameral Conference Committee consolidated Senate Bill No. 17
and House Bill No. 21505 into a draft bill, which was subsequently approved
on 8 June 1989 by the Senate [50] and by the House of Representatives.
[51]
This approved bill is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of
Congress to provide for the implementation of the exercise of the right?

A careful scrutiny of the Act yields a negative answer.

First. Contrary to the assertion of public respondent COMELEC,
Section 2 of the Act does not suggest an initiative on amendments to the
Constitution. The said section reads:
SECTION 2. Statement and Policy. -- The power of the people under a
system of initiative and referendum to directly propose, enact, approve or
reject, in whole or in part, the Constitution, laws, ordinances, or resolutions
passed by any legislative body upon compliance with the requirements of
this Act is hereby affirmed, recognized and guaranteed. (Underscoring
supplied).
The inclusion of the word Constitution therein was a delayed afterthought.
That word is neither germane nor relevant to said section, which exclusively
relates to initiative and referendum on national laws and local laws,
ordinances, and resolutions. That section is silent as to amendments on the
Constitution. As pointed out earlier, initiative on the Constitution is confined
only to proposals to AMEND. The people are not accorded the power
to directly propose, enact, approve, or reject, in whole or in part, the
Constitution through the system of initiative. They can only do so with
respect to laws, ordinances, or resolutions.
The foregoing conclusion is further buttressed by the fact that this
section was lifted from Section 1 of Senate Bill No. 17, which solely referred
to a statement of policy on local initiative and referendum and appropriately
used the phrases propose and enact, approve or reject and in whole or in
part.[52]
Second. It is true that Section 3 (Definition of Terms) of the Act
defines initiative on amendments to the Constitution and mentions it as one
of the three systems of initiative, and that Section 5 (Requirements) restates
the constitutional requirements as to the percentage of the registered voters
who must submit the proposal. But unlike in the case of the other systems
of initiative, the Act does not provide for the contents of a petition for initiative
on the Constitution. Section 5, paragraph (c) requires, among other things,
statement of the proposed law sought to be enacted, approved or rejected,
amended or repealed, as the case may be. It does not include, as among
the contents of the petition, the provisions of the Constitution sought to be
amended, in the case of initiative on the Constitution. Said paragraph (c)
reads in full as follows:
(c) The petition shall state the following:

c.1 contents or text of the proposed law sought to be enacted, approved or

rejected, amended or repealed, as the case may be;

of initiative into national and local is actually based on Section 3 of the Act,
which we quote for emphasis and clearer understanding:

c.2 the proposition;

SEC. 3. Definition of terms --

c.3 the reason or reasons therefor;

xxx

c.4 that it is not one of the exceptions provided therein;

There are three (3) systems of initiative, namely:

c.5 signatures of the petitioners or registered voters; and

a.1 Initiative on the Constitution which refers to a petition proposing

amendments to the Constitution;

c.6 an abstract or summary proposition is not more than one hundred (100)
words which shall be legibly written or printed at the top of every page of the
petition. (Underscoring supplied).

a.2 Initiative on Statutes which refers to a petition proposing to enact

a national legislation; and

The use of the clause proposed laws sought to be enacted, approved or

rejected, amended or repealed only strengthens the conclusion that Section
2, quoted earlier, excludes initiative on amendments to the Constitution.

a.3 Initiative on local legislation which refers to a petition proposing to enact

a regional, provincial, city, municipal, or barangay law, resolution or
ordinance. (Underscoring supplied).

Third. While the Act provides subtitles for National Initiative and
Referendum (Subtitle II) and for Local Initiative and Referendum (Subtitle
III), no subtitle is provided for initiative on the Constitution. This conspicuous
silence as to the latter simply means that the main thrust of the Act is
initiative and referendum on national and local laws. If Congress intended
R.A. No. 6735 to fully provide for the implementation of the initiative on
amendments to the Constitution, it could have provided for a subtitle
therefor, considering that in the order of things, the primacy of interest, or
hierarchy of values, the right of the people to directly propose amendments
to the Constitution is far more important than the initiative on national and
local laws.
We cannot accept the argument that the initiative on amendments to
the Constitution is subsumed under the subtitle on National Initiative and
Referendum because it is national in scope. Our reading of Subtitle II
(National Initiative and Referendum) and Subtitle III (Local Initiative and
Referendum) leaves no room for doubt that the classification is not based on
the scope of the initiative involved, but on its nature and character. It is
national initiative, if what is proposed to be adopted or enacted is a national
law, or a law which only Congress can pass. It is local initiative if what is
proposed to be adopted or enacted is a law, ordinance, or resolution which
only the legislative bodies of the governments of the autonomous regions,
provinces, cities, municipalities, and barangays can pass. This classification

Hence, to complete the classification under subtitles there should have

been a subtitle on initiative on amendments to the Constitution.[53]
A further examination of the Act even reveals that the subtitling is
not accurate. Provisions not germane to the subtitle on National Initiative
and Referendum are placed therein, like (1) paragraphs (b) and (c) of
Section 9, which reads:
(b) The proposition in an initiative on the Constitution approved by the
majority of the votes cast in the plebiscite shall become effective as to the
day of the plebiscite.
(c) A national or local initiative proposition approved by majority of the votes
cast in an election called for the purpose shall become effective fifteen (15)
days after certification and proclamation of the Commission. (Underscoring
supplied).
(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative
with the legislative bodies of local governments; thus:

SEC. 11. Indirect Initiative. -- Any duly accredited peoples organization, as

defined by law, may file a petition for indirect initiative with the House of
Representatives, and other legislative bodies....

(a) The preliminary requirement as to the number of signatures of registered

voters for the petition;
(b) The submission of the petition to the local legislative body concerned;

and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC

on the findings of sufficiency or insufficiency of the petition for initiative or
referendum, which could be petitions for both national and local initiative and
referendum.

(c) The effect of the legislative bodys failure to favorably act thereon, and the
invocation of the power of initiative as a consequence thereof;

Upon the other hand, Section 18 on Authority of Courts under subtitle

III on Local Initiative and Referendum is misplaced,[54] since the provision
therein applies to both national and local initiative and referendum. It reads:

(d) The formulation of the proposition;

SEC. 18. Authority of Courts. -- Nothing in this Act shall prevent or preclude
the proper courts from declaring null and void any proposition approved
pursuant to this Act for violation of the Constitution or want of capacity of the
local legislative body to enact the said measure.

(f) The persons before whom the petition shall be signed;

Curiously, too, while R.A. No. 6735 exerted utmost diligence and care
in providing for the details in the implementation of initiative and referendum
on national and local legislation thereby giving them special attention, it
failed, rather intentionally, to do so on the system of initiative on
amendments to the Constitution. Anent the initiative on national legislation,
the Act provides for the following:

(e) The period within which to gather the signatures;

(g) The issuance of a certification by the COMELEC through its official in the
local government unit concerned as to whether the required number of
signatures have been obtained;
(h) The setting of a date by the COMELEC for the submission of the
proposition to the registered voters for their approval, which must be within
the period specified therein;
(i) The issuance of a certification of the result;

(a) The required percentage of registered voters to sign the petition and the
contents of the petition;

(j) The date of effectivity of the approved proposition;

(b) The conduct and date of the initiative;

(k) The limitations on local initiative; and

(c) The submission to the electorate of the proposition and the required
number of votes for its approval;

(l) The limitations upon local legislative bodies.[56]

(d) The certification by the COMELEC of the approval of the proposition;

(e) The publication of the approved proposition in the Official Gazette or in a
newspaper of general circulation in the Philippines; and
(f) The effects of the approval or rejection of the proposition.[55]
As regards local initiative, the Act provides for the following:

Upon the other hand, as to initiative on amendments to the

Constitution, R.A. No. 6735, in all of its twenty-three sections, merely (a)
mentions, the word Constitution in Section 2; (b) defines initiative on the
Constitution and includes it in the enumeration of the three systems of
initiative in Section 3; (c) speaks of plebiscite as the process by which the
proposition in an initiative on the Constitution may be approved or rejected
by the people; (d) reiterates the constitutional requirements as to the number
of voters who should sign the petition; and (e) provides for the date of
effectivity of the approved proposition.

There was, therefore, an obvious downgrading of the more important or

the paramount system of initiative. R.A. No. 6735 thus delivered a
humiliating blow to the system of initiative on amendments to the
Constitution by merely paying it a reluctant lip service.[57]

subordinate legislation. The delegation of the power to the COMELEC is

then invalid.

The foregoing brings us to the conclusion that R.A. No. 6735 is

incomplete, inadequate, or wanting in essential terms and conditions insofar
as initiative on amendments to the Constitution is concerned. Its lacunae on
this substantive matter are fatal and cannot be cured by empowering the
COMELEC to promulgate such rules and regulations as may be necessary
to carry out the purposes of [the] Act.[58]

COMELEC
RESOLUTION
NO.
2300,
INSOFAR
AS
IT PRESCRIBES RULES AND REGULATIONS ON THE
CONDUCT OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, IS VOID.

The rule is that what has been delegated, cannot be delegated or as

expressed in a Latin maxim: potestas delegata non delegari potest.[59] The
recognized exceptions to the rule are as follows:
(1) Delegation of tariff powers to the President under Section 28(2) of Article
VI of the Constitution;
(2) Delegation of emergency powers to the President under Section 23(2) of
Article VI of the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies.[60]
Empowering the COMELEC, an administrative body exercising quasijudicial functions, to promulgate rules and regulations is a form of delegation
of legislative authority under no. 5 above.However, in every case of
permissible delegation, there must be a showing that the delegation itself is
valid. It is valid only if the law (a) is complete in itself, setting forth therein the
policy to be executed, carried out, or implemented by the delegate; and (b)
fixes a standard -- the limits of which are sufficiently determinate and
determinable -- to which the delegate must conform in the performance of
his functions.[61] A sufficient standard is one which defines legislative policy,
marks its limits, maps out its boundaries and specifies the public agency to
apply it. It indicates the circumstances under which the legislative command
is to be effected.[62]
Insofar as initiative to propose amendments to the Constitution is
concerned, R.A. No. 6735 miserably failed to satisfy both requirements in

III

It logically follows that the COMELEC cannot validly promulgate rules

and regulations to implement the exercise of the right of the people to
directly propose amendments to the Constitution through the system of
initiative. It does not have that power under R.A. No. 6735. Reliance on the
COMELECs power under Section 2(1) of Article IX-C of the Constitution is
misplaced, for the laws and regulations referred to therein are those
promulgated by the COMELEC under (a) Section 3 of Article IX-C of the
Constitution, or (b) a law where subordinate legislation is authorized and
which satisfies the completeness and the sufficient standard tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE
ABUSE OF DISCRETION IN ENTERTAINING THE DELFIN
PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance
with the power of Congress to implement the right to initiate constitutional
amendments, or that it has validly vested upon the COMELEC the power of
subordinate legislation and that COMELEC Resolution No. 2300 is valid, the
COMELEC acted without jurisdiction or with grave abuse of discretion in
entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of
R.A. No. 6735, a petition for initiative on the Constitution must be signed by
at least 12% of the total number of registered voters of which every
legislative district is represented by at least 3% of the registered voters
therein. The Delfin Petition does not contain signatures of the required
number of voters.Delfin himself admits that he has not yet gathered
signatures and that the purpose of his petition is primarily to obtain
assistance in his drive to gather signatures. Without the required signatures,
the petition cannot be deemed validly initiated.
The COMELEC acquires jurisdiction over a petition for initiative only
after its filing. The petition then is the initiatory pleading. Nothing before its
filing is cognizable by the COMELEC, sittingen banc. The only participation
of the COMELEC or its personnel before the filing of such petition are (1) to

prescribe the form of the petition; [63] (2) to issue through its Election Records
and Statistics Office a certificate on the total number of registered voters in
each legislative district;[64] (3) to assist, through its election registrars, in the
establishment of signature stations;[65] and (4) to verify, through its election
registrars, the signatures on the basis of the registry list of voters, voters
affidavits, and voters identification cards used in the immediately preceding
election.[66]

b) DECLARING R.A. No. 6735 inadequate to cover the system of

initiative on amendments to the Constitution, and to have failed to provide
sufficient standard for subordinate legislation;

Since the Delfin Petition is not the initiatory petition under R.A. No.
6735 and COMELEC Resolution No. 2300, it cannot be entertained or given
cognizance of by the COMELEC. The latter knew that the petition does not
fall under any of the actions or proceedings under the COMELEC Rules of
Procedure or under Resolution No. 2300, for which reason it did not assign
to the petition a docket number. Hence, the said petition was merely entered
as UND, meaning, undocketed. That petition was nothing more than a mere
scrap of paper, which should not have been dignified by the Order of 6
December 1996, the hearing on 12 December 1996, and the order directing
Delfin and the oppositors to file their memoranda or oppositions. In so
dignifying it, the COMELEC acted without jurisdiction or with grave abuse of
discretion and merely wasted its time, energy, and resources.

d) ORDERING the Commission on Elections to forthwith DISMISS the

DELFIN petition (UND-96-037).

The foregoing considered, further discussion on the issue of whether

the proposal to lift the term limits of the elective national and local officials is
an amendment to, and not a revision of, the Constitution is rendered
unnecessary, if not academic.

CONCLUSION
This petition must then be granted, and the COMELEC should be
permanently enjoined from entertaining or taking cognizance of any petition
for initiative on amendments on the Constitution until a sufficient law shall
have been validly enacted to provide for the implementation of the system.
We feel, however, that the system of initiative to propose amendments
to the Constitution should no longer be kept in the cold; it should be given
flesh and blood, energy and strength.Congress should not tarry any longer in
complying with the constitutional mandate to provide for the implementation
of the right of the people under that system.
WHEREFORE, judgment is hreby rendered
a) GRANTING the instant petition;

c) DECLARING void those parts of Resolutions No. 2300 of the

Commission on Elections prescribing rules and regulations on the conduct of
initiative or amendments to the Constitution; and

The Temporary Restraining Order issued on 18 December 1996 is

made permanent as against the Commission on Elections, but is LIFTED
against private respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.

x------------------------------------------------------ x
ATTY. PETE QUIRINO QUADRA, Intervenor.
x--------------------------------------------------------x

Republic
SUPREME
Manila

of

the

Philippines
COURT

BAYAN represented by its Chairperson Dr. Carolina Pagaduan-Araullo,

BAYAN MUNA represented by its Chairperson Dr. Reynaldo Lesaca,
KILUSANG MAYO UNO represented by its Secretary General Joel
Maglunsod, HEAD represented by its Secretary General Dr. Gene
Alzona Nisperos, ECUMENICAL BISHOPS FORUM represented by Fr.
Dionito Cabillas, MIGRANTE represented by its Chairperson
Concepcion Bragas-Regalado, GABRIELA represented by its Secretary
General Emerenciana de Jesus, GABRIELA WOMEN'S PARTY
represented by Sec. Gen. Cristina Palabay, ANAKBAYAN represented
by Chairperson Eleanor de Guzman, LEAGUE OF FILIPINO STUDENTS
represented by Chair Vencer Crisostomo Palabay, JOJO PINEDA of the
League of Concerned Professionals and Businessmen, DR. DARBY
SANTIAGO of the Solidarity of Health Against Charter Change, DR.
REGINALD PAMUGAS of Health Action for Human Rights, Intervenors.
x--------------------------------------------------------x

EN BANC
G.R. No. 174153

October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH

6,327,952
REGISTERED
VOTERS,Petitioners,
vs.
THE COMMISSION ON ELECTIONS, Respondent.
x--------------------------------------------------------x
ALTERNATIVE LAW GROUPS, INC., Intervenor.
x ------------------------------------------------------ x
ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN, MANUEL L.
QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE, and CARLOS
P. MEDINA, JR., Intervenors.

LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA THERESA

HONTIVEROS-BARAQUEL,Intervenors.
x--------------------------------------------------------x
ARTURO M. DE CASTRO, Intervenor.
x ------------------------------------------------------- x
TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor.
x---------------------------------------------------------x
LUWALHATI RICASA ANTONINO, Intervenor.
x ------------------------------------------------------- x

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO

F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M.
BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and
AMADO GAT INCIONG, Intervenors.

x -----------------------------------------------------x

x ------------------------------------------------------- x

x -----------------------------------------------------x

RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO

BAYA, Intervenors.

G.R. No. 174299

x -------------------------------------------------------- x
PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION
(PTGWO) and MR. VICTORINO F. BALAIS, Intervenors.
x -------------------------------------------------------- x

JOSEPH EJERCITO
PILIPINO, Intervenors.

ESTRADA

and

PWERSA

NG

MASANG

October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A.V.

SAGUISAG, Petitioners,
vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S.
ABALOS, SR., and Commissioners RESURRECCION Z. BORRA,
FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V.
SARMIENTO, NICODEMO T. FERRER, and John Doe and Peter
Doe,, Respondent.

SENATE OF THE PHILIPPINES, represented by its President, MANUEL

VILLAR, JR., Intervenor.
x ------------------------------------------------------- x

DECISION

SULONG BAYAN MOVEMENT FOUNDATION, INC., Intervenor.

x ------------------------------------------------------- x
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A.
LAT,
ANTONIO
L.
SALVADOR,
and
RANDALL
TABAYOYONG, Intervenors.

CARPIO, J.:

x -------------------------------------------------------- x

These are consolidated petitions on the Resolution dated 31 August 2006 of

the Commission on Elections ("COMELEC") denying due course to an
initiative petition to amend the 1987 Constitution.

INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU

PROVINCE CHAPTERS, Intervenors.

The Case

Antecedent Facts
x --------------------------------------------------------x
SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and
SENATORS SERGIO R. OSMENA III, JAMBY MADRIGAL, JINGGOY
ESTRADA, ALFREDO S. LIM and PANFILO LACSON, Intervenors.

On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L.

Lambino and Erico B. Aumentado ("Lambino Group"), with other groups 1 and
individuals, commenced gathering signatures for an initiative petition to
change the 1987 Constitution. On 25 August 2006, the Lambino Group filed

a petition with the COMELEC to hold a plebiscite that will ratify their initiative
petition under Section 5(b) and (c)2 and Section 73 of Republic Act No. 6735
or the Initiative and Referendum Act ("RA 6735").
The Lambino Group alleged that their petition had the support of 6,327,952
individuals constituting at least twelveper centum (12%) of all registered
voters, with each legislative district represented by at least three per
centum(3%) of its registered voters. The Lambino Group also claimed that
COMELEC election registrars had verified the signatures of the 6.3 million
individuals.
The Lambino Group's initiative petition changes the 1987 Constitution by
modifying Sections 1-7 of Article VI (Legislative Department) 4 and Sections
1-4 of Article VII (Executive Department) 5 and by adding Article XVIII entitled
"Transitory Provisions."6 These proposed changes will shift the present
Bicameral-Presidential system to a Unicameral-Parliamentary form of
government. The Lambino Group prayed that after due publication of their
petition, the COMELEC should submit the following proposition in a
plebiscite for the voters' ratification:
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII
OF THE 1987 CONSTITUTION, CHANGING THE FORM OF
GOVERNMENT
FROM
THE
PRESENT
BICAMERALPRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM,
AND PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS
FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO THE
OTHER?
On 30 August 2006, the Lambino Group filed an Amended Petition with the
COMELEC indicating modifications in the proposed Article XVIII (Transitory
Provisions) of their initiative.7
The Ruling of the COMELEC
On 31 August 2006, the COMELEC issued its Resolution denying due
course to the Lambino Group's petition for lack of an enabling law governing
initiative petitions to amend the Constitution. The COMELEC invoked this
Court's ruling in Santiago v. Commission on Elections8 declaring RA 6735
inadequate to implement the initiative clause on proposals to amend the
Constitution.9

In G.R. No. 174153, the Lambino Group prays for the issuance of the writs
of certiorari and mandamus to set aside the COMELEC Resolution of 31
August 2006 and to compel the COMELEC to give due course to their
initiative petition. The Lambino Group contends that the COMELEC
committed grave abuse of discretion in denying due course to their petition
since Santiago is not a binding precedent. Alternatively, the Lambino Group
claims thatSantiago binds only the parties to that case, and their petition
deserves cognizance as an expression of the "will of the sovereign people."
In G.R. No. 174299, petitioners ("Binay Group") pray that the Court require
respondent COMELEC Commissioners to show cause why they should not
be cited in contempt for the COMELEC's verification of signatures and for
"entertaining" the Lambino Group's petition despite the permanent injunction
in Santiago. The Court treated the Binay Group's petition as an oppositionin-intervention.
In his Comment to the Lambino Group's petition, the Solicitor General joined
causes with the petitioners, urging the Court to grant the petition despite
the Santiago ruling. The Solicitor General proposed that the Court treat RA
6735 and its implementing rules "as temporary devises to implement the
system of initiative."
Various groups and individuals sought intervention, filing pleadings
supporting or opposing the Lambino Group's petition. The supporting
intervenors10 uniformly hold the view that the COMELEC committed grave
abuse of discretion in relying on Santiago. On the other hand, the opposing
intervenors11 hold the contrary view and maintain that Santiago is a binding
precedent. The opposing intervenors also challenged (1) the Lambino
Group's standing to file the petition; (2) the validity of the signature gathering
and verification process; (3) the Lambino Group's compliance with the
minimum requirement for the percentage of voters supporting an initiative
petition under Section 2, Article XVII of the 1987 Constitution;12 (4) the
nature of the proposed changes as revisions and not mere amendments as
provided under Section 2, Article XVII of the 1987 Constitution; and (5) the
Lambino Group's compliance with the requirement in Section 10(a) of RA
6735 limiting initiative petitions to only one subject.
The Court heard the parties and intervenors in oral arguments on 26
September 2006. After receiving the parties' memoranda, the Court
considered the case submitted for resolution.
The Issues

The petitions raise the following issues:

1. Whether the Lambino Group's initiative petition complies with Section 2,
Article XVII of the Constitution on amendments to the Constitution through a
people's initiative;
2. Whether this Court should revisit its ruling in Santiago declaring RA 6735
"incomplete, inadequate or wanting in essential terms and conditions" to
implement the initiative clause on proposals to amend the Constitution; and
3. Whether the COMELEC committed grave abuse of discretion in denying
due course to the Lambino Group's petition.

MR. RODRIGO: Let us look at the mechanics. Let us say some

voters want to propose a constitutional amendment. Is the draft of
the proposed constitutional amendment ready to be shown to
the people when they are asked to sign?
MR. SUAREZ: That can be reasonably assumed, Madam
President.
MR. RODRIGO: What does the sponsor mean? The draft is ready
and shown to them before they sign. Now, who prepares the
draft?
MR. SUAREZ: The people themselves, Madam President.

The Ruling of the Court

There is no merit to the petition.
The Lambino Group miserably failed to comply with the basic requirements
of the Constitution for conducting a people's initiative. Thus, there is even no
need to revisit Santiago, as the present petition warrants dismissal based
alone on the Lambino Group's glaring failure to comply with the basic
requirements of the Constitution. For following the Court's ruling in Santiago,
no grave abuse of discretion is attributable to the Commision on Elections.
1. The Initiative Petition Does Not Comply with Section 2, Article XVII of
the Constitution on Direct Proposal by the People
Section 2, Article XVII of the Constitution is the governing constitutional
provision that allows a people's initiative to propose amendments to the
Constitution. This section states:
Sec. 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of at
least twelve per centum of the total number of registered voters of
which every legislative district must be represented by at least
three per centum of the registered voters therein. x x x x (Emphasis
supplied)
The deliberations of the Constitutional Commission vividly explain the
meaning of an amendment "directly proposed by the people through
initiative upon a petition," thus:

MR. RODRIGO: No, because before they sign there is already a

draft shown to them and they are asked whether or not they want
to propose this constitutional amendment.
MR. SUAREZ: As it is envisioned, any Filipino can prepare that
proposal and pass it around for signature.13 (Emphasis
supplied)
Clearly, the framers of the Constitution intended that the "draft of the
proposed constitutional amendment" should be "ready and shown" to
the people "before" they sign such proposal. The framers plainly stated that
"before they sign there is already a draft shown to them." The framers
also "envisioned" that the people should sign on the proposal
itself because the proponents must "prepare that proposal and pass it
around for signature."
The essence of amendments "directly proposed by the people through
initiative upon a petition" is that the entire proposal on its face is a
petition by the people. This means two essential elements must be
present. First, the people must author and thus sign the entire proposal. No
agent or representative can sign on their behalf. Second, as an initiative
upon a petition, the proposal must be embodied in a petition.
These essential elements are present only if the full text of the proposed
amendments is first shown to the people who express their assent by
signing such complete proposal in a petition. Thus, an amendment is
"directly proposed by the people through initiative upon a petition"

only if the people sign on a petition that contains the full text of the
proposed amendments.
The full text of the proposed amendments may be either written on the face
of the petition, or attached to it. If so attached, the petition must state the fact
of such attachment. This is an assurance that every one of the several
millions of signatories to the petition had seen the full text of the proposed
amendments before signing. Otherwise, it is physically impossible, given the
time constraint, to prove that every one of the millions of signatories had
seen the full text of the proposed amendments before signing.
The framers of the Constitution directly borrowed 14 the concept of people's
initiative from the United States where various State constitutions
incorporate an initiative clause. In almost all States15 which allow initiative
petitions, the unbending requirement is that the people must first see
the full text of the proposed amendments before they sign to signify
their assent, and that the people must sign on an initiative petition that
contains the full text of the proposed amendments.16
The rationale for this requirement has been repeatedly explained in several
decisions of various courts. Thus, inCapezzuto v. State Ballot
Commission, the Supreme Court of Massachusetts, affirmed by the First
Circuit Court of Appeals, declared:
[A] signature requirement would be meaningless if the person
supplying the signature has not first seen what it is that he or
she is signing. Further, and more importantly, loose interpretation
of the subscription requirement can pose a significant potential for
fraud. A person permitted to describe orally the contents of an
initiative petition to a potential signer, without the signer having
actually examined the petition, could easily mislead the signer by,
for example, omitting, downplaying, or even flatly misrepresenting,
portions of the petition that might not be to the signer's liking. This
danger seems particularly acute when, in this case, the person
giving the description is the drafter of the petition, who
obviously has a vested interest in seeing that it gets the
requisite signatures to qualify for the ballot.17 (Boldfacing and
underscoring supplied)
Likewise, in Kerr v. Bradbury,18 the Court of Appeals of Oregon explained:
The purposes of "full text" provisions that apply to amendments by
initiative commonly are described in similar terms. x x x (The

purpose of the full text requirement is to provide sufficient

information so that registered voters can intelligently evaluate
whether to sign the initiative petition."); x x x (publication of full
text of amended constitutional provision required because it is
"essential for the elector to have x x x the section which is proposed
to be added to or subtracted from. If he is to vote intelligently, he
must have this knowledge. Otherwise in many instances he would
be required to vote in the dark.") (Emphasis supplied)
Moreover, "an initiative signer must be informed at the time of signing of
the nature and effect of that which is proposed" and failure to do so is
"deceptive and misleading" which renders the initiative void.19
Section 2, Article XVII of the Constitution does not expressly state that the
petition must set forth the full text of the proposed amendments. However,
the deliberations of the framers of our Constitution clearly show that the
framers intended to adopt the relevant American jurisprudence on people's
initiative. In particular, the deliberations of the Constitutional
Commission explicitly reveal that the framers intended that the people
must first see the full text of the proposed amendments before they
sign, and that the people must sign on a petition containing such full
text. Indeed, Section 5(b) of Republic Act No. 6735, the Initiative and
Referendum Act that the Lambino Group invokes as valid, requires that the
people must sign the "petition x x x as signatories."
The proponents of the initiative secure the signatures from the people. The
proponents secure the signatures in their private capacity and not as public
officials. The proponents are not disinterested parties who can impartially
explain the advantages and disadvantages of the proposed amendments to
the people. The proponents present favorably their proposal to the people
and do not present the arguments against their proposal. The proponents, or
their supporters, often pay those who gather the signatures.
Thus, there is no presumption that the proponents observed the
constitutional requirements in gathering the signatures. The proponents bear
the burden of proving that they complied with the constitutional requirements
in gathering the signatures - that the petition contained, or incorporated
by attachment, the full text of the proposed amendments.
The Lambino Group did not attach to their present petition with this Court a
copy of the paper that the people signed as their initiative petition. The
Lambino Group submitted to this Court a copy of a signature sheet20 after
the oral arguments of 26 September 2006 when they filed their

Memorandum on 11 October 2006. The signature sheet with this Court

during the oral arguments was the signature sheet attached 21 to the
opposition in intervention filed on 7 September 2006 by intervenor Atty. Pete
Quirino-Quadra.
The signature sheet attached to Atty. Quadra's opposition and the signature
sheet attached to the Lambino Group's Memorandum are the same. We
reproduce below the signature sheet in full:

4
Province:

City/Municipality:

No. of
Verified

Legislative District:

Barangay:

Signatures:
6

PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF

ARTICLES VI AND VII OF THE 1987 CONSTITUTION, CHANGING THE
FORM OF GOVERNMENT FROM THE PRESENT BICAMERALPRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM OF
GOVERNMENT, IN ORDER TO ACHIEVE GREATER EFFICIENCY,
SIMPLICITY AND ECONOMY IN GOVERNMENT; AND PROVIDING AN
ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY
SHIFT FROM ONE SYSTEM TO ANOTHER?"
I hereby APPROVE the proposed amendment to the 1987 Constitution. My
signature herein which shall form part of the petition for initiative to amend
the Constitution signifies my support for the filing thereof.

10
Precinct Name
Number
Last Name, First Name,
M.I.

Address

Birthdate
MM/DD/YY

_________________
Barangay
(Print Name and Sign)

Official

_________________
Witness
(Print Name and Sign)

There is not a single word, phrase, or sentence of text of the Lambino

Group's proposed changes in the signature sheet. Neither does the

___________
Witness
(Print Name

signature sheet state that the text of the proposed changes is attached
to it. Petitioner Atty. Raul Lambino admitted this during the oral arguments
before this Court on 26 September 2006.
The signature sheet merely asks a question whether the people approve a
shift from the Bicameral-Presidential to the Unicameral-Parliamentary
system of government. The signature sheet does not show to the people
the draft of the proposed changes before they are asked to sign the
signature sheet. Clearly, the signature sheet is not the "petition" that the
framers of the Constitution envisioned when they formulated the initiative
clause in Section 2, Article XVII of the Constitution.
Petitioner Atty. Lambino, however, explained that during the signaturegathering from February to August 2006, the Lambino Group circulated,
together with the signature sheets, printed copies of the Lambino Group's
draft petition which they later filed on 25 August 2006 with the COMELEC.
When asked if his group also circulated the draft of their amended petition
filed on 30 August 2006 with the COMELEC, Atty. Lambino initially replied
that they circulated both. However, Atty. Lambino changed his answer and
stated that what his group circulated was the draft of the 30 August 2006
amended petition, not the draft of the 25 August 2006 petition.
The Lambino Group would have this Court believe that they prepared the
draft of the 30 August 2006 amended petition almost seven months earlier
in February 2006 when they started gathering signatures. Petitioner Erico
B. Aumentado's "Verification/Certification" of the 25 August 2006 petition, as
well as of the 30 August 2006 amended petition, filed with the COMELEC,
states as follows:
I have caused the preparation of the foregoing [Amended] Petition
in my personal capacity as a registered voter, for and on behalf of
the Union of Local Authorities of the Philippines, as shown by
ULAP Resolution No. 2006-02 hereto attached, and as
representative of the mass of signatories hereto. (Emphasis
supplied)
The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02
to the present petition. However, the "Official Website of the Union of Local
Authorities of the Philippines"22 has posted the full text of Resolution No.
2006-02, which provides:
RESOLUTION NO. 2006-02

RESOLUTION SUPPORTING THE PROPOSALS OF THE

PEOPLE'S CONSULTATIVE COMMISSION ON CHARTER
CHANGE THROUGH PEOPLE'S INITIATIVE AND REFERENDUM
AS A MODE OF AMENDING THE 1987 CONSTITUTION
WHEREAS, there is a need for the Union of Local Authorities of the
Philippines (ULAP) to adopt a common stand on the approach to
support the proposals of the People's Consultative Commission on
Charter Change;
WHEREAS, ULAP maintains its unqualified support to the agenda
of Her Excellency President Gloria Macapagal-Arroyo for
constitutional reforms as embodied in the ULAP Joint Declaration
for Constitutional Reforms signed by the members of the ULAP and
the majority coalition of the House of Representatives in Manila
Hotel sometime in October 2005;
WHEREAS, the People's Consultative Commission on Charter
Change created by Her Excellency to recommend amendments to
the 1987 Constitution has submitted its final report sometime in
December 2005;
WHEREAS, the ULAP is mindful of the current political
developments in Congress which militates against the use of the
expeditious form of amending the 1987 Constitution;
WHEREAS, subject to the ratification of its institutional members
and the failure of Congress to amend the Constitution as a
constituent assembly, ULAP has unanimously agreed to pursue the
constitutional reform agenda through People's Initiative and
Referendum without prejudice to other pragmatic means to pursue
the same;
WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED,
THAT ALL THE MEMBER-LEAGUES OF THE UNION OF LOCAL
AUTHORITIES OF THE PHILIPPINES (ULAP) SUPPORT THE
PORPOSALS (SIC) OF THE PEOPLE'S CONSULATATIVE (SIC)
COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S
INITIATIVE AND REFERENDUM AS A MODE OF AMENDING
THE 1987 CONSTITUTION;

DONE, during the ULAP National Executive Board special meeting

held on 14 January 2006 at the Century Park Hotel,
Manila.23 (Underscoring supplied)
ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to
prepare the 25 August 2006 petition, or the 30 August 2006 amended
petition, filed with the COMELEC. ULAP Resolution No. 2006-02
"support(s) the porposals (sic) of the Consulatative (sic) Commission
on Charter Change through people's initiative and referendum as a mode of
amending the 1987 Constitution." The proposals of the Consultative
Commission24 arevastly different from the proposed changes of the
Lambino Group in the 25 August 2006 petition or 30 August 2006 amended
petition filed with the COMELEC.
For example, the proposed revisions of the Consultative Commission
affect all provisions of the existing Constitution, from the Preamble to the
Transitory Provisions. The proposed revisions have profound impact on
the Judiciary and the National Patrimony provisions of the existing
Constitution, provisions that the Lambino Group's proposed changes do not
touch. The Lambino Group's proposed changes purport to affect only Articles
VI and VII of the existing Constitution, including the introduction of new
Transitory Provisions.
The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more
than six months before the filing of the 25 August 2006 petition or the 30
August 2006 amended petition with the COMELEC. However, ULAP
Resolution No. 2006-02 does not establish that ULAP or the Lambino Group
caused the circulation of the draft petition, together with the signature
sheets, six months before the filing with the COMELEC. On the
contrary, ULAP Resolution No. 2006-02 casts grave doubt on the
Lambino Group's claim that they circulated the draft petition together
with the signature sheets. ULAP Resolution No. 2006-02 does not refer
at all to the draft petition or to the Lambino Group's proposed changes.
In their Manifestation explaining their amended petition before the
COMELEC, the Lambino Group declared:
After the Petition was filed, Petitioners belatedly realized that the
proposed amendments alleged in the Petition, more specifically,
paragraph 3 of Section 4 and paragraph 2 of Section 5 of the
Transitory Provisions were inaccurately stated and failed to
correctly reflect their proposed amendments.

The Lambino Group did not allege that they were amending the petition
because the amended petition was what they had shown to the people
during the February to August 2006 signature-gathering. Instead, the
Lambino Group alleged that the petition of 25 August 2006 "inaccurately
stated and failed to correctly reflect their proposed amendments."
The Lambino Group never alleged in the 25 August 2006 petition or the 30
August 2006 amended petition with the COMELEC that they circulated
printed copies of the draft petition together with the signature sheets.
Likewise, the Lambino Group did not allege in their present petition before
this Court that they circulated printed copies of the draft petition together
with the signature sheets. The signature sheets do not also contain any
indication that the draft petition is attached to, or circulated with, the
signature sheets.
It is only in their Consolidated Reply to the Opposition-in-Interventions that
the Lambino Group first claimed that they circulated the "petition for initiative
filed with the COMELEC," thus:
[T]here is persuasive authority to the effect that "(w)here there is
not (sic) fraud, a signer who did not read the measure attached
to a referendum petition cannot question his signature on the
ground that he did not understand the nature of the act." [82
C.J.S. S128h. Mo. State v. Sullivan, 224, S.W. 327, 283 Mo. 546.]
Thus, the registered voters who signed the signature sheets
circulated together with the petition for initiative filed with the
COMELEC below, are presumed to have understood the
proposition contained in the petition. (Emphasis supplied)
The Lambino Group's statement that they circulated to the people "the
petition for initiative filed with the COMELEC" appears an afterthought,
made after the intervenors Integrated Bar of the Philippines (Cebu City
Chapter and Cebu Province Chapters) and Atty. Quadra had pointed out that
the signature sheets did not contain the text of the proposed changes. In
their Consolidated Reply, the Lambino Group alleged that they circulated
"the petition for initiative" but failed to mention the amended petition. This
contradicts what Atty. Lambino finally stated during the oral arguments that
what they circulated was the draft of the amended petition of 30 August
2006.
The Lambino Group cites as authority Corpus Juris Secundum, stating that
"a signer who did not read the measureattached to a referendum
petition cannot question his signature on the ground that he did not

understand the nature of the act." The Lambino Group quotes an authority
that cites a proposed change attached to the petition signed by the
people. Even the authority the Lambino Group quotes requires that the
proposed change must be attached to the petition. The same authority the
Lambino Group quotes requires the people to sign on the petition itself.
Indeed, it is basic in American jurisprudence that the proposed amendment
must be incorporated with, or attached to, the initiative petition signed by the
people. In the present initiative, the Lambino Group's proposed changes
were not incorporated with, or attached to, the signature sheets. The
Lambino Group's citation of Corpus Juris Secundum pulls the rug from under
their feet.
It is extremely doubtful that the Lambino Group prepared, printed, circulated,
from February to August 2006 during the signature-gathering period, the
draft of the petition or amended petition they filed later with the COMELEC.
The Lambino Group are less than candid with this Court in their belated
claim that they printed and circulated, together with the signature sheets, the
petition or amended petition. Nevertheless, even assuming the Lambino
Group circulated the amended petition during the signature-gathering
period, the Lambino Group admitted circulating only very limited
copies of the petition.
During the oral arguments, Atty. Lambino expressly admitted that they
printed only 100,000 copies of the draft petition they filed more than six
months later with the COMELEC. Atty. Lambino added that he also asked
other supporters to print additional copies of the draft petition but he could
not state with certainty how many additional copies the other supporters
printed. Atty. Lambino could only assure this Court of the printing of
100,000 copies because he himself caused the printing of these
100,000 copies.
Likewise, in the Lambino Group's Memorandum filed on 11 October
2006, the Lambino Group expressly admits that "petitioner Lambino
initiated the printing and reproduction of 100,000 copies of the petition
for initiative x x x."25 This admission binds the Lambino Group and
establishes beyond any doubt that the Lambino Group failed to show
the full text of the proposed changes to the great majority of the people
who signed the signature sheets.
Thus, of the 6.3 million signatories, only 100,000 signatories could have
received with certainty one copy each of the petition, assuming a 100
percent distribution with no wastage. If Atty. Lambino and company attached

one copy of the petition to each signature sheet, only 100,000 signature
sheets could have circulated with the petition. Each signature sheet contains
space for ten signatures. Assuming ten people signed each of these 100,000
signature sheets with the attached petition, the maximum number of people
who saw the petition before they signed the signature sheets would not
exceed 1,000,000.
With only 100,000 printed copies of the petition, it would be physically
impossible for all or a great majority of the 6.3 million signatories to have
seen the petition before they signed the signature sheets. The inescapable
conclusion is that the Lambino Group failed to show to the 6.3 million
signatories the full text of the proposed changes. If ever, not more than
one million signatories saw the petition before they signed the signature
sheets.
In any event, the Lambino Group's signature sheets do not contain the full
text of the proposed changes, either on the face of the signature sheets, or
as attachment with an indication in the signature sheet of such
attachment.Petitioner Atty. Lambino admitted this during the oral
arguments, and this admission binds the Lambino Group. This fact is
also obvious from a mere reading of the signature sheet. This omission
is fatal. The failure to so include the text of the proposed changes in the
signature sheets renders the initiative void for non-compliance with the
constitutional requirement that the amendment must be "directly proposed
by the people through initiative upon a petition." The signature sheet is
not the "petition" envisioned in the initiative clause of the Constitution.
For sure, the great majority of the 6.3 million people who signed the
signature sheets did not see the full text of the proposed changes before
signing. They could not have known the nature and effect of the proposed
changes, among which are:
1. The term limits on members of the legislature will be
lifted and thus members of Parliament can be re-elected
indefinitely;26
2. The interim Parliament can continue to function indefinitely until
its members, who are almost all the present members of Congress,
decide to call for new parliamentary elections. Thus, the members
of the interim Parliament will determine the expiration of their
own term of office; 27

3. Within 45 days from the ratification of the proposed changes, the

interim Parliament shall convene to propose further
amendments or revisions to the Constitution.28
These three specific amendments are not stated or even indicated in the
Lambino Group's signature sheets. The people who signed the signature
sheets had no idea that they were proposing these amendments. These
three proposed changes are highly controversial. The people could not have
inferred or divined these proposed changes merely from a reading or
rereading of the contents of the signature sheets.
During the oral arguments, petitioner Atty. Lambino stated that he and his
group assured the people during the signature-gathering that the
elections for the regular Parliament would be held during the 2007 local
elections if the proposed changes were ratified before the 2007 local
elections. However, the text of the proposed changes belies this.
The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in
the amended petition, states:
Section 5(2). The interim Parliament shall provide for the election of
the members of Parliament, which shall be synchronized and
held simultaneously with the election of all local government
officials. x x x x (Emphasis supplied)
Section 5(2) does not state that the elections for the regular Parliament will
be held simultaneously with the 2007 local elections. This section merely
requires that the elections for the regular Parliament shall be held
simultaneously with the local elections without specifying the year.

and possibly even beyond the five-year term of office of regular members of
the Parliament. Certainly, this is contrary to the representations of Atty.
Lambino and his group to the 6.3 million people who signed the
signature sheets. Atty. Lambino and his group deceived the 6.3 million
signatories, and even the entire nation.
This lucidly shows the absolute need for the people to sign an initiative
petition that contains the full text of the proposed amendments to avoid fraud
or misrepresentation. In the present initiative, the 6.3 million signatories had
to rely on the verbal representations of Atty. Lambino and his group
because the signature sheets did not contain the full text of the proposed
changes. The result is a grand deception on the 6.3 million signatories who
were led to believe that the proposed changes would require the holding in
2007 of elections for the regular Parliament simultaneously with the local
elections.
The Lambino Group's initiative springs another surprise on the people who
signed the signature sheets. The proposed changes mandate the interim
Parliament to make further amendments or revisions to the Constitution. The
proposed Section 4(4), Article XVIII on Transitory Provisions, provides:
Section 4(4). Within forty-five days from ratification of these
amendments, the interim Parliament shall convene to propose
amendments to, or revisions of, this Constitution consistent
with the principles of local autonomy, decentralization and a strong
bureaucracy. (Emphasis supplied)
During the oral arguments, Atty. Lambino stated that this provision is a
"surplusage" and the Court and the people should simply ignore it. Far from
being a surplusage, this provision invalidates the Lambino Group's initiative.

Petitioner Atty. Lambino, who claims to be the principal drafter of the

proposed changes, could have easily written the word "next" before the
phrase "election of all local government officials." This would have insured
that the elections for the regular Parliament would be held in the next local
elections following the ratification of the proposed changes. However, the
absence of the word "next" allows the interim Parliament to schedule the
elections for the regular Parliament simultaneously with any future local
elections.

Section 4(4) is a subject matter totally unrelated to the shift from the
Bicameral-Presidential to the Unicameral-Parliamentary system. American
jurisprudence on initiatives outlaws this as logrolling - when the initiative
petition incorporates an unrelated subject matter in the same petition. This
puts the people in a dilemma since they can answer only either yes or no to
the entire proposition, forcing them to sign a petition that effectively contains
two propositions, one of which they may find unacceptable.

Thus, the members of the interim Parliament will decide the expiration of
their own term of office. This allows incumbent members of the House of
Representatives to hold office beyond their current three-year term of office,

Under American jurisprudence, the effect of logrolling is to nullify the entire

proposition and not only the unrelated subject matter. Thus, in Fine v.
Firestone,29 the Supreme Court of Florida declared:

Combining multiple propositions into one proposal constitutes

"logrolling," which, if our judicial responsibility is to mean
anything, we cannot permit. The very broadness of the proposed
amendment amounts to logrolling because the electorate cannot
know what it is voting on - the amendment's proponents' simplistic
explanation reveals only the tip of the iceberg. x x x x The ballot
must give the electorate fair notice of the proposed amendment
being voted on. x x x x The ballot language in the instant case fails
to do that. The very broadness of the proposal makes it impossible
to state what it will affect and effect and violates the requirement
that proposed amendments embrace only one subject. (Emphasis
supplied)
Logrolling confuses and even deceives the people. In Yute Air Alaska v.
McAlpine,30 the Supreme Court of Alaska warned against "inadvertence,
stealth and fraud" in logrolling:
Whenever a bill becomes law through the initiative process, all of the
problems that the single-subject rule was enacted to prevent are
exacerbated. There is a greater danger of logrolling, or the deliberate
intermingling of issues to increase the likelihood of an initiative's passage,
and there is a greater opportunity for "inadvertence, stealth and fraud"
in the enactment-by-initiative process. The drafters of an initiative operate
independently of any structured or supervised process. They often
emphasize particular provisions of their proposition, while remaining silent
on other (more complex or less appealing) provisions, when communicating
to the public. x x x Indeed, initiative promoters typically use simplistic
advertising to present their initiative to potential petition-signers and
eventual voters. Many voters will never read the full text of the initiative
before the election. More importantly, there is no process for amending or
splitting the several provisions in an initiative proposal. These difficulties
clearly distinguish the initiative from the legislative process. (Emphasis
supplied)
Thus, the present initiative appears merely a preliminary step for further
amendments or revisions to be undertaken by the interim Parliament as a
constituent assembly. The people who signed the signature sheets could not
have known that their signatures would be used to propose an
amendment mandating the
interim
Parliament
to
proposefurther amendments or revisions to the Constitution.
Apparently, the Lambino Group inserted the proposed Section 4(4)
to compel the interim Parliament to amend or revise again the Constitution

within 45 days from ratification of the proposed changes, or before the May
2007 elections. In the absence of the proposed Section 4(4), the interim
Parliament has the discretion whether to amend or revise again the
Constitution. With the proposed Section 4(4), the initiative proponents want
the interim Parliament mandated to immediately amend or revise again the
Constitution.
However, the signature sheets do not explain the reason for this rush in
amending or revising again so soon the Constitution. The signature sheets
do not also explain what specific amendments or revisions the initiative
proponents want the interim Parliament to make, and why there is a need for
such further amendments or revisions.The people are again left in the
dark to fathom the nature and effect of the proposed changes. Certainly,
such an initiative is not "directly proposed by the people" because the people
do not even know the nature and effect of the proposed changes.
There is another intriguing provision inserted in the Lambino Group's
amended petition of 30 August 2006. The proposed Section 4(3) of the
Transitory Provisions states:
Section 4(3). Senators whose term of office ends in 2010 shall be
members of Parliament until noon of the thirtieth day of June 2010.
After 30 June 2010, not one of the present Senators will remain as member
of Parliament if the interim Parliament does not schedule elections for the
regular Parliament by 30 June 2010. However, there is no counterpart
provision for the present members of the House of Representatives even if
their term of office will all end on 30 June 2007, three years earlier than that
of half of the present Senators. Thus, all the present members of the House
will remain members of the interim Parliament after 30 June 2010.
The term of the incumbent President ends on 30 June 2010. Thereafter, the
Prime Minister exercises all the powers of the President. If the interim
Parliament does not schedule elections for the regular Parliament by 30
June 2010, the Prime Minister will come only from the present members of
the House of Representatives to the exclusion of the present Senators.
The signature sheets do not explain this discrimination against the
Senators. The 6.3 million people who signed the signature sheets could
not have known that their signatures would be used to discriminate
against the Senators. They could not have known that their signatures
would be used to limit, after 30 June 2010, the interim Parliament's

choice of Prime Minister only to members of the existing House of

Representatives.

(1) The Congress, upon a vote of three-fourths of all its Members,

or

An initiative that gathers signatures from the people without first showing to
the people the full text of the proposed amendments is most likely a
deception, and can operate as a gigantic fraud on the people. That is why
the Constitution requires that an initiative must be "directly proposed by
the people x x x in a petition" - meaning that the people must sign on a
petition that contains the full text of the proposed amendments. On so vital
an issue as amending the nation's fundamental law, the writing of the text of
the proposed amendments cannot be hidden from the people under a
general or special power of attorney to unnamed, faceless, and unelected
individuals.

(2) A constitutional convention.

Sec. 2. Amendments to this Constitution may likewise be directly
proposed by the people through initiative x x x. (Emphasis supplied)
Article XVII of the Constitution speaks of three modes of amending the
Constitution. The first mode is through Congress upon three-fourths vote of
all its Members. The second mode is through a constitutional convention.
The third mode is through a people's initiative.

The Constitution entrusts to the people the power to directly propose

amendments to the Constitution. This Court trusts the wisdom of the people
even if the members of this Court do not personally know the people who
sign the petition. However, this trust emanates from a fundamental
assumption: the full text of the proposed amendment is first shown to
the people before they sign the petition, not after they have signed the
petition.

Section 1 of Article XVII, referring to the first and second modes, applies to
"[A]ny amendment to, or revision of, this Constitution." In contrast, Section 2
of Article XVII, referring to the third mode, applies only to "[A]mendments to
this Constitution." This distinction was intentional as shown by the following
deliberations of the Constitutional Commission:

In short, the Lambino Group's initiative is void and unconstitutional because

it dismally fails to comply with the requirement of Section 2, Article XVII of
the Constitution that the initiative must be "directly proposed by the
people through initiative upon a petition."

May we respectfully call the attention of the Members of the

Commission that pursuant to the mandate given to us last night, we
submitted this afternoon a complete Committee Report No. 7 which
embodies the proposed provision governing the matter of initiative.
This is now covered by Section 2 of the complete committee report.
With the permission of the Members, may I quote Section 2:

2. The Initiative Violates Section 2, Article XVII of the Constitution

Disallowing Revision through Initiatives
A people's initiative to change the Constitution applies only to an
amendment of the Constitution and not to its revision. In contrast, Congress
or a constitutional convention can propose both amendments and revisions
to the Constitution. Article XVII of the Constitution provides:
ARTICLE
AMENDMENTS OR REVISIONS

XVII

Sec. 1. Any amendment to, or revision of, this Constitution may

be proposed by:

MR. SUAREZ: Thank you, Madam President.

The people may, after five years from the date of the last plebiscite
held, directly propose amendments to this Constitution thru initiative
upon petition of at least ten percent of the registered voters.
This completes the blanks appearing in the original Committee
Report No. 7. This proposal was suggested on the theory that this
matter of initiative, which came about because of the extraordinary
developments this year, has to be separated from the traditional
modes of amending the Constitution as embodied in Section 1.The
committee members felt that this system of initiative should be
limited to amendments to the Constitution and should not
extend to the revision of the entire Constitution, so we
removed it from the operation of Section 1 of the proposed
Article on Amendment or Revision. x x x x

xxxx
MS. AQUINO: [I] am seriously bothered by providing this process of
initiative as a separate section in the Article on Amendment. Would
the sponsor be amenable to accepting an amendment in terms of
realigning Section 2 as another subparagraph (c) of Section 1,
instead of setting it up as another separate section as if it were a
self-executing provision?
MR. SUAREZ: We would be amenable except that, as we clarified
a while ago, this process of initiative is limited to the matter of
amendment and should not expand into a revision which
contemplates a total overhaul of the Constitution. That was the
sense that was conveyed by the Committee.
MS. AQUINO: In other words, the Committee was attempting to
distinguish the coverage of modes (a) and (b) in Section 1 to
include the process of revision; whereas, the process of
initiation to amend, which is given to the public, would only
apply to amendments?
MR. SUAREZ: That is right. Those were the terms envisioned in
the Committee.
MS. AQUINO: I thank the sponsor; and thank you, Madam
President.
xxxx
MR. MAAMBONG: My first question: Commissioner Davide's
proposed amendment on line 1 refers to "amendments." Does
it not cover the word "revision" as defined by Commissioner
Padilla when he made the distinction between the words
"amendments" and "revision"?
MR. DAVIDE: No, it does not, because "amendments" and
"revision" should be covered by Section 1. So insofar as
initiative is concerned, it can only relate to "amendments" not
"revision."
MR. MAAMBONG: Thank you.31 (Emphasis supplied)

There can be no mistake about it. The framers of the Constitution intended,
and wrote, a clear distinction between "amendment" and "revision" of the
Constitution. The framers intended, and wrote, that only Congress or a
constitutional convention may propose revisions to the Constitution. The
framers intended, and wrote, that a people's initiative may propose only
amendments to the Constitution. Where the intent and language of the
Constitution clearly withhold from the people the power to propose revisions
to the Constitution, the people cannot propose revisions even as they are
empowered to propose amendments.
This has been the consistent ruling of state supreme courts in the United
States. Thus, in McFadden v. Jordan,32the Supreme Court of California
ruled:
The initiative power reserved by the people by amendment to
the Constitution x x x applies only to the proposing and the
adopting or rejecting of 'laws and amendments to the
Constitution' and does not purport to extend to a
constitutional revision. x x x x It is thus clear that a revision of the
Constitution may be accomplished only through ratification by the
people of a revised constitution proposed by a convention called for
that purpose as outlined hereinabove. Consequently if the scope of
the proposed initiative measure (hereinafter termed 'the measure')
now before us is so broad that if such measure became law a
substantial revision of our present state Constitution would be
effected, then the measure may not properly be submitted to the
electorate until and unless it is first agreed upon by a constitutional
convention, and the writ sought by petitioner should issue. x x x x
(Emphasis supplied)
Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:33
It is well established that when a constitution specifies the manner
in which it may be amended or revised, it can be altered by those
who favor amendments, revision, or other change only through the
use of one of the specified means. The constitution itself
recognizes that there is a difference between an amendment and a
revision; and it is obvious from an examination of the measure here
in question that it is not an amendment as that term is generally
understood and as it is used in Article IV, Section 1. The document
appears to be based in large part on the revision of the constitution
drafted by the 'Commission for Constitutional Revision' authorized
by the 1961 Legislative Assembly, x x x and submitted to the 1963

Legislative Assembly. It failed to receive in the Assembly the twothird's majority vote of both houses required by Article XVII, Section
2, and hence failed of adoption, x x x.
While differing from that document in material respects, the
measure sponsored by the plaintiffs is, nevertheless, a thorough
overhauling of the present constitution x x x.
To call it an amendment is a misnomer.
Whether it be a revision or a new constitution, it is not such a
measure as can be submitted to the people through the initiative. If
a revision, it is subject to the requirements of Article XVII, Section
2(1); if a new constitution, it can only be proposed at a convention
called in the manner provided in Article XVII, Section 1. x x x x
Similarly, in this jurisdiction there can be no dispute that a people's initiative
can only propose amendments to the Constitution since the Constitution
itself limits initiatives to amendments. There can be no deviation from the
constitutionally prescribed modes of revising the Constitution. A popular
clamor, even one backed by 6.3 million signatures, cannot justify a deviation
from the specific modes prescribed in the Constitution itself.
As the Supreme Court of Oklahoma ruled in In re Initiative Petition No.
364:34
It is a fundamental principle that a constitution can only be
revised or amended in the manner prescribed by the
instrument itself, and that any attempt to revise a constitution
in a manner other than the one provided in the instrument is
almost invariably treated as extra-constitutional and
revolutionary. x x x x "While it is universally conceded that the
people are sovereign and that they have power to adopt a
constitution and to change their own work at will, they must, in
doing so, act in an orderly manner and according to the settled
principles of constitutional law. And where the people, in adopting a
constitution, have prescribed the method by which the people may
alter or amend it, an attempt to change the fundamental law in
violation of the self-imposed restrictions, is unconstitutional." x x x x
(Emphasis supplied)

This Court, whose members are sworn to defend and protect the
Constitution, cannot shirk from its solemn oath and duty to insure
compliance with the clear command of the Constitution that a people's
initiative may only amend, never revise, the Constitution.
The question is, does the Lambino Group's initiative constitute an
amendment or revision of the Constitution? If the Lambino Group's initiative
constitutes a revision, then the present petition should be dismissed for
being outside the scope of Section 2, Article XVII of the Constitution.
Courts have long recognized the distinction between an amendment and a
revision of a constitution. One of the earliest cases that recognized the
distinction described the fundamental difference in this manner:
[T]he very term "constitution" implies an instrument of a permanent
and abiding nature, and the provisions contained therein for its
revision indicate the will of the people that the underlying
principles upon which it rests, as well as the substantial
entirety of the instrument, shall be of a like permanent and
abiding nature. On the other hand, the significance of the term
"amendment" implies such an addition or change within the lines of
the original instrument as will effect an improvement, or better carry
out the purpose for which it was framed.35 (Emphasis supplied)
Revision broadly implies a change that alters a basic principle in the
constitution, like altering the principle of separation of powers or the system
of checks-and-balances. There is also revision if the change alters the
substantial entirety of the constitution, as when the change affects
substantial provisions of the constitution. On the other hand,
amendment broadly refers to a change that adds, reduces, or deletes
without altering the basic principle involved. Revision generally affects
several provisions of the constitution, while amendment generally affects
only the specific provision being amended.
In California where the initiative clause allows amendments but not revisions
to the constitution just like in our Constitution, courts have developed a twopart test: the quantitative test and the qualitative test. The quantitative test
asks whether the proposed change is "so extensive in its provisions as to
change directly the 'substantial entirety' of the constitution by the deletion or
alteration of numerous existing provisions."36 The court examines only the
number of provisions affected and does not consider the degree of the
change.

The qualitative test inquires into the qualitative effects of the proposed
change in the constitution. The main inquiry is whether the change will
"accomplish such far reaching changes in the nature of our basic
governmental plan as to amount to a revision." 37 Whether there is an
alteration in the structure of government is a proper subject of inquiry. Thus,
"a change in the nature of [the] basic governmental plan" includes "change
in its fundamental framework or the fundamental powers of its Branches."38 A
change in the nature of the basic governmental plan also includes changes
that "jeopardize the traditional form of government and the system of check
and balances."39
Under both the quantitative and qualitative tests, the Lambino Group's
initiative is a revision and not merely an amendment. Quantitatively, the
Lambino Group's proposed changes overhaul two articles - Article VI on the
Legislature and Article VII on the Executive - affecting a total of 105
provisions in the entire Constitution.40Qualitatively, the proposed changes
alter substantially the basic plan of government, from presidential to
parliamentary, and from a bicameral to a unicameral legislature.
A change in the structure of government is a revision of the Constitution, as
when the three great co-equal branches of government in the present
Constitution are reduced into two. This alters the separation of powers in
the Constitution. A shift from the present Bicameral-Presidential system to
a Unicameral-Parliamentary system is a revision of the Constitution. Merging
the legislative and executive branches is a radical change in the structure of
government.
The abolition alone of the Office of the President as the locus of Executive
Power alters the separation of powers and thus constitutes a revision of the
Constitution. Likewise, the abolition alone of one chamber of Congress alters
the system of checks-and-balances within the legislature and constitutes a
revision of the Constitution.
By any legal test and under any jurisdiction, a shift from a BicameralPresidential to a Unicameral-Parliamentary system, involving the abolition of
the Office of the President and the abolition of one chamber of Congress, is
beyond doubt a revision, not a mere amendment. On the face alone of the
Lambino Group's proposed changes, it is readily apparent that the changes
will radically alter the framework of government as set forth in the
Constitution. Father Joaquin Bernas, S.J., a leading member of the
Constitutional Commission, writes:

An amendment envisages an alteration of one or a few specific and

separable provisions. The guiding original intention of an amendment is to
improve specific parts or to add new provisions deemed necessary to meet
new conditions or to suppress specific portions that may have become
obsolete or that are judged to be dangerous. In revision, however, the
guiding original intention and plan contemplates a re-examination of the
entire document, or of provisions of the document which have over-all
implications for the entire document, to determine how and to what extent
they should be altered. Thus, for instance a switch from the presidential
system to a parliamentary system would be a revision because of its
over-all impact on the entire constitutional structure. So would a
switch from a bicameral system to a unicameral system be because of
its effect on other important provisions of the Constitution.41 (Emphasis
supplied)
In Adams v. Gunter,42 an initiative petition proposed the amendment of the
Florida State constitution to shift from a bicameral to a unicameral
legislature. The issue turned on whether the initiative "was defective and
unauthorized where [the] proposed amendment would x x x affect several
other provisions of [the] Constitution." The Supreme Court of Florida, striking
down the initiative as outside the scope of the initiative clause, ruled as
follows:
The proposal here to amend Section 1 of Article III of the 1968
Constitution to provide for a Unicameral Legislature affects not
only many other provisions of the Constitution but provides
for a change in the form of the legislative branch of
government, which has been in existence in the United States
Congress and in all of the states of the nation, except one, since
the earliest days. It would be difficult to visualize a more
revolutionary change. The concept of a House and a Senate is
basic in the American form of government. It would not only
radically change the whole pattern of government in this state
and tear apart the whole fabric of the Constitution, but would
even affect the physical facilities necessary to carry on
government.
xxxx
We conclude with the observation that if such proposed
amendment were adopted by the people at the General Election
and if the Legislature at its next session should fail to submit further
amendments to revise and clarify the numerous inconsistencies

and conflicts which would result, or if after submission of

appropriate amendments the people should refuse to adopt them,
simple chaos would prevail in the government of this State. The
same result would obtain from an amendment, for instance, of
Section 1 of Article V, to provide for only a Supreme Court and
Circuit Courts-and there could be other examples too numerous to
detail. These examples point unerringly to the answer.
The purpose of the long and arduous work of the hundreds of men
and women and many sessions of the Legislature in bringing about
the Constitution of 1968 was to eliminate inconsistencies and
conflicts and to give the State a workable, accordant, homogenous
and up-to-date document. All of this could disappear very quickly if
we were to hold that it could be amended in the manner proposed
in the initiative petition here.43(Emphasis supplied)
The rationale of the Adams decision applies with greater force to the
present petition. The Lambino Group's initiative not only seeks a shift from a
bicameral to a unicameral legislature, it also seeks to merge the executive
and legislative departments. The initiative in Adams did not even touch the
executive department.
In Adams, the Supreme Court of Florida enumerated 18 sections of the
Florida Constitution that would be affected by the shift from a bicameral to a
unicameral legislature. In the Lambino Group's present initiative, no less
than 105 provisions of the Constitution would be affected based on the
count of Associate Justice Romeo J. Callejo, Sr.44 There is no doubt that the
Lambino Group's present initiative seeks far more radical changes in the
structure of government than the initiative in Adams.
The Lambino Group theorizes that the difference between "amendment" and
"revision" is only one of procedure, not of substance. The Lambino Group
posits that when a deliberative body drafts and proposes changes to the
Constitution, substantive changes are called "revisions" because members
of the deliberative body work full-time on the changes. However, the
same substantive changes, when proposed through an initiative, are called
"amendments" because the changes are made by ordinary people who
do not make an "occupation, profession, or vocation" out of such
endeavor.
Thus, the Lambino Group makes the following exposition of their theory in
their Memorandum:

99. With this distinction in mind, we note that the constitutional

provisions expressly provide for both "amendment" and "revision"
when it speaks of legislators and constitutional delegates, while the
same provisions expressly provide only for "amendment" when it
speaks of the people. It would seem that the apparent distinction is
based on the actual experience of the people, that on one hand the
common people in general are not expected to work full-time on the
matter of correcting the constitution because that is not their
occupation, profession or vocation; while on the other hand, the
legislators and constitutional convention delegates are expected to
work full-time on the same matter because that is their occupation,
profession or vocation. Thus, the difference between the words
"revision" and "amendment" pertain only to the process or
procedure of coming up with the corrections, for purposes of
interpreting the constitutional provisions.
100. Stated otherwise, the difference between "amendment"
and "revision" cannot reasonably be in the substance or
extent of the correction. x x x x (Underlining in the original;
boldfacing supplied)
The Lambino Group in effect argues that if Congress or a constitutional
convention had drafted the same proposed changes that the Lambino Group
wrote in the present initiative, the changes would constitute a revision of the
Constitution. Thus, the Lambino Group concedes that the proposed
changes in the present initiative constitute a revision if Congress or a
constitutional convention had drafted the changes. However, since the
Lambino Group as private individuals drafted the proposed changes, the
changes are merely amendments to the Constitution. The Lambino Group
trivializes the serious matter of changing the fundamental law of the land.
The express intent of the framers and the plain language of the
Constitution contradict the Lambino Group's theory. Where the intent of the
framers and the language of the Constitution are clear and plainly stated,
courts do not deviate from such categorical intent and language. 45 Any
theory espousing a construction contrary to such intent and language
deserves scant consideration. More so, if such theory wreaks havoc by
creating inconsistencies in the form of government established in the
Constitution. Such a theory, devoid of any jurisprudential mooring and
inviting inconsistencies in the Constitution, only exposes the flimsiness of the
Lambino Group's position. Any theory advocating that a proposed change
involving a radical structural change in government does not constitute a
revision justly deserves rejection.

The Lambino Group simply recycles a theory that initiative proponents in

American jurisdictions have attempted to advance without any success.
In Lowe v. Keisling,46 the Supreme Court of Oregon rejected this theory,
thus:
Mabon argues that Article XVII, section 2, does not apply to
changes to the constitution proposed by initiative. His theory is
that Article XVII, section 2 merely provides a procedure by
which the legislature can propose a revision of the
constitution, but it does not affect proposed revisions initiated
by the people.
Plaintiffs argue that the proposed ballot measure constitutes a
wholesale change to the constitution that cannot be enacted
through the initiative process. They assert that the distinction
between amendment and revision is determined by reviewing the
scope and subject matter of the proposed enactment, and that
revisions are not limited to "a formal overhauling of the
constitution." They argue that this ballot measure proposes far
reaching changes outside the lines of the original instrument,
including profound impacts on existing fundamental rights and
radical restructuring of the government's relationship with a defined
group of citizens. Plaintiffs assert that, because the proposed ballot
measure "will refashion the most basic principles of Oregon
constitutional law," the trial court correctly held that it violated Article
XVII, section 2, and cannot appear on the ballot without the prior
approval of the legislature.
We first address Mabon's argument that Article XVII, section 2(1),
does not prohibit revisions instituted by initiative. In Holmes v.
Appling, x x x, the Supreme Court concluded that a revision of the
constitution may not be accomplished by initiative, because of the
provisions of Article XVII, section 2. After reviewing Article XVII,
section1, relating to proposed amendments, the court said:
"From the foregoing it appears that Article IV, Section 1, authorizes
the use of the initiative as a means of amending the Oregon
Constitution, but it contains no similar sanction for its use as a
means of revising the constitution." x x x x
It then reviewed Article XVII, section 2, relating to revisions, and
said: "It is the only section of the constitution which provides the
means for constitutional revision and it excludes the idea that an

individual, through the initiative, may place such a measure before

the electorate." x x x x
Accordingly, we reject Mabon's argument that Article XVII,
section 2, does not apply to constitutional revisions proposed
by initiative. (Emphasis supplied)
Similarly, this Court must reject the Lambino Group's theory which negates
the express intent of the framers and the plain language of the Constitution.
We can visualize amendments and revisions as a spectrum, at one end
green for amendments and at the other end red for revisions. Towards the
middle of the spectrum, colors fuse and difficulties arise in determining
whether there is an amendment or revision. The present initiative is
indisputably located at the far end of the red spectrum where revision
begins. The present initiative seeks a radical overhaul of the existing
separation of powers among the three co-equal departments of government,
requiring far-reaching amendments in several sections and articles of the
Constitution.
Where the proposed change applies only to a specific provision of the
Constitution without affecting any other section or article, the change may
generally be considered an amendment and not a revision. For example, a
change reducing the voting age from 18 years to 15 years 47 is an
amendment and not a revision. Similarly, a change reducing Filipino
ownership of mass media companies from 100 percent to 60 percent is an
amendment and not a revision.48 Also, a change requiring a college degree
as an additional qualification for election to the Presidency is an amendment
and not a revision.49
The changes in these examples do not entail any modification of sections or
articles of the Constitution other than the specific provision being amended.
These changes do not also affect the structure of government or the system
of checks-and-balances among or within the three branches. These three
examples are located at the far green end of the spectrum, opposite the far
red end where the revision sought by the present petition is located.
However, there can be no fixed rule on whether a change is an amendment
or a revision. A change in a single word of one sentence of the Constitution
may be a revision and not an amendment. For example, the substitution of
the word "republican" with "monarchic" or "theocratic" in Section 1, Article
II50 of the Constitution radically overhauls the entire structure of government
and the fundamental ideological basis of the Constitution. Thus, each

specific change will have to be examined case-by-case, depending on how it

affects other provisions, as well as how it affects the structure of
government, the carefully crafted system of checks-and-balances, and the
underlying ideological basis of the existing Constitution.
Since a revision of a constitution affects basic principles, or several
provisions of a constitution, a deliberative body with recorded
proceedings is best suited to undertake a revision. A revision requires
harmonizing not only several provisions, but also the altered principles with
those that remain unaltered. Thus, constitutions normally authorize
deliberative bodies like constituent assemblies or constitutional conventions
to undertake revisions. On the other hand, constitutions allow people's
initiatives, which do not have fixed and identifiable deliberative bodies or
recorded proceedings, to undertake only amendments and not revisions.
In the present initiative, the Lambino Group's proposed Section 2 of the
Transitory Provisions states:
Section 2. Upon the expiration of the term of the incumbent
President and Vice President, with the exception of Sections 1, 2,
3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall
hereby be amended and Sections 18 and 24 which shall be
deleted, all other Sections of Article VI are hereby retained and
renumbered sequentially as Section 2, ad seriatim up to 26, unless
they are inconsistent with the Parliamentary system of
government, in which case, they shall be amended to conform
with a unicameral parliamentary form of government; x x x x
(Emphasis supplied)
The basic rule in statutory construction is that if a later law is irreconcilably
inconsistent with a prior law, the later law prevails. This rule also applies to
construction of constitutions. However, the Lambino Group's draft of Section
2 of the Transitory Provisions turns on its head this rule of construction by
stating that in case of such irreconcilable inconsistency, the earlier provision
"shall be amended to conform with a unicameral parliamentary form of
government." The effect is to freeze the two irreconcilable provisions until
the earlier one "shall be amended," which requires a future separate
constitutional amendment.
Realizing the absurdity of the need for such an amendment, petitioner Atty.
Lambino readily conceded during the oral arguments that the requirement of
a future amendment is a "surplusage." In short, Atty. Lambino wants to
reinstate the rule of statutory construction so that the later provision

automatically prevails in case of irreconcilable inconsistency. However, it is

not as simple as that.
The irreconcilable inconsistency envisioned in the proposed Section 2 of the
Transitory Provisions is not between a provision in Article VI of the 1987
Constitution and a provision in the proposed changes. The inconsistency is
between a provision in Article VI of the 1987 Constitution and the
"Parliamentary system of government," and the inconsistency shall be
resolved in favor of a "unicameral parliamentary form of government."
Now, what "unicameral parliamentary form of government" do the
Lambino Group's proposed changes refer to the Bangladeshi,
Singaporean, Israeli, or New Zealand models, which are among
the few countries withunicameral parliaments? The proposed changes
could not possibly refer to the traditional and well-known parliamentary
forms of government the British, French, Spanish, German, Italian,
Canadian,
Australian,
or
Malaysian
models,
which
have
all bicameral parliaments. Did the people who signed the signature sheets
realize that they were adopting the Bangladeshi, Singaporean, Israeli, or
New Zealand parliamentary form of government?
This drives home the point that the people's initiative is not meant for
revisions of the Constitution but only for amendments. A shift from the
present Bicameral-Presidential to a Unicameral-Parliamentary system
requires harmonizing several provisions in many articles of the Constitution.
Revision of the Constitution through a people's initiative will only result in
gross absurdities in the Constitution.
In sum, there is no doubt whatsoever that the Lambino Group's initiative is a
revision and not an amendment. Thus, the present initiative is void and
unconstitutional because it violates Section 2, Article XVII of the Constitution
limiting the scope of a people's initiative to "[A]mendments to this
Constitution."
3. A Revisit of Santiago v. COMELEC is Not Necessary
The present petition warrants dismissal for failure to comply with the basic
requirements of Section 2, Article XVII of the Constitution on the conduct and
scope of a people's initiative to amend the Constitution. There is no need to
revisit this Court's ruling in Santiago declaring RA 6735 "incomplete,
inadequate or wanting in essential terms and conditions" to cover the system
of initiative to amend the Constitution. An affirmation or reversal
of Santiago will not change the outcome of the present petition. Thus, this

Court must decline to revisit Santiago which effectively ruled that RA 6735
does not comply with the requirements of the Constitution to implement the
initiative clause on amendments to the Constitution.

4. The COMELEC Did Not Commit Grave Abuse of Discretion in

Dismissing the Lambino Group's Initiative

This Court must avoid revisiting a ruling involving the constitutionality of a

statute if the case before the Court can be resolved on some other grounds.
Such avoidance is a logical consequence of the well-settled doctrine that
courts will not pass upon the constitutionality of a statute if the case can be
resolved on some other grounds.51

In dismissing the Lambino Group's initiative petition, the COMELEC en banc

merely followed this Court's ruling inSantiago and People's Initiative for
Reform, Modernization and Action (PIRMA) v. COMELEC.52 For following
this Court's ruling, no grave abuse of discretion is attributable to the
COMELEC. On this ground alone, the present petition warrants outright
dismissal. Thus, this Court should reiterate its unanimous ruling in PIRMA:

Nevertheless, even assuming that RA 6735 is valid to implement the

constitutional provision on initiatives to amend the Constitution, this will not
change the result here because the present petition violates Section 2,
Article XVII of the Constitution. To be a valid initiative, the present initiative
must first comply with Section 2, Article XVII of the Constitution even before
complying with RA 6735.

The Court ruled, first, by a unanimous vote, that no grave abuse of

discretion could be attributed to the public respondent COMELEC
in dismissing the petition filed by PIRMA therein, it appearing that it
only complied with the dispositions in the Decisions of this Court in
G.R. No. 127325, promulgated on March 19, 1997, and its
Resolution of June 10, 1997.

Even then, the present initiative violates Section 5(b) of RA 6735 which
requires that the "petition for an initiative on the 1987 Constitution must have
at least twelve per centum (12%) of the total number of registered voters as
signatories." Section 5(b) of RA 6735 requires that the people must sign
the "petition x x x as signatories."
The 6.3 million signatories did not sign the petition of 25 August 2006 or the
amended petition of 30 August 2006 filed with the COMELEC. Only Atty.
Lambino, Atty. Demosthenes B. Donato, and Atty. Alberto C. Agra
signed the petition and amended petition as counsels for "Raul L.
Lambino and Erico B. Aumentado, Petitioners." In the COMELEC, the
Lambino Group, claiming to act "together with" the 6.3 million signatories,
merely attached the signature sheets to the petition and amended petition.
Thus, the petition and amended petition filed with the COMELEC did not
even comply with the basic requirement of RA 6735 that the Lambino Group
claims as valid.
The Lambino Group's logrolling initiative also violates Section 10(a) of RA
6735 stating, "No petition embracing more than one (1) subject shall be
submitted to the electorate; x x x." The proposed Section 4(4) of the
Transitory Provisions, mandating the interim Parliament to propose further
amendments or revisions to the Constitution, is a subject matter totally
unrelated to the shift in the form of government. Since the present initiative
embraces more than one subject matter, RA 6735 prohibits submission of
the initiative petition to the electorate. Thus, even if RA 6735 is valid, the
Lambino Group's initiative will still fail.

5. Conclusion
The Constitution, as the fundamental law of the land, deserves the utmost
respect and obedience of all the citizens of this nation. No one can trivialize
the Constitution by cavalierly amending or revising it in blatant violation of
the clearly specified modes of amendment and revision laid down in the
Constitution itself.
To allow such change in the fundamental law is to set adrift the Constitution
in unchartered waters, to be tossed and turned by every dominant political
group of the day. If this Court allows today a cavalier change in the
Constitution outside the constitutionally prescribed modes, tomorrow the
new dominant political group that comes will demand its own set of changes
in the same cavalier and unconstitutional fashion. A revolving-door
constitution does not augur well for the rule of law in this country.
An overwhelming majority 16,622,111 voters comprising 76.3 percent of
the total votes cast53 approved our Constitution in a national plebiscite
held on 11 February 1987. That approval is the unmistakable voice of the
people, the full expression of the people's sovereign will. That approval
included the prescribed modes for amending or revising the
Constitution.
No amount of signatures, not even the 6,327,952 million signatures gathered
by the Lambino Group, can change our Constitution contrary to the specific

modes that the people, in their sovereign capacity, prescribed when they
ratified the Constitution. The alternative is an extra-constitutional change,
which means subverting the people's sovereign will and discarding the
Constitution. This is one act the Court cannot and should never do. As the
ultimate guardian of the Constitution, this Court is sworn to perform its
solemn duty to defend and protect the Constitution, which embodies the real
sovereign will of the people.
Incantations of "people's voice," "people's sovereign will," or "let the people
decide" cannot override the specific modes of changing the Constitution as
prescribed in the Constitution itself. Otherwise, the Constitution the
people's fundamental covenant that provides enduring stability to our society
becomes easily susceptible to manipulative changes by political groups
gathering signatures through false promises. Then, the Constitution ceases
to be the bedrock of the nation's stability.
The Lambino Group claims that their initiative is the "people's voice."
However, the Lambino Group unabashedly states in ULAP Resolution No.
2006-02, in the verification of their petition with the COMELEC, that "ULAP
maintains its unqualified support to the agenda of Her Excellency
President Gloria Macapagal-Arroyo for constitutional reforms." The Lambino
Group thus admits that their "people's" initiative is an "unqualified support to
the agenda" of the incumbent President to change the Constitution. This
forewarns the Court to be wary of incantations of "people's voice" or
"sovereign will" in the present initiative.
This Court cannot betray its primordial duty to defend and protect the
Constitution. The Constitution, which embodies the people's sovereign will,
is the bible of this Court. This Court exists to defend and protect the
Constitution. To allow this constitutionally infirm initiative, propelled by
deceptively gathered signatures, to alter basic principles in the Constitution
is to allow a desecration of the Constitution. To allow such alteration and
desecration is to lose this Court's raison d'etre.
WHEREFORE, we DISMISS the petition in G.R. No. 174153.
SO ORDERED.

PROF. MERLIN M. MAGALLONA, G.R No. 187167

AKBAYAN PARTY-LIST REP. RISA

KAY KALAW, MARY ANN JOY LEE,

HONTIVEROS, PROF. HARRY C. Present:

MARIA LUISA MANALAYSAY,

ROQUE, JR., AND UNIVERSITY OF

MIGUEL RAFAEL MUSNGI,

THE PHILIPPINES COLLEGE OF CORONA, C.J.,

MICHAEL OCAMPO, JAKLYN HANNA

LAW STUDENTS, ALITHEA CARPIO,

PINEDA, WILLIAM RAGAMAT,

BARBARA ACAS, VOLTAIRE VELASCO, JR.,

MARICAR RAMOS, ENRIK FORT

ALFERES, CZARINA MAY LEONARDO-DE CASTRO,

REVILLAS, JAMES MARK TERRY

ALTEZ, FRANCIS ALVIN ASILO, BRION,

RIDON, JOHANN FRANTZ RIVERA IV,

SHERYL BALOT, RUBY AMOR PERALTA,

CHRISTIAN RIVERO, DIANNE MARIE

BARRACA, JOSE JAVIER BAUTISTA, BERSAMIN,

ROA, NICHOLAS SANTIZO, MELISSA

ROMINA BERNARDO, VALERIE DEL CASTILLO,

CHRISTINA SANTOS, CRISTINE MAE

PAGASA BUENAVENTURA, EDAN ABAD,

TABING, VANESSA ANNE TORNO,

MARRI CAETE, VANN ALLEN VILLARAMA, JR.,

MARIA ESTER VANGUARDIA, and

DELA CRUZ, RENE DELORINO, PEREZ,

MARCELINO VELOSO III,

PAULYN MAY DUMAN, SHARON MENDOZA, and

Petitioners,

ESCOTO, RODRIGO FAJARDO III, SERENO, JJ.

GIRLIE FERRER, RAOULLE OSEN
FERRER, CARLA REGINA GREPO,
ANNA MARIE CECILIA GO, IRISH

- versus HON. EDUARDO ERMITA, IN HIS

CAPACITY AS EXECUTIVE
SECRETARY, HON. ALBERTO

ROMULO, IN HIS CAPACITY AS

SECRETARY OF THE DEPARTMENT

DECISION

OF FOREIGN AFFAIRS, HON.

ROLANDO ANDAYA, IN HIS CAPACITY
AS SECRETARY OF THE DEPARTMENT

CARPIO, J.:

OF BUDGET AND MANAGEMENT,

HON. DIONY VENTURA, IN HIS
CAPACITY AS ADMINISTRATOR OF

The Case

THE NATIONAL MAPPING &

RESOURCE INFORMATION
AUTHORITY, and HON. HILARIO

This original action for the writs of certiorari and prohibition assails the
constitutionality of Republic Act No. 95221 (RA 9522) adjusting the countrys

DAVIDE, JR., IN HIS CAPACITY AS

archipelagic baselines and classifying the baseline regime of nearby

REPRESENTATIVE OF THE

territories.

PERMANENT MISSION OF THE

REPUBLIC OF THE PHILIPPINES Promulgated:
TO THE UNITED NATIONS,
Respondents. July 16, 2011
x -----------------------------------------------------------------------------------------x

The Antecedents

In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating
the maritime baselines of the Philippines as an archipelagic State. 3 This law
followed the framing of the Convention on the Territorial Sea and the

Petitioners, professors of law, law students and a legislator, in their

Contiguous Zone in 1958 (UNCLOS I),4 codifying, among others, the

respective capacities as citizens, taxpayers or x x x legislators,9 as the case

sovereign right of States parties over their territorial sea, the breadth of

may be, assail the constitutionality of RA 9522 on two principal grounds,

which, however, was left undetermined. Attempts to fill this void during the

namely: (1) RA 9522 reduces Philippine maritime territory, and logically, the

second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile.

reach of the Philippine states sovereign power, in violation of Article 1 of the

Thus, domestically, RA 3046 remained unchanged for nearly five decades,

1987 Constitution,10 embodying the terms of the Treaty of Paris11 and

save for legislation passed in 1968 (Republic Act No. 5446 [RA 5446])

ancillary treaties,12 and (2) RA 9522 opens the countrys waters landward of

correcting typographical errors and reserving the drawing of baselines

the baselines to maritime passage by all vessels and aircrafts, undermining

around Sabah in North Borneo.

Philippine sovereignty and national security, contravening the countrys

nuclear-free policy, and damaging marine resources, in violation of relevant
constitutional provisions.13

In March 2009, Congress amended RA 3046 by enacting RA 9522, the

statute now under scrutiny. The change was prompted by the need to make
RA 3046 compliant with the terms of the United Nations Convention on the

In addition, petitioners contend that RA 9522s treatment of the KIG

Law of the Sea (UNCLOS III),5 which the Philippines ratified on 27 February

as regime of islands not only results in the loss of a large maritime area but

1984.6 Among others, UNCLOS III prescribes the water-land ratio, length,

also prejudices the livelihood of subsistence fishermen. 14 To buttress their

and contour of baselines of archipelagic States like the Philippines 7 and sets

argument of territorial diminution, petitioners facially attack RA 9522 for what

the deadline for the filing of application for the extended continental

it excluded and included its failure to reference either the Treaty of Paris or

shelf.8 Complying with these requirements, RA 9522 shortened one baseline,

Sabah and its use of UNCLOS IIIs framework of regime of islands to

optimized the location of some basepoints around the Philippine archipelago

determine the maritime zones of the KIG and the Scarborough Shoal.

and classified adjacent territories, namely, the Kalayaan Island Group (KIG)
and the Scarborough Shoal, as regimes of islands whose islands generate
their own applicable maritime zones.

Commenting on the petition, respondent officials raised threshold issues

The petition raises the following issues:

questioning (1) the petitions compliance with the case or controversy

requirement for judicial review grounded on petitioners alleged lack of locus
standi and (2) the propriety of the writs of certiorari and prohibition to assail

1.

Preliminarily

1.

Whether petitioners possess locus standi to bring this suit; and

2.

Whether the writs of certiorari and prohibition are the proper

the constitutionality of RA 9522. On the merits, respondents defended RA

9522 as the countrys compliance with the terms of UNCLOS III, preserving
Philippine territory over the KIG or Scarborough Shoal. Respondents add
that RA 9522 does not undermine the countrys security, environment and
economic interests or relinquish the Philippines claim over Sabah.

remedies to assail the constitutionality of RA 9522.

Respondents also question the normative force, under international

2.

On the merits, whether RA 9522 is unconstitutional.

law, of petitioners assertion that what Spain ceded to the United States
under the Treaty of Paris were the islands and all the waters found within the
boundaries of the rectangular area drawn under the Treaty of Paris.

The Ruling of the Court

We left unacted petitioners prayer for an injunctive writ.

On the threshold issues, we hold that (1) petitioners possess locus standi to
bring this suit as citizens and (2) the writs of certiorari and prohibition are
proper remedies to test the constitutionality of RA 9522. On the merits, we

The Issues

find no basis to declare RA 9522 unconstitutional.

On the Threshold Issues

In praying for the dismissal of the petition on preliminary grounds,

respondents seek a strict observance of the offices of the writs of certiorari

Petitioners Possess Locus

and prohibition, noting that the writs cannot issue absent any showing of
Standi as Citizens

grave abuse of discretion in the exercise of judicial, quasi-judicial or

ministerial powers on the part of respondents and resulting prejudice on the
part of petitioners.18

Petitioners

themselves

undermine their

assertion

of locus standi as

legislators and taxpayers because the petition alleges neither infringement of

legislative prerogative15 nor misuse of public funds,16 occasioned by the
passage and implementation of RA 9522. Nonetheless, we recognize
petitioners locus standi as citizens with constitutionally sufficient interest in
the resolution of the merits of the case which undoubtedly raises issues of
national significance necessitating urgent resolution. Indeed, owing to the
peculiar nature of RA 9522, it is understandably difficult to find other litigants
possessing a more direct and specific interest to bring the suit, thus
satisfying one of the requirements for granting citizenship standing.17

Respondents submission holds true in ordinary civil proceedings. When this

Court exercises its constitutional power of judicial review, however, we have,
by tradition, viewed the writs of certiorari and prohibition as proper remedial
vehicles to test the constitutionality of statutes,19 and indeed, of acts of other
branches of government.20 Issues of constitutional import are sometimes
crafted out of statutes which, while having no bearing on the personal
interests of the petitioners, carry such relevance in the life of this nation that
the Court inevitably finds itself constrained to take cognizance of the case
and pass upon the issues raised, non-compliance with the letter of
procedural rules notwithstanding. The statute sought to be reviewed here is

The Writs of Certiorari and Prohibition

Are Proper Remedies to Test

one such law.

RA 9522 is Not Unconstitutional

the Constitutionality of Statutes

RA 9522 is a Statutory Tool

to Demarcate the Countrys

Maritime Zones and Continental
Shelf Under UNCLOS III, not to

UNCLOS III has nothing to do with the acquisition (or loss) of

territory. It is a multilateral treaty regulating, among others, sea-use rights
over maritime zones (i.e., the territorial waters [12 nautical miles from the
baselines], contiguous zone [24 nautical miles from the baselines], exclusive

Delineate Philippine Territory

economic zone [200 nautical miles from the baselines]), and continental
shelves that UNCLOS III delimits.23 UNCLOS III was the culmination of
decades-long negotiations among United Nations members to codify norms
regulating the conduct of States in the worlds oceans and submarine areas,

Petitioners submit that RA 9522 dismembers a large portion of the national

recognizing coastal and archipelagic States graduated authority over a

territory21 because it discards the pre-UNCLOS III demarcation of Philippine

limited span of waters and submarine lands along their coasts.

territory under the Treaty of Paris and related treaties, successively encoded
in the definition of national territory under the 1935, 1973 and 1987
Constitutions. Petitioners theorize that this constitutional definition trumps
any treaty or statutory provision denying the Philippines sovereign control
over waters, beyond the territorial sea recognized at the time of the Treaty of
Paris, that Spain supposedly ceded to the United States. Petitioners argue
that from the Treaty of Paris technical description, Philippine sovereignty
over territorial waters extends hundreds of nautical miles around the

On the other hand, baselines laws such as RA 9522 are enacted by

UNCLOS III States parties to mark-out specific basepoints along their coasts
from which baselines are drawn, either straight or contoured, to serve as
geographic starting points to measure the breadth of the maritime zones and
continental shelf. Article 48 of UNCLOS III on archipelagic States like ours
could not be any clearer:

Philippine archipelago, embracing the rectangular area delineated in the

Treaty of Paris.22

Petitioners theory fails to persuade us.

Article 48. Measurement of the breadth of the

territorial sea, the contiguous zone, the exclusive
economic zone and the continental shelf. The breadth of
the territorial sea, the contiguous zone, the exclusive
economic zone and the continental shelf shall be
measured from archipelagic baselines drawn in
accordance with article 47. (Emphasis supplied)

Thus, baselines laws are nothing but statutory mechanisms for

Under traditional international law typology, States acquire (or conversely,

UNCLOS III States parties to delimit with precision the extent of their

lose) territory through occupation, accretion, cession and prescription,25 not

maritime zones and continental shelves. In turn, this gives notice to the rest

by executing multilateral treaties on the regulations of sea-use rights or

of the international community of the scope of the maritime space and

enacting statutes to comply with the treatys terms to delimit maritime zones

submarine areas within which States parties exercise treaty-based rights,

and continental shelves. Territorial claims to land features are outside

namely, the exercise of sovereignty over territorial waters (Article 2), the

UNCLOS III, and are instead governed by the rules on general international

jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the

law.26

contiguous zone (Article 33), and the right to exploit the living and non-living
resources in the exclusive economic zone (Article 56) and continental shelf
(Article 77).

RA 9522s Use of the Framework

of Regime of Islands to Determine the
Maritime Zones of the KIG and the

Even under petitioners theory that the Philippine territory embraces

Scarborough Shoal, not Inconsistent

the islands and all the waters within the rectangular area delimited in the
Treaty of Paris, the baselines of the Philippines would still have to be drawn
in accordance with RA 9522 because this is the only way to draw the

with the Philippines Claim of Sovereignty

Over these Areas

baselines in conformity with UNCLOS III. The baselines cannot be drawn

from the boundaries or other portions of the rectangular area delineated in
the Treaty of Paris, but from the outermost islands and drying reefs of the
archipelago.24

Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands
framework to draw the baselines, and to measure the breadth of the
applicable maritime zones of the KIG, weakens our territorial claim over that

UNCLOS III and its ancillary baselines laws play no role in the

area.27 Petitioners add that the KIGs (and Scarborough Shoals) exclusion

acquisition, enlargement or, as petitioners claim, diminution of territory.

from the Philippine archipelagic baselines results in the loss of about 15,000
square nautical miles of territorial waters, prejudicing the livelihood of

subsistence fishermen.28 A comparison of the configuration of the baselines

internal waters, territorial sea and exclusive economic zone) by 145,216

drawn under RA 3046 and RA 9522 and the extent of maritime space

square nautical miles, as shown in the table below:29

encompassed by each law, coupled with a reading of the text of RA 9522

and its congressional deliberations, vis--vis the Philippines obligations under
UNCLOS III, belie this view.

The configuration of the baselines drawn under RA 3046 and RA 9522

Extent of maritime area using RA

Extent of maritime area

3046, as amended, taking into

using RA 9522, taking into

account

account UNCLOS III (in

the

Treaty

of

Paris

delimitation (in square nautical

shows that RA 9522 merely followed the basepoints mapped by RA 3046,

square nautical miles)

miles)

save for at least nine basepoints that RA 9522 skipped to optimize the
location of basepoints and adjust the length of one baseline (and thus
comply with UNCLOS IIIs limitation on the maximum length of baselines).

Internal

or

Under RA 3046, as under RA 9522, the KIG and the Scarborough Shoal lie
outside of the baselines drawn around the Philippine archipelago. This
undeniable cartographic fact takes the wind out of petitioners argument

archipelagic
waters

166,858

171,435

274,136

32,106

branding RA 9522 as a statutory renunciation of the Philippines claim over

the KIG, assuming that baselines are relevant for this purpose.

Territorial Sea
Petitioners assertion of loss of about 15,000 square nautical miles of
territorial waters under RA 9522 is similarly unfounded both in fact and law.
On

the

contrary,

RA

9522,

by

optimizing

the

location

of

basepoints, increased the Philippines total maritime space (covering its

Exclusive

Economic

382,669

Zone

TOTAL

440,994

586,210

Thus, as the map below shows, the reach of the exclusive economic zone
drawn under RA 9522 even extends way beyond the waters covered by the
rectangular demarcation under the Treaty of Paris. Of course, where there
are overlapping exclusive economic zones of opposite or adjacent States,
there will have to be a delineation of maritime boundaries in accordance with
UNCLOS III.30

requires that the length of the baselines shall not exceed 100 nautical miles,
save for three per cent (3%) of the total number of baselines which can
Further, petitioners argument that the KIG now lies outside Philippine

reach up to 125 nautical miles.31

territory because the baselines that RA 9522 draws do not enclose the KIG
is negated by RA 9522 itself. Section 2 of the law commits to text the
Philippines continued claim of sovereignty and jurisdiction over the KIG and
the Scarborough Shoal:

Although the Philippines has consistently claimed sovereignty over

32

the KIG and the Scarborough Shoal for several decades, these outlying
SEC. 2. The baselines in the following areas over
which the Philippines likewise exercises sovereignty
and jurisdiction shall be determined as Regime of
Islands under the Republic of the Philippines consistent
with Article 121 of the United Nations Convention on the
Law of the Sea (UNCLOS):

areas are located at an appreciable distance from the nearest shoreline of

the Philippine archipelago,33 such that any straight baseline loped around
them from the nearest basepoint will inevitably depart to an appreciable
extent from the general configuration of the archipelago.

a) The Kalayaan Island Group as constituted

under Presidential Decree No. 1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal.
(Emphasis supplied)

The principal sponsor of RA 9522 in the Senate, Senator Miriam

Defensor-Santiago, took pains to emphasize the foregoing during the Senate
deliberations:

Had Congress in RA 9522 enclosed the KIG and the Scarborough

Shoal as part of the Philippine archipelago, adverse legal effects would have
ensued. The Philippines would have committed a breach of two provisions of
UNCLOS III. First, Article 47 (3) of UNCLOS III requires that [t]he drawing of
such baselines shall not depart to any appreciable extent from the general
configuration of the archipelago. Second, Article 47 (2) of UNCLOS III

What we call the Kalayaan Island Group or what

the rest of the world call[] the Spratlys and the
Scarborough Shoal are outside our archipelagic baseline
because if we put them inside our baselines we might be
accused of violating the provision of international law
which states: The drawing of such baseline shall not
depart to any appreciable extent from the general
configuration of the archipelago. So sa loob ng ating
baseline, dapat magkalapit ang mga islands. Dahil malayo
ang Scarborough Shoal, hindi natin masasabing malapit
sila sa atin although we are still allowed by international
law to claim them as our own.

This is called contested islands outside our configuration.

We see that our archipelago is defined by the orange line
which [we] call[] archipelagic baseline. Ngayon, tingnan
ninyo ang maliit na circle doon sa itaas, that is
Scarborough Shoal, itong malaking circle sa ibaba, that is
Kalayaan Group or the Spratlys. Malayo na sila sa ating
archipelago kaya kung ilihis pa natin ang dating
archipelagic baselines para lamang masama itong
dalawang circles, hindi na sila magkalapit at baka hindi na
tatanggapin ng United Nations because of the rule that it
should follow the natural configuration of the
archipelago.34 (Emphasis supplied)

baselines enclosing any archipelago may exceed that

length, up to a maximum length of 125 nautical miles.
2.

The selection of basepoints is not optimal. At least 9

basepoints can be skipped or deleted from the baselines
system. This will enclose an additional 2,195 nautical
miles of water.

3.

Finally, the basepoints were drawn from maps existing in

1968, and not established by geodetic survey methods.
Accordingly, some of the points, particularly along the west
coasts of Luzon down to Palawan were later found to be
located either inland or on water, not on low-water line and
drying reefs as prescribed by Article 47.35

Hence, far from surrendering the Philippines claim over the KIG
Similarly, the length of one baseline that RA 3046 drew exceeded
UNCLOS IIIs limits. The need to shorten this baseline, and in addition, to
optimize the location of basepoints using current maps, became imperative
as discussed by respondents:

and the Scarborough Shoal, Congress decision to classify the KIG and the
Scarborough Shoal as Regime[s] of Islands under the Republic of the
Philippines consistent with Article 12136 of UNCLOS III manifests the
Philippine

States

responsible

observance

of

its pacta

sunt

servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III,
any naturally formed area of land, surrounded by water, which is above
[T]he amendment of the baselines law was
necessary to enable the Philippines to draw the outer
limits of its maritime zones including the extended
continental shelf in the manner provided by Article 47 of
[UNCLOS III]. As defined by R.A. 3046, as amended by
R.A. 5446, the baselines suffer from some technical
deficiencies, to wit:
1.

The length of the baseline across Moro Gulf (from Middle

of 3 Rock Awash to Tongquil Point) is 140.06 nautical
miles x x x. This exceeds the maximum length allowed
under Article 47(2) of the [UNCLOS III], which states that
The length of such baselines shall not exceed 100 nautical
miles, except that up to 3 per cent of the total number of

water at high tide, such as portions of the KIG, qualifies under the category
of regime of islands, whose islands generate their own applicable maritime
zones.37

Delineation of Internal Waters

Statutory Claim Over Sabah under

RA 5446 Retained

As their final argument against the validity of RA 9522, petitioners contend

that the law unconstitutionally converts internal waters into archipelagic
waters, hence subjecting these waters to the right of innocent and sea lanes
passage under UNCLOS III, including overflight. Petitioners extrapolate that
these passage rights indubitably expose Philippine internal waters to nuclear
and maritime pollution hazards, in violation of the Constitution.38

Petitioners argument for the invalidity of RA 9522 for its failure to textualize
the Philippines claim over Sabah in North Borneo is also untenable. Section
2 of RA 5446, which RA 9522 did not repeal, keeps open the door for
drawing the baselines of Sabah:

Whether referred to as Philippine internal waters under Article I of the

Constitution39 or as archipelagic waters under UNCLOS III (Article 49 [1]),
the Philippines exercises sovereignty over the body of water lying landward

Section 2. The definition of the baselines of the

territorial sea of the Philippine Archipelago as provided in
this Act is without prejudice to the delineation of the
baselines of the territorial sea around the territory of
Sabah, situated in North Borneo, over which the
Republic of the Philippines has acquired dominion
and sovereignty. (Emphasis supplied)

of the baselines, including the air space over it and the submarine areas
underneath. UNCLOS III affirms this:

Article 49. Legal status of archipelagic waters, of

the air space over archipelagic waters and of their bed
and subsoil.
1.

UNCLOS III and RA 9522 not

Incompatible with the Constitutions

The sovereignty of an archipelagic

State extends to the waters enclosed
by the archipelagic baselines drawn in
accordance with article 47, described as
archipelagic waters, regardless of their
depth or distance from the coast.

2.

This sovereignty extends to the air

space over the archipelagic waters,
as well as to their bed and subsoil,
and the resources contained therein.

xxxx

the territorial sea or archipelagic waters, subject to the treatys limitations and
conditions for their exercise.42 Significantly, the right of innocent passage is a
customary international law,43 thus automatically incorporated in the corpus
of Philippine law.44 No modern State can validly invoke its sovereignty to

4. The regime of archipelagic sea lanes passage

established in this Part shall not in other respects affect
the status of the archipelagic waters, including the sea
lanes, or the exercise by the archipelagic State of its
sovereignty over such waters and their air space, bed
and subsoil, and the resources contained therein.
(Emphasis supplied)

absolutely forbid innocent passage that is exercised in accordance with

customary international law without risking retaliatory measures from the
international community.
The fact that for archipelagic States, their archipelagic waters are
subject to both the right of innocent passage and sea lanes passage 45 does
not place them in lesser footing vis--viscontinental coastal States which are

The fact of sovereignty, however, does not preclude the operation of

subject, in their territorial sea, to the right of innocent passage and the right

municipal and international law norms subjecting the territorial sea or

of transit passage through international straits. The imposition of these

archipelagic waters to necessary, if not marginal, burdens in the interest of

passage rights through archipelagic waters under UNCLOS III was a

maintaining unimpeded, expeditious international navigation, consistent with

concession by archipelagic States, in exchange for their right to claim all the

the international law principle of freedom of navigation. Thus, domestically,

waters landward of their baselines,regardless of their depth or distance from

the political branches of the Philippine government, in the competent

the coast, as archipelagic waters subject to their territorial sovereignty. More

discharge of their constitutional powers, may pass legislation designating

importantly, the recognition of archipelagic States archipelago and the

routes within the archipelagic waters to regulate innocent and sea lanes

waters enclosed by their baselines as one cohesive entity prevents the

passage.40 Indeed, bills drawing nautical highways for sea lanes passage

treatment of their islands as separate islands under UNCLOS III.46 Separate

are now pending in Congress.41

islands generate their own maritime zones, placing the waters between
islands separated by more than 24 nautical miles beyond the States
territorial sovereignty, subjecting these waters to the rights of other States
under UNCLOS III.47

In the absence of municipal legislation, international law norms,

now codified in UNCLOS III, operate to grant innocent passage rights over

Petitioners invocation of non-executory constitutional provisions in

48

UNCLOS III favors States with a long coastline like the Philippines.

Article II (Declaration of Principles and State Policies) must also fail. Our

UNCLOS III creates a sui generis maritime space the exclusive economic

present state of jurisprudence considers the provisions in Article II as mere

zone in waters previously part of the high seas. UNCLOS III grants new

legislative guides, which, absent enabling legislation, do not embody

rights to coastal States to exclusively exploit the resources found within this

judicially enforceable constitutional rights x x x. 49 Article II provisions serve

zone up to 200 nautical miles.53 UNCLOS III, however, preserves the

as guides in formulating and interpreting implementing legislation, as well as

traditional freedom of navigation of other States that attached to this zone

in interpreting executory provisions of the Constitution. Although Oposa v.

beyond the territorial sea before UNCLOS III.

50

Factoran treated the right to a healthful and balanced ecology under

Section 16 of Article II as an exception, the present petition lacks factual
basis to substantiate the claimed constitutional violation. The other
provisions petitioners cite, relating to the protection of marine wealth (Article

RA 9522 and the Philippines Maritime Zones

51

XII, Section 2, paragraph 2 ) and subsistence fishermen (Article XIII,

Section 752), are not violated by RA 9522.
Petitioners hold the view that, based on the permissive text of
UNCLOS III, Congress was not bound to pass RA 9522.54 We have looked at
In fact, the demarcation of the baselines enables the Philippines to

the relevant provision of UNCLOS III55 and we find petitioners reading

delimit its exclusive economic zone, reserving solely to the Philippines the

plausible. Nevertheless, the prerogative of choosing this option belongs to

exploitation of all living and non-living resources within such zone. Such a

Congress, not to this Court. Moreover, the luxury of choosing this option

maritime delineation binds the international community since the delineation

comes at a very steep price. Absent an UNCLOS III compliant baselines law,

is in strict observance of UNCLOS III. If the maritime delineation is contrary

an archipelagic State like the Philippines will find itself devoid of

to UNCLOS III, the international community will of course reject it and will

internationally acceptable baselines from where the breadth of its maritime

refuse to be bound by it.

zones and continental shelf is measured. This is recipe for a two-fronted

disaster: first, it sends an open invitation to the seafaring powers to freely

enter and exploit the resources in the waters and submarine areas around
our archipelago; and second, it weakens the countrys case in any
international

dispute

over

Philippine

maritime

space.

These

are

consequences Congress wisely avoided.

The enactment of UNCLOS III compliant baselines law for the

Philippine archipelago and adjacent areas, as embodied in RA 9522, allows
an internationally-recognized delimitation of the breadth of the Philippines
maritime zones and continental shelf. RA 9522 is therefore a most vital step
on the part of the Philippines in safeguarding its maritime zones, consistent
with the Constitution and our national interest.

WHEREFORE, we DISMISS the petition

DECISION
Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC
G.R. No. 206510

September 16, 2014

MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.;

MOST REV. DEOGRACIAS S. INIGUEZ, JR., Bishop-Emeritus of
Caloocan, FRANCES Q. QUIMPO, CLEMENTE G. BAUTISTA, JR.,
Kalikasan-PNE, MARIA CAROLINA P. ARAULLO, RENATO M. REYES,
JR.,
Bagong
Alyansang
Makabayan,
HON.
NERI
JAVIER
COLMENARES, Bayan Muna Partylist, ROLAND G. SIMBULAN, PH.D.,
Junk VF A Movement, TERESITA R. PEREZ, PH.D., HON. RAYMOND V.
PALATINO, Kabataan Party-list, PETER SJ. GONZALES, Pamalakaya,
GIOVANNI A. TAPANG, PH. D., Agham, ELMER C. LABOG, Kilusang
Mayo Uno, JOAN MAY E. SALVADOR, Gabriela, JOSE ENRIQUE A.
AFRICA, THERESA A. CONCEPCION, MARY JOAN A. GUAN, NESTOR
T.
BAGUINON,
PH.D.,
A.
EDSEL
F.
TUPAZ, Petitioners,
vs.
SCOTT H. SWIFT in his capacity as Commander of the US. 7th Fleet,
MARK A. RICE in his capacity as Commanding Officer of the USS
Guardian, PRESIDENT BENIGNO S. AQUINO III in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines, HON.
ALBERT F. DEL ROSARIO, Secretary, pepartment of Foreign Affair.s,
HON. PAQUITO OCHOA, JR., Executiv~.:Secretary, Office of the
President, . HON. VOLTAIRE T. GAZMIN, Secretary, Department of
National Defense, HON. RAMON JESUS P. P AJE, Secretary,
Department of Environment and Natural Resoz!rces, VICE ADMIRAL
JOSE LUIS M. ALANO, Philippine Navy Flag Officer in Command,
Armed Forces of the Philippines, ADMIRAL RODOLFO D. ISO RENA,
Commandant, Philippine Coast Guard, COMMODORE ENRICO EFREN
EVANGELISTA, Philippine Coast Guard Palawan, MAJOR GEN.
VIRGILIO 0. DOMINGO, Commandant of Armed Forces of the
Philippines Command and LT. GEN. TERRY G. ROBLING, US Marine
Corps Forces. Pacific and Balikatan 2013 Exercise CoDirector, Respondents.

VILLARAMA, JR, J.:

Before us is a petition for the issuance of a Writ of Kalikasan with prayer for
the issuance of a Temporary Environmental Protection Order (TEPO) under
Rule 7 of A.M. No. 09-6-8-SC, otherwise known as the Rules of Procedure
for Environmental Cases (Rules), involving violations of environmental laws
and regulations in relation to the grounding of the US military ship USS
Guardian over the Tubbataha Reefs.
Factual Background
The name "Tubbataha" came from the Samal (seafaring people of southern
Philippines) language which means "long reef exposed at low tide."
Tubbataha is composed of two huge coral atolls - the north atoll and the
south atoll - and the Jessie Beazley Reef, a smaller coral structure about 20
kilometers north of the atolls. The reefs of Tubbataha and Jessie Beazley
are considered part of Cagayancillo, a remote island municipality of
Palawan.1
In 1988, Tubbataha was declared a National Marine Park by virtue of
Proclamation No. 306 issued by President Corazon C. Aquino on August 11,
1988. Located in the middle of Central Sulu Sea, 150 kilometers southeast
of Puerto Princesa City, Tubbataha lies at the heart of the Coral Triangle, the
global center of marine biodiversity.
In 1993, Tubbataha was inscribed by the United Nations Educational
Scientific and Cultural Organization (UNESCO) as a World Heritage Site. It
was recognized as one of the Philippines' oldest ecosystems, containing
excellent examples of pristine reefs and a high diversity of marine life. The
97,030-hectare protected marine park is also an important habitat for
internationally threatened and endangered marine species. UNESCO cited
Tubbataha's outstanding universal value as an important and significant
natural habitat for in situ conservation of biological diversity; an example
representing significant on-going ecological and biological processes; and
an area of exceptional natural beauty and aesthetic importance.2
On April 6, 2010, Congress passed Republic Act (R.A.) No.
10067,3 otherwise known as the "Tubbataha Reefs Natural Park (TRNP) Act

of 2009" "to ensure the protection and conservation of the globally significant
economic, biological, sociocultural, educational and scientific values of the
Tubbataha Reefs into perpetuity for the enjoyment of present and future
generations." Under the "no-take" policy, entry into the waters of TRNP is
strictly regulated and many human activities are prohibited and penalized or
fined, including fishing, gathering, destroying and disturbing the resources
within the TRNP. The law likewise created the Tubbataha Protected Area
Management Board (TPAMB) which shall be the sole policy-making and
permit-granting body of the TRNP.
The USS Guardian is an Avenger-class mine countermeasures ship of the
US Navy. In December 2012, the US Embassy in the Philippines requested
diplomatic clearance for the said vessel "to enter and exit the territorial
waters of the Philippines and to arrive at the port of Subic Bay for the
purpose of routine ship replenishment, maintenance, and crew liberty." 4 On
January 6, 2013, the ship left Sasebo, Japan for Subic Bay, arriving on
January 13, 2013 after a brief stop for fuel in Okinawa, Japan.1wphi1
On January 15, 2013, the USS Guardian departed Subic Bay for its next port
of call in Makassar, Indonesia. On January 17, 2013 at 2:20 a.m. while
transiting the Sulu Sea, the ship ran aground on the northwest side of South
Shoal of the Tubbataha Reefs, about 80 miles east-southeast of Palawan.
No cine was injured in the incident, and there have been no reports of
leaking fuel or oil.
On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift,
expressed regret for the incident in a press statement.5 Likewise, US
Ambassador to the Philippines Harry K. Thomas, Jr., in a meeting at the
Department of Foreign Affairs (DFA) on February 4, "reiterated his regrets
over the grounding incident and assured Foreign Affairs Secretazy Albert F.
del Rosario that the United States will provide appropriate compensation for
damage to the reef caused by the ship." 6 By March 30, 2013, the US Navyled salvage team had finished removing the last piece of the grounded ship
from the coral reef.
On April 1 7, 2013, the above-named petitioners on their behalf and in
representation of their respective sector/organization and others, including
minors or generations yet unborn, filed the present petition agairtst Scott H.
Swift in his capacity as Commander of the US 7th Fleet, Mark A. Rice in his
capacity as Commanding Officer of the USS Guardian and Lt. Gen. Terry G.
Robling, US Marine Corps Forces, Pacific and Balikatan 2013 Exercises Co-

Director ("US respondents"); President Benigno S. Aquino III in his capacity

as Commander-in-Chief of the Armed Forces of the Philippines (AFP), DF A
Secretary Albert F. Del Rosario, Executive Secretary Paquito Ochoa, Jr.,
Secretary Voltaire T. Gazmin (Department of National Defense), Secretary
Jesus P. Paje (Department of Environment and Natural Resources), ViceAdmiral Jose Luis M. Alano (Philippine Navy Flag Officer in Command,
AFP), Admiral Rodolfo D. Isorena (Philippine Coast Guard Commandant),
Commodore Enrico Efren Evangelista (Philippine Coast Guard-Palawan),
and Major General Virgilio 0. Domingo (AFP Commandant), collectively the
"Philippine respondents."
The Petition
Petitioners claim that the grounding, salvaging and post-salvaging
operations of the USS Guardian cause and continue to cause environmental
damage of such magnitude as to affect the provinces of Palawan, Antique,
Aklan, Guimaras, Iloilo, Negros Occidental, Negros Oriental, Zamboanga del
Norte, Basilan, Sulu, and Tawi-Tawi, which events violate their constitutional
rights to a balanced and healthful ecology. They also seek a directive from
this Court for the institution of civil, administrative and criminal suits for acts
committed in violation of environmental laws and regulations in connection
with the grounding incident.
Specifically, petitioners cite the following violations committed by US
respondents under R.A. No. 10067: unauthorized entry (Section 19); nonpayment of conservation fees (Section 21 ); obstruction of law enforcement
officer (Section 30); damages to the reef (Section 20); and destroying and
disturbing resources (Section 26[g]). Furthermore, petitioners assail certain
provisions of the Visiting Forces Agreement (VFA) which they want this
Court to nullify for being unconstitutional.
The numerous reliefs sought in this case are set forth in the final prayer of
the petition, to wit: WHEREFORE, in view of the foregoing, Petitioners
respectfully pray that the Honorable Court: 1. Immediately issue upon the
filing of this petition a Temporary Environmental Protection Order (TEPO)
and/or a Writ of Kalikasan, which shall, in particular,
a. Order Respondents and any person acting on their behalf, to
cease and desist all operations over the Guardian grounding
incident;

b. Initially demarcating the metes and bounds of the damaged area

as well as an additional buffer zone;

those applicable to other States, and damages for personal injury

or death, if such had been the case;

c. Order Respondents to stop all port calls and war games under
'Balikatan' because of the absence of clear guidelines, duties, and
liability schemes for breaches of those duties, and require
Respondents to assume responsibility for prior and future
environmental damage in general, and environmental damage
under the Visiting Forces Agreement in particular.

e. Direct Respondents to cooperate in providing for the attendance

of witnesses and in the collection and production of evidence,
including seizure and delivery of objects connected with the
offenses related to the grounding of the Guardian;

d. Temporarily define and describe allowable activities of

ecotourism, diving, recreation, and limited commercial activities by
fisherfolk and indigenous communities near or around the TRNP
but away from the damaged site and an additional buffer zone;
2. After summary hearing, issue a Resolution extending the TEPO
until further orders of the Court;
3. After due proceedings, render a Decision which shall include,
without limitation:
a. Order Respondents Secretary of Foreign Affairs, following the
dispositive portion of Nicolas v. Romulo, "to forthwith negotiate with
the United States representatives for the appropriate agreement on
[environmental guidelines and environmental accountability] under
Philippine authorities as provided in Art. V[] of the VFA ... "
b. Direct Respondents and appropriate agencies to commence
administrative, civil, and criminal proceedings against erring officers
and individuals to the full extent of the law, and to make such
proceedings public;
c. Declare that Philippine authorities may exercise primary and
exclusive criminal jurisdiction over erring U.S. personnel under the
circumstances of this case;
d. Require Respondents to pay just and reasonable compensation
in the settlement of all meritorious claims for damages caused to
the Tubbataha Reef on terms and conditions no less severe than

f. Require the authorities of the Philippines and the United States to

notify each other of the disposition of all cases, wherever heard,
related to the grounding of the Guardian;
g. Restrain Respondents from proceeding with any purported
restoration, repair, salvage or post salvage plan or plans, including
cleanup plans covering the damaged area of the Tubbataha Reef
absent a just settlement approved by the Honorable Court;
h. Require Respondents to engage in stakeholder and LOU
consultations in accordance with the Local Government Code and
R.A. 10067;
i. Require Respondent US officials and their representatives to
place a deposit to the TRNP Trust Fund defined under Section 17
of RA 10067 as a bona .fide gesture towards full reparations;
j. Direct Respondents to undertake measures to rehabilitate the
areas affected by the grounding of the Guardian in light of
Respondents' experience in the Port Royale grounding in 2009,
among other similar grounding incidents;
k. Require Respondents to regularly publish on a quarterly basis
and in the name of transparency and accountability such
environmental damage assessment, valuation, and valuation
methods, in all stages of negotiation;
l. Convene a multisectoral technical working group to provide
scientific and technical support to the TPAMB;

m. Order the Department of Foreign Affairs, Department of National

Defense, and the Department of Environment and Natural
Resources to review the Visiting Forces Agreement and the Mutual
Defense Treaty to consider whether their provisions allow for the
exercise of erga omnes rights to a balanced and healthful ecology
and for damages which follow from any violation of those rights;
n. Narrowly tailor the provisions of the Visiting Forces Agreement
for purposes of protecting the damaged areas of TRNP;
o. Declare the grant of immunity found in Article V ("Criminal
Jurisdiction") and Article VI of the Visiting Forces Agreement
unconstitutional for violating equal protection and/or for violating the
preemptory norm of nondiscrimination incorporated as part of the
law of the land under Section 2, Article II, of the Philippine
Constitution;

of the extent of responsibility of the US Government as regards the damage

to the Tubbataha Reefs rests exdusively with the executive branch.
The Court's Ruling
As a preliminary matter, there is no dispute on the legal standing of
petitioners to file the present petition.
Locus standi is "a right of appearance in a court of justice on a given
question."10 Specifically, it is "a party's personal and substantial interest in a
case where he has sustained or will sustain direct injury as a result" of the
act being challenged, and "calls for more than just a generalized
grievance."11 However, the rule on standing is a procedural matter which this
Court has relaxed for non-traditional plaintiffs like ordinary citizens,
taxpayers and legislators when the public interest so requires, such as when
the subject matter of the controversy is of transcendental importance, of
overreaching significance to society, or of paramount public interest.12

p. Allow for continuing discovery measures;

q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs in
all other respects; and
4. Provide just and equitable environmental rehabilitation measures
and such other reliefs as are just and equitable under the
premises.7 (Underscoring supplied.)
Since only the Philippine respondents filed their comment8 to the petition,
petitioners also filed a motion for early resolution and motion to proceed ex
parte against the US respondents.9
Respondents' Consolidated Comment
In their consolidated comment with opposition to the application for a TEPO
and ocular inspection and production orders, respondents assert that: ( 1)
the grounds relied upon for the issuance of a TEPO or writ of Kalikasan have
become fait accompli as the salvage operations on the USS Guardian were
already completed; (2) the petition is defective in form and substance; (3) the
petition improperly raises issues involving the VFA between the Republic of
the Philippines and the United States of America; and ( 4) the determination

In the landmark case of Oposa v. Factoran, Jr., 13 we recognized the "public

right" of citizens to "a balanced and healthful ecology which, for the first time
in our constitutional history, is solemnly incorporated in the fundamental law."
We declared that the right to a balanced and healthful ecology need not be
written in the Constitution for it is assumed, like other civil and polittcal rights
guaranteed in the Bill of Rights, to exist from the inception of mankind and it
is an issue of transcendental importance with intergenerational
implications.1wphi1 Such right carries with it the correlative duty to refrain
from impairing the environment.14
On the novel element in the class suit filed by the petitioners minors in
Oposa, this Court ruled that not only do ordinary citizens have legal standing
to sue for the enforcement of environmental rights, they can do so in
representation of their own and future generations. Thus:
Petitioners minors assert that they represent their generation as well as
generations yet unborn. We find no difficulty in ruling that they can, for
themselves, for others of their generation and for the succeeding
generations, file a class suit. Their personality to sue in behalf of the
succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced and
healthful ecology is concerned. Such a right, as hereinafter expounded,

considers the "rhythm and harmony of nature." Nature means the created
world in its entirety. Such rhythm and harmony indispensably include, inter
alia, the judicious disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land, waters, fisheries, wildlife,
off-shore areas and other natural resources to the end that their exploration,
development and utilization be equitably accessible to the present a:: well as
future generations. Needless to say, every generation has a responsibility to
the next to preserve that rhythm and harmony for the full 1:njoyment of a
balanced and healthful ecology. Put a little differently, the minors' assertion
of their right to a sound environment constitutes, at the same time, the
performance of their obligation to ensure the protection of that right for the
generations to come.15 (Emphasis supplied.)
The liberalization of standing first enunciated in Oposa, insofar as it refers to
minors and generations yet unborn, is now enshrined in the Rules which
allows the filing of a citizen suit in environmental cases. The provision on
citizen suits in the Rules "collapses the traditional rule on personal and direct
interest, on the principle that humans are stewards of nature."16
Having settled the issue of locus standi, we shall address the more
fundamental question of whether this Court has jurisdiction over the US
respondents who did not submit any pleading or manifestation in this case.
The immunity of the State from suit, known also as the doctrine of sovereign
immunity or non-suability of the State, 17is expressly provided in Article XVI of
the 1987 Constitution which states:
Section 3. The State may not be sued without its consent.
In United States of America v. Judge Guinto,18 we discussed the principle of
state immunity from suit, as follows:
The rule that a state may not be sued without its consent, now expressed in
Article XVI, Section 3, of the 1987 Constitution, is one of the generally
accepted principles of international law that we have adopted as part of the
law of our land under Article II, Section 2. x x x.
Even without such affirmation, we would still be bound by the generally
accepted principles of international law under the doctrine of incorporation.
Under this doctrine, as accepted by the majority of states, such principles

are deemed incorporated in the law of every civilized state as a condition

and consequence of its membership in the society of nations. Upon its
admission to such society, the state is automatically obligated to comply with
these principles in its relations with other states.
As applied to the local state, the doctrine of state immunity is based on the
justification given by Justice Holmes that ''there can be no legal right against
the authority which makes the law on which the right depends." [Kawanakoa
v. Polybank, 205 U.S. 349] There are other practical reasons for the
enforcement of the doctrine. In the case of the foreign state sought to be
impleaded in the local jurisdiction, the added inhibition is expressed in the
maxim par in parem, non habet imperium. All states are sovereign equals
and cannot assert jurisdiction over one another. A contrary disposition would,
in the language of a celebrated case, "unduly vex the peace of nations." [De
Haber v. Queen of Portugal, 17 Q. B. 171]
While the doctrine appears to prohibit only suits against the state without its
consent, it is also applicable to complaints filed against officials of the state
for acts allegedly performed by them in the discharge of their duties. The
rule is that if the judgment against such officials will require the state itself to
perform an affirmative act to satisfy the same,. such as the appropriation of
the amount needed to pay the damages awarded against them, the suit
must be regarded as against the state itself although it has not been formally
impleaded. [Garcia v. Chief of Staff, 16 SCRA 120] In such a situation, the
state may move to dismiss the comp.taint on the ground that it has been
filed without its consent.19 (Emphasis supplied.)
Under the American Constitution, the doctrine is expressed in the Eleventh
Amendment which reads:
The Judicial power of the United States shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any
Foreign State.
In the case of Minucher v. Court of Appeals,20 we further expounded on the
immunity of foreign states from the jurisdiction of local courts, as follows:
The precept that a State cannot be sued in the courts of a foreign state is a
long-standing rule of customary international law then closely identified with

the personal immunity of a foreign sovereign from suit and, with the
emergence of democratic states, made to attach not just to the person of the
head of state, or his representative, but also distinctly to the state itself in its
sovereign capacity. If the acts giving rise to a suit arc those of a foreign
government done by its foreign agent, although not necessarily a diplomatic
personage, but acting in his official capacity, the complaint could be barred
by the immunity of the foreign sovereign from suit without its consent. Suing
a representative of a state is believed to be, in effect, suing the state itself.
The proscription is not accorded for the benefit of an individual but for the
State, in whose service he is, under the maxim -par in parem, non habet
imperium -that all states are soverr~ign equals and cannot assert jurisdiction
over one another. The implication, in broad terms, is that if the judgment
against an official would rec 1uire the state itself to perform an affirmative act
to satisfy the award, such as the appropriation of the amount needed to pay
the damages decreed against him, the suit must be regarded as being
against the state itself, although it has not been formally
impleaded.21 (Emphasis supplied.)
In the same case we also mentioned that in the case of diplomatic immunity,
the privilege is not an immunity from the observance of the law of the
territorial sovereign or from ensuing legal liability; it is, rather, an immunity
from the exercise of territorial jurisdiction.22
In United States of America v. Judge Guinto, 23 one of the consolidated cases
therein involved a Filipino employed at Clark Air Base who was arrested
following a buy-bust operation conducted by two officers of the US Air Force,
and was eventually dismissed from his employment when he was charged in
court for violation of R.A. No. 6425. In a complaint for damages filed by the
said employee against the military officers, the latter moved to dismiss the
case on the ground that the suit was against the US Government which had
not given its consent. The RTC denied the motion but on a petition for
certiorari and prohibition filed before this Court, we reversed the RTC and
dismissed the complaint. We held that petitioners US military officers were
acting in the exercise of their official functions when they conducted the buybust operation against the complainant and thereafter testified against him at
his trial. It follows that for discharging their duties as agents of the United
States, they cannot be directly impleaded for acts imputable to their
principal, which has not given its consent to be sued.
This traditional rule of State immunity which exempts a State from being
sued in the courts of another State without the former's consent or waiver

has evolved into a restrictive doctrine which distinguishes sovereign and

governmental acts (Jure imperil") from private, commercial and proprietary
acts (Jure gestionis). Under the restrictive rule of State immunity, State
immunity extends only to acts Jure imperii. The restrictive application of
State immunity is proper only when the proceedings arise out of commercial
transactions of the foreign sovereign, its commercial activities or economic
affairs.24
In Shauf v. Court of Appeals,25 we discussed the limitations of the State
immunity principle, thus:
It is a different matter where the public official is made to account in his
capacity as such for acts contrary to law and injurious to the rights of
plaintiff. As was clearly set forth by JustiGe Zaldivar in Director of the Bureau
of Telecommunications, et al. vs. Aligaen, etc., et al. : "Inasmuch as the
State authorizes only legal acts by its officers, unauthorized acts of
government officials or officers are not acts of the State, and an action
against the officials or officers by one whose rights have been invaded or
violated by such acts, for the protection of his rights, is not a suit against the
State within the rule of immunity of the State from suit. In the same tenor, it
has been said that an action at law or suit in equity against a State officer or
the director of a State department on the ground that, while claiming to act
for the State, he violates or invades the personal and property rights of the
plaintiff, under an unconstitutional act or under an assumption of authority
which he does not have, is not a suit against the State within the
constitutional provision that the State may not be sued without its consent."
The rationale for this ruling is that the doctrine of state immunity cannot be
used as an instrument for perpetrating an injustice.
xxxx
The aforecited authorities are clear on the matter. They state that the
doctrine of immunity from suit will not apply and may not be invoked where
the public official is being sued in his private and personal capacity as an
ordinary citizen. The cloak of protection afforded the officers and agents of
the government is removed the moment they are sued in their individual
capacity. This situation usually arises where the public official acts without
authority or in excess of the powers vested in him. It is a well-settled
principle of law that a public official may be liable in his personal private
capacity for whatever damage he may have caused by his act done with
malice and in bad faith, or beyond the scope of his authority or

jurisdiction.26 (Emphasis supplied.) In this case, the US respondents were

sued in their official capacity as commanding officers of the US Navy who
had control and supervision over the USS Guardian and its crew. The
alleged act or omission resulting in the unfortunate grounding of the USS
Guardian on the TRNP was committed while they we:re performing official
military duties. Considering that the satisfaction of a judgment against said
officials will require remedial actions and appropriation of funds by the US
government, the suit is deemed to be one against the US itself. The principle
of State immunity therefore bars the exercise of jurisdiction by this Court
over the persons of respondents Swift, Rice and Robling.
During the deliberations, Senior Associate Justice Antonio T. Carpio took the
position that the conduct of the US in this case, when its warship entered a
restricted area in violation of R.A. No. 10067 and caused damage to the
TRNP reef system, brings the matter within the ambit of Article 31 of the
United Nations Convention on the Law of the Sea (UNCLOS). He explained
that while historically, warships enjoy sovereign immunity from suit as
extensions of their flag State, Art. 31 of the UNCLOS creates an exception to
this rule in cases where they fail to comply with the rules and regulations of
the coastal State regarding passage through the latter's internal waters and
the territorial sea.
According to Justice Carpio, although the US to date has not ratified the
UNCLOS, as a matter of long-standing policy the US considers itself bound
by customary international rules on the "traditional uses of the oceans" as
codified in UNCLOS, as can be gleaned from previous declarations by
former Presidents Reagan and Clinton, and the US judiciary in the case of
United States v. Royal Caribbean Cruise Lines, Ltd.27

of the oldest customary principles of international law.30 The UNCLOS gives

to the coastal State sovereign rights in varying degrees over the different
zones of the sea which are: 1) internal waters, 2) territorial sea, 3)
contiguous zone, 4) exclusive economic zone, and 5) the high seas. It also
gives coastal States more or less jurisdiction over foreign vessels depending
on where the vessel is located.31
Insofar as the internal waters and territorial sea is concerned, the Coastal
State exercises sovereignty, subject to the UNCLOS and other rules of
international law. Such sovereignty extends to the air space over the
territorial sea as well as to its bed and subsoil.32
In the case of warships, 33 as pointed out by Justice Carpio, they continue to
enjoy sovereign immunity subject to the following exceptions:
Article
30
Non-compliance by warships with the laws and regulations of the coastal
State
If any warship does not comply with the laws and regulations of the coastal
State concerning passage through the territorial sea and disregards any
request for compliance therewith which is made to it, the coastal State may
require it to leave the territorial sea immediately.
Article
Responsibility of the flag State for damage caused by a warship

31

or other government ship operated for non-commercial purposes

The international law of the sea is generally defined as "a body of treaty
rules arid customary norms governing the uses of the sea, the exploitation of
its resources, and the exercise of jurisdiction over maritime regimes. It is a
branch of public international law, regulating the relations of states with
respect to the uses of the oceans." 28 The UNCLOS is a multilateral treaty
which was opened for signature on December 10, 1982 at Montego Bay,
Jamaica. It was ratified by the Philippines in 1984 but came into force on
November 16, 1994 upon the submission of the 60th ratification.
The UNCLOS is a product of international negotiation that seeks to balance
State sovereignty (mare clausum) and the principle of freedom of the high
seas (mare liberum).29 The freedom to use the world's marine waters is one

The flag State shall bear international responsibility for any loss or damage
to the coastal State resulting from the non-compliance by a warship or other
government ship operated for non-commercial purposes with the laws and
regulations of the coastal State concerning passage through the territorial
sea or with the provisions of this Convention or other rules of international
law.
Article
32
Immunities of warships and other government ships operated for noncommercial purposes

With such exceptions as are contained in subsection A and in articles 30 and

31, nothing in this Convention affects the immunities of warships and other
government ships operated for non-commercial purposes. (Emphasis
supplied.) A foreign warship's unauthorized entry into our internal waters with
resulting damage to marine resources is one situation in which the above
provisions may apply. But what if the offending warship is a non-party to the
UNCLOS, as in this case, the US?
An overwhelming majority - over 80% -- of nation states are now members of
UNCLOS, but despite this the US, the world's leading maritime power, has
not ratified it.
While the Reagan administration was instrumental in UNCLOS' negotiation
and drafting, the U.S. delegation ultimately voted against and refrained from
signing it due to concerns over deep seabed mining technology transfer
provisions contained in Part XI. In a remarkable, multilateral effort to induce
U.S. membership, the bulk of UNCLOS member states cooperated over the
succeeding decade to revise the objection.able provisions. The revisions
satisfied the Clinton administration, which signed the revised Part XI
implementing agreement in 1994. In the fall of 1994, President Clinton
transmitted UNCLOS and the Part XI implementing agreement to the Senate
requesting its advice and consent. Despite consistent support from President
Clinton, each of his successors, and an ideologically diverse array of
stakeholders, the Senate has since withheld the consent required for the
President to internationally bind the United States to UNCLOS.
While UNCLOS cleared the Senate Foreign Relations Committee (SFRC)
during the 108th and 110th Congresses, its progress continues to be
hamstrung by significant pockets of political ambivalence over U.S.
participation in international institutions. Most recently, 111 th Congress
SFRC Chairman Senator John Kerry included "voting out" UNCLOS for full
Senate consideration among his highest priorities. This did not occur, and no
Senate action has been taken on UNCLOS by the 112th Congress.34
Justice Carpio invited our attention to the policy statement given by
President Reagan on March 10, 1983 that the US will "recognize the rights
of the other , states in the waters off their coasts, as reflected in the
convention [UNCLOS], so long as the rights and freedom of the United
States and others under international law are recognized by such coastal
states", and President Clinton's reiteration of the US policy "to act in a
manner consistent with its [UNCLOS] provisions relating to traditional uses

of the oceans and to encourage other countries to do likewise." Since Article

31 relates to the "traditional uses of the oceans," and "if under its policy, the
US 'recognize[s] the rights of the other states in the waters off their coasts,"'
Justice Carpio postulates that "there is more reason to expect it to recognize
the rights of other states in their internal waters, such as the Sulu Sea in this
case."
As to the non-ratification by the US, Justice Carpio emphasizes that "the US'
refusal to join the UN CLOS was centered on its disagreement with UN
CLOS' regime of deep seabed mining (Part XI) which considers the oceans
and deep seabed commonly owned by mankind," pointing out that such "has
nothing to do with its [the US'] acceptance of customary international rules
on navigation."
It may be mentioned that even the US Navy Judge Advocate General's
Corps publicly endorses the ratification of the UNCLOS, as shown by the
following statement posted on its official website:
The Convention is in the national interest of the United States because it
establishes stable maritime zones, including a maximum outer limit for
territorial seas; codifies innocent passage, transit passage, and archipelagic
sea lanes passage rights; works against "jurisdictiomtl creep" by preventing
coastal nations from expanding their own maritime zones; and reaffirms
sovereign immunity of warships, auxiliaries anJ government aircraft.
xxxx
Economically, accession to the Convention would support our national
interests by enhancing the ability of the US to assert its sovereign rights over
the resources of one of the largest continental shelves in the world. Further,
it is the Law of the Sea Convention that first established the concept of a
maritime Exclusive Economic Zone out to 200 nautical miles, and
recognized the rights of coastal states to conserve and manage the natural
resources in this Zone.35
We fully concur with Justice Carpio's view that non-membership in the
UNCLOS does not mean that the US will disregard the rights of the
Philippines as a Coastal State over its internal waters and territorial sea. We
thus expect the US to bear "international responsibility" under Art. 31 in
connection with the USS Guardian grounding which adversely affected the

Tubbataha reefs. Indeed, it is difficult to imagine that our long-time ally and
trading partner, which has been actively supporting the country's efforts to
preserve our vital marine resources, would shirk from its obligation to
compensate the damage caused by its warship while transiting our internal
waters. Much less can we comprehend a Government exercising leadership
in international affairs, unwilling to comply with the UNCLOS directive for all
nations to cooperate in the global task to protect and preserve the marine
environment as provided in Article 197, viz:
Article
Cooperation on a global or regional basis

197

States shall cooperate on a global basis and, as appropriate, on a regional

basis, directly or through competent international organizations, in
formulating and elaborating international rules, standards and recommended
practices and procedures consistent with this Convention, for the protection
and preservation of the marine environment, taking into account
characteristic regional features.
In fine, the relevance of UNCLOS provisions to the present controversy is
beyond dispute. Although the said treaty upholds the immunity of warships
from the jurisdiction of Coastal States while navigating the.latter's territorial
sea, the flag States shall be required to leave the territorial '::;ea immediately
if they flout the laws and regulations of the Coastal State, and they will be
liable for damages caused by their warships or any other government vessel
operated for non-commercial purposes under Article 31.
Petitioners argue that there is a waiver of immunity from suit found in the
VFA. Likewise, they invoke federal statutes in the US under which agencies
of the US have statutorily waived their immunity to any action. Even under
the common law tort claims, petitioners asseverate that the US respondents
are liable for negligence, trespass and nuisance.
We are not persuaded.
The VFA is an agreement which defines the treatment of United States
troops and personnel visiting the Philippines to promote "common security
interests" between the US and the Philippines in the region. It provides for
the guidelines to govern such visits of military personnel, and further defines
the rights of the United States and the Philippine government in the matter of

criminal jurisdiction, movement of vessel and aircraft, importation and

exportation of equipment, materials and supplies.36 The invocation of US
federal tort laws and even common law is thus improper considering that it is
the VF A which governs disputes involving US military ships and crew
navigating Philippine waters in pursuance of the objectives of the
agreement.
As it is, the waiver of State immunity under the VF A pertains only to criminal
jurisdiction and not to special civil actions such as the present petition for
issuance of a writ of Kalikasan. In fact, it can be inferred from Section 17,
Rule 7 of the Rules that a criminal case against a person charged with a
violation of an environmental law is to be filed separately:
SEC. 17. Institution of separate actions.-The filing of a petition for the
issuance of the writ of kalikasan shall not preclude the filing of separate civil,
criminal or administrative actions.
In any case, it is our considered view that a ruling on the application or nonapplication of criminal jurisdiction provisions of the VF A to US personnel
who may be found responsible for the grounding of the USS Guardian,
would be premature and beyond the province of a petition for a writ of
Kalikasan. We also find it unnecessary at this point to determine whether
such waiver of State immunity is indeed absolute. In the same vein, we
cannot grant damages which have resulted from the violation of
environmental laws. The Rules allows the recovery of damages, including
the collection of administrative fines under R.A. No. 10067, in a separate
civil suit or that deemed instituted with the criminal action charging the same
violation of an environmental law.37
Section 15, Rule 7 enumerates the reliefs which may be granted in a petition
for issuance of a writ of Kalikasan, to wit:
SEC. 15. Judgment.-Within sixty (60) days from the time the petition is
submitted for decision, the court shall render judgment granting or denying
the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist from
committing acts or neglecting the performance of a duty in violation

of environmental laws resulting in environmental destruction or

damage;
(b) Directing the respondent public official, govemment agency,
private person or entity to protect, preserve, rehabilitate or restore
the environment;
(c) Directing the respondent public official, government agency,
private person or entity to monitor strict compliance with the
decision and orders of the court;

SEC. 3. Referral to mediation.-At the start of the pre-trial conference, the

court shall inquire from the parties if they have settled the dispute; otherwise,
the court shall immediately refer the parties or their counsel, if authorized by
their clients, to the Philippine Mediation Center (PMC) unit for purposes of
mediation. If not available, the court shall refer the case to the clerk of court
or legal researcher for mediation.
Mediation must be conducted within a non-extendible period of thirty (30)
days from receipt of notice of referral to mediation.

(d) Directing the respondent public official, government agency, or

private person or entity to make periodic reports on the execution of
the final judgment; and

The mediation report must be submitted within ten (10) days from the
expiration of the 30-day period.

(e) Such other reliefs which relate to the right of the people to a
balanced and healthful ecology or to the protection, preservation,
rehabilitation or restoration of the environment, except the award of
damages to individual petitioners. (Emphasis supplied.)

SEC. 4. Preliminary conference.-If mediation fails, the court will schedule the
continuance of the pre-trial. Before the scheduled date of continuance, the
court may refer the case to the branch clerk of court for a preliminary
conference for the following purposes:

We agree with respondents (Philippine officials) in asserting that this petition

has become moot in the sense that the salvage operation sought to be
enjoined or restrained had already been accomplished when petitioners
sought recourse from this Court. But insofar as the directives to Philippine
respondents to protect and rehabilitate the coral reef stn icture and marine
habitat adversely affected by the grounding incident are concerned,
petitioners are entitled to these reliefs notwithstanding the completion of the
removal of the USS Guardian from the coral reef. However, we are mindful
of the fact that the US and Philippine governments both expressed
readiness to negotiate and discuss the matter of compensation for the
damage caused by the USS Guardian. The US Embassy has also declared
it is closely coordinating with local scientists and experts in assessing the
extent of the damage and appropriate methods of rehabilitation.
Exploring avenues for settlement of environmental cases is not proscribed
by the Rules. As can be gleaned from the following provisions, mediation
and settlement are available for the consideration of the parties, and which
dispute resolution methods are encouraged by the court, to wit:
RULE3

xxxx

(a) To assist the parties in reaching a settlement;

xxxx
SEC. 5. Pre-trial conference; consent decree.-The judge shall put the parties
and their counsels under oath, and they shall remain under oath in all pretrial conferences.
The judge shall exert best efforts to persuade the parties to arrive at a
settlement of the dispute. The judge may issue a consent decree approving
the agreement between the parties in accordance with law, morals, public
order and public policy to protect the right of the people to a balanced and
healthful ecology.
xxxx
SEC. 10. Efforts to settle.- The court shall endeavor to make the parties to
agree to compromise or settle in accordance with law at any stage of the
proceedings before rendition of judgment. (Underscoring supplied.)

The Court takes judicial notice of a similar incident in 2009 when a guidedmissile cruiser, the USS Port Royal, ran aground about half a mile off the
Honolulu Airport Reef Runway and remained stuck for four days. After
spending $6.5 million restoring the coral reef, the US government was
reported to have paid the State of Hawaii $8.5 million in settlement over
coral reef damage caused by the grounding.38
To underscore that the US government is prepared to pay appropriate
compensation for the damage caused by the USS Guardian grounding, the
US Embassy in the Philippines has announced the formation of a US
interdisciplinary scientific team which will "initiate discussions with the
Government of the Philippines to review coral reef rehabilitation options in
Tubbataha, based on assessments by Philippine-based marine scientists."
The US team intends to "help assess damage and remediation options, in
coordination with the Tubbataha Management Office, appropriate Philippine
government entities, non-governmental organizations, and scientific experts
from Philippine universities."39
A rehabilitation or restoration program to be implemented at the cost of the
violator is also a major relief that may be obtained under a judgment
rendered in a citizens' suit under the Rules, viz:
RULES
SECTION 1. Reliefs in a citizen suit.-If warranted, the court may grant to the
plaintiff proper reliefs which shall include the protection, preservation or
rehabilitation of the environment and the payment of attorney's fees, costs of
suit and other litigation expenses. It may also require the violator to submit a
program of rehabilitation or restoration of the environment, the costs of
which shall be borne by the violator, or to contribute to a special trust fund
for that purpose subject to the control of the court.1wphi1
In the light of the foregoing, the Court defers to the Executive Branch on the
matter of compensation and rehabilitation measures through diplomatic
channels. Resolution of these issues impinges on our relations with another
State in the context of common security interests under the VFA. It is settled
that "[t]he conduct of the foreign relations of our government is committed by
the Constitution to the executive and legislative-"the political" --departments
of the government, and the propriety of what may be done in the exercise of
this political power is not subject to judicial inquiry or decision."40

On the other hand, we cannot grant the additional reliefs prayed for in the
petition to order a review of the VFA and to nullify certain immunity
provisions thereof.
As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec.
Zamora,41 the VFA was duly concurred in by the Philippine Senate and has
been recognized as a treaty by the United States as attested and certified by
the duly authorized representative of the United States government. The VF
A being a valid and binding agreement, the parties are required as a matter
of international law to abide by its terms and provisions. 42 The present
petition under the Rules is not the proper remedy to assail the
constitutionality of its provisions. WHEREFORE, the petition for the issuance
of the privilege of the Writ of Kalikasan is hereby DENIED.
No pronouncement as to costs.
SO ORDERED.

Republic
SUPREME
Baguio City

of

the

Philippines
COURT

EN BANC
G.R. No. 204819

April 8, 2014

JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and

in behalf of their minor children, LUCIA CARLOS IMBONG and
BERNADETTE
CARLOS
IMBONG
and
MAGNIFICAT
CHILD
DEVELOPMENT
CENTER,
INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO
B. ABAD, Secretary, Department of Budget and Management, HON.
ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, Culture and Sports and
HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 204934
ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC. [ALFI],
represented by its President, Maria Concepcion S. Noche, Spouses
Reynaldo S. Luistro & Rosie B . Luistro, Jose S. Sandejas & Elenita
S.A. Sandejas, Arturo M. Gorrez & Marietta C. Gorrez, Salvador S.
Mante, Jr. & Hazeleen L. Mante, Rolando M. Bautista & Maria Felisa S.
Bautista, Desiderio Racho & Traquilina Racho, F emand Antonio A.
Tansingco & Carol Anne C. Tansingco for themselves and on behalf of
their minor children, Therese Antonette C. Tansingco, Lorenzo Jose C.
Tansingco, Miguel F emando C. Tangsingco, Carlo Josemaria C.
Tansingco & Juan Paolo C. Tansingco, Spouses Mariano V. Araneta &
Eileen Z. Araneta for themselves and on behalf of their minor children,
Ramon Carlos Z. Araneta & Maya Angelica Z. Araneta, Spouses Renato
C. Castor & Mildred C. Castor for themselves and on behalf of their
minor children, Renz Jeffrey C. Castor, Joseph Ramil C. Castor, John
Paul C. Castor & Raphael C. Castor, Spouses Alexander R. Racho &
Zara Z. Racho for themselves and on behalf of their minor children

Margarita Racho, Mikaela Racho, Martin Racho, Mari Racho & Manolo
Racho, Spouses Alfred R. Racho & Francine V. Racho for themselves
and on behalf of their minor children Michael Racho, Mariana Racho,
Rafael Racho, Maxi Racho, Chessie Racho & Laura Racho, Spouses
David R. Racho & Armilyn A. Racho for themselves and on behalf of
their minor child Gabriel Racho, Mindy M. Juatas and on behalf of her
minor children Elijah Gerald Juatas and Elian Gabriel Juatas, Salvacion
M. Monteiro, Emily R. Laws, Joseph R . Laws & Katrina R.
Laws, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T.
ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO,
Secretary, Department of Education, Culture and Sports, HON.
CORAZON SOLIMAN, Secretary, Department of Social Welfare and
Development, HON. MANUELA. ROXAS II, Secretary, Department of
Interior and Local Government, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ARSENIO M.
BALISACAN, Socio-Economic Planning Secretary and NEDA DirectorGeneral, THE PHILIPPINE COMMISSION ON WOMEN, represented by
its Chairperson, Remedios lgnacio-Rikken, THE PHILIPPINE HEALTH
INSURANCE CORPORATION, represented by its President Eduardo
Banzon, THE LEAGUE OF PROVINCES OF THE PHILIPPINES,
represented by its President Alfonso Umali, THE LEAGUE OF CITIES
OF THE PHILIPPINES, represented by its President Oscar Rodriguez,
and THE LEAGUE OF MUNICIPALITIES OF THE PHILIPPINES,
represented by its President Donato Marcos,Respondents.

SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr. Nestor

B. Lumicao, M.D., as President and in his personal capacity,
ROSEVALE FOUNDATION INC., represented by Dr. Rodrigo M. Alenton,
M.D., as member of the school board and in his personal capacity,
ROSEMARIE R. ALENTON, IMELDA G. IBARRA, CPA, LOVENIAP.
NACES, Phd., ANTHONY G. NAGAC, EARL ANTHONY C. GAMBE and
MARLON
I.
YAP,Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE
OF REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of
Budget and Management; HON. ENRIQUE T. ONA, Secretary,
Department of Health; HON. ARMIN A. LUISTRO, Secretary, Department
of Education and HON. MANUELA. ROXAS II, Secretary, Department of
Interior and Local Government, Respondents.

x---------------------------------x

x---------------------------------x

G.R. No. 204957

G.R. No. 205043

TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and VALERIANO S.
AVILA, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO
B. ABAD, Secretary, Department of Budget and Management; HON.
ENRIQUE T. ONA, Secretary, Department of Education; and HON.
MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE

APOSTOLATE
OF
THE
PHILIPPINES, Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE H.
LAZO, DBM SECRETARY FLORENCIO B. ABAD, DILG SECRETARY
MANUELA.
ROXAS
II,
DECS
SECRETARY
ARMIN
A.
LUISTRO, Respondents.

x---------------------------------x
G.R. No. 204988

x---------------------------------x
G.R. No. 205003
EXPEDITO
A.
BUGARIN,
JR., Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES,
HON. SENATE PRESIDENT, HON. SPEAKER OF THE HOUSE OF
REPRESENTATIVES and HON. SOLICITOR GENERAL, Respondents.

x---------------------------------x
G.R. No. 205138

PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein

represented by its National President, Atty. Ricardo M . Ribo, and in his
own behalf, Atty. Lino E.A. Dumas, Romeo B. Almonte, Osmundo C.
Orlanes, Arsenio Z. Menor, Samuel J. Yap, Jaime F. Mateo, Rolly
Siguan, Dante E. Magdangal, Michael Eugenio O. Plana, Bienvenido C.
Miguel, Jr., Landrito M. Diokno and Baldomero Falcone, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO
B. ABAD, Secretary, Department of Budget and Management, HON.
ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, HON. MANUELA.
ROXAS II, Secretary, Department of Interior and Local Government,
HON. CORAZON J. SOLIMAN, Secretary, Department of Social Welfare
and Development, HON. ARSENIO BALISACAN, Director-General,
National Economic and Development Authority, HON. SUZETTE H.
LAZO, Director-General, Food and Drugs Administration, THE BOARD
OF DIRECTORS, Philippine Health Insurance Corporation, and THE
BOARD
OF
COMMISSIONERS,
Philippine
Commission
on
Women, Respondents.
x---------------------------------x
G.R. No. 205478
REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D., CYNTHIA
T. DOMINGO, M.D., AND JOSEPHINE MILLADO-LUMITAO, M.D.,
collectively known as Doctors For Life, and ANTHONY PEREZ,
MICHAEL ANTHONY G. MAPA, CARLOS ANTONIO PALAD, WILFREDO
JOSE, CLAIRE NAVARRO, ANNA COSIO, and GABRIEL DY LIACCO
collectively
known
as
Filipinos
For
Life, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO
B. ABAD, Secretary of the Department of Budget and Management;
HON. ENRIQUE T. ONA, Secretary of the Department of Health; HON.
ARMIN A. LUISTRO, Secretary of the Department of Education; and
HON. MANUELA. ROXAS II, Secretary of the Department of Interior and
Local Government, Respondents.

SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD & ALA

F. PAGUIA, for themselves, their Posterity, and the rest of Filipino
posterity, Petitioners,
vs.
OFFICE
OF
THE
PRESIDENT
of
the
Republic
of
the
Philippines, Respondent.
x---------------------------------x
G.R. No. 205720
PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by Loma
Melegrito, as Executive Director, and in her personal capacity,
JOSELYN B. BASILIO, ROBERT Z. CORTES, ARIEL A. CRISOSTOMO,
JEREMY I. GATDULA, CRISTINA A. MONTES, RAUL ANTONIO A.
NIDOY, WINSTON CONRAD B. PADOJINOG, RUFINO L. POLICARPIO
III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE
OF REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of
Budget and Management, HON. ENRIQUE T. ONA, Secretary,
Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department
of Education and HON. MANUEL A. ROXAS II, Secretary, Department of
Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 206355
MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON PEDROSA,
ATTY. CITA BORROMEO-GARCIA, STELLAACEDERA, ATTY. BERTENI
CATALUNA
CAUSING, Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE
SECRETARY, DEPARTMENT OF HEALTH, DEPARTMENT OF
EDUCATION, Respondents.

x---------------------------------x
x---------------------------------x
G.R. No. 205491
G.R. No. 207111

JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY VICTORIO B.

LUMICAO, JOSEPH MARTIN Q. VERDEJO, ANTONIA EMMA R. ROXAS
and
LOTA
LAT-GUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO
ABAD, Secretary, Department of Budget and Management, HON.
ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, Culture and Sports and
HON. MANUEL A. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 207172
COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN CARLOS
ARTADI SARMIENTO AND FRANCESCA ISABELLE BESINGASARMIENTO, AND SPOUSES LUIS FRANCIS A. RODRIGO, JR. and
DEBORAH
MARIE
VERONICA
N.
RODRIGO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO
B. ABAD, Secretary, Department of Budget and Management, HON.
ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, Culture and Sports and
HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 207563
ALMARIM CENTI TILLAH and ABDULHUSSEIN M. KASHIM, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T.
ONA, Secretary of the Department of Health, and HON. ARMIN A.
LUISTRO,Secretary
of
the
Department
of
Budget
and
Management, Respondents.
DECISION
MENDOZA, J.:

Freedom of religion was accorded preferred status by the framers of our

fundamental law. And this Court has consistently affirmed this preferred
status, well aware that it is "designed to protect the broadest possible liberty
of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs , and to live as he believes he ought to live, consistent
with the liberty of others and with the common good."1
To this day, poverty is still a major stumbling block to the nation's emergence
as a developed country, leaving our people beleaguered in a state of hunger,
illiteracy and unemployment. While governmental policies have been geared
towards the revitalization of the economy, the bludgeoning dearth in social
services remains to be a problem that concerns not only the poor, but every
member of society. The government continues to tread on a trying path to
the realization of its very purpose, that is, the general welfare of the Filipino
people and the development of the country as a whole. The legislative
branch, as the main facet of a representative government, endeavors to
enact laws and policies that aim to remedy looming societal woes, while the
executive is closed set to fully implement these measures and bring
concrete and substantial solutions within the reach of Juan dela Cruz.
Seemingly distant is the judicial branch, oftentimes regarded as an inert
governmental body that merely casts its watchful eyes on clashing
stakeholders until it is called upon to adjudicate. Passive, yet reflexive when
called into action, the Judiciary then willingly embarks on its solemn duty to
interpret legislation vis-a-vis the most vital and enduring principle that holds
Philippine society together - the supremacy of the Philippine Constitution.
Nothing has polarized the nation more in recent years than the issues of
population growth control, abortion and contraception. As in every
democratic society, diametrically opposed views on the subjects and their
perceived consequences freely circulate in various media. From television
debates2 to sticker campaigns,3 from rallies by socio-political activists to
mass gatherings organized by members of the clergy4 - the clash between
the seemingly antithetical ideologies of the religious conservatives and
progressive liberals has caused a deep division in every level of the society.
Despite calls to withhold support thereto, however, Republic Act (R.A.) No.
10354, otherwise known as the Responsible Parenthood and Reproductive
Health Act of 2012 (RH Law), was enacted by Congress on December 21,
2012.
Shortly after the President placed his imprimatur on the said law, challengers
from various sectors of society came knocking on the doors of the Court,
beckoning it to wield the sword that strikes down constitutional disobedience.
Aware of the profound and lasting impact that its decision may produce, the

Court now faces the iuris controversy, as presented in fourteen (14) petitions
and two (2) petitions- in-intervention, to wit:

unborn. Atty. Alan F. Paguia is also proceeding in his capacity as a

member of the Bar (Tatad);

(1) Petition for Certiorari and Prohibition,5 filed by spouses Attys.

James M. Imbong and Lovely Ann C. Imbong, in their personal
capacities as citizens, lawyers and taxpayers and on behalf of their
minor children; and the Magnificat Child Leaming Center, Inc., a
domestic, privately-owned educational institution (Jmbong);

(10) Petition for Certiorari and Prohibition, 23 filed by Pro-Life

Philippines Foundation Inc.24 and several others,25 in their
capacities as citizens and taxpayers and on behalf of its associates
who are members of the Bar (Pro-Life);

(2) Petition for Prohibition, filed by the Alliance for the Family
Foundation Philippines, Inc., through its president, Atty. Maria
Concepcion S. Noche7 and several others8 in their personal
capacities as citizens and on behalf of the generations unborn
(ALFI);
(3) Petition for Certiorari,9 filed by the Task Force for Family and
Life Visayas, Inc., and Valeriano S. Avila, in their capacities as
citizens and taxpayers (Task Force Family);

(11) Petition for Prohibition,26 filed by Millennium Saint Foundation,

Inc.,27 Attys. Ramon Pedrosa, Cita Borromeo-Garcia, Stella
Acedera, and Berteni Catalufia Causing, in their capacities as
citizens, taxpayers and members of the Bar (MSF);
(12) Petition for Certiorari and Prohibition,28 filed by John Walter B.
Juat and several others,29 in their capacities as citizens (Juat) ;
(13) Petition for Certiorari and Prohibition,30 filed by Couples for
Christ Foundation, Inc. and several others,31in their capacities as
citizens (CFC);

(4) Petition for Certiorari and Prohibition, 10 filed by Serve Life

Cagayan De Oro City, Inc.,11 Rosevale Foundation, Inc.,12 a
domestic, privately-owned educational institution, and several
others,13 in their capacities as citizens (Serve Life);

(14) Petition for Prohibition32 filed by Almarim Centi Tillah and

Abdulhussein M. Kashim in their capacities as citizens and
taxpayers (Tillah); and

(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his capacity as a

citizen (Bugarin);

(15) Petition-In-Intervention,33 filed by Atty. Samson S. Alcantara in

his capacity as a citizen and a taxpayer (Alcantara); and

(6) Petition for Certiorari and Prohibition, 15 filed by Eduardo Olaguer

and the Catholic Xybrspace Apostolate of the Philippines,16 in their
capacities as a citizens and taxpayers (Olaguer);

(16) Petition-In-Intervention,34 filed by Buhay Hayaang Yumabong

(B UHAY) , an accredited political party.

(7) Petition for Certiorari and Prohibition, 17 filed by the Philippine

Alliance of Xseminarians Inc.,18 and several others19 in their
capacities as citizens and taxpayers (PAX);
(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and several
others,21 in their capacities as citizens and taxpayers (Echavez);
(9) Petition for Certiorari and Prohibition,22 filed by spouses
Francisco and Maria Fenny C. Tatad and Atty. Alan F. Paguia, in
their capacities as citizens, taxpayers and on behalf of those yet

A perusal of the foregoing petitions shows that the petitioners are assailing
the constitutionality of RH Law on the following GROUNDS:
The RH Law violates the right to life of the unborn. According to
the petitioners, notwithstanding its declared policy against abortion,
the implementation of the RH Law would authorize the purchase of
hormonal contraceptives, intra-uterine devices and injectables
which are abortives, in violation of Section 12, Article II of the
Constitution which guarantees protection of both the life of the
mother and the life of the unborn from conception.35

 The RH Law violates the right to health and the right to protection
against hazardous products. The petitioners posit that the RH Law
provides universal access to contraceptives which are hazardous to
one's health, as it causes cancer and other health problems.36
The RH Law violates the right to religious freedom. The petitioners
contend that the RH Law violates the constitutional guarantee
respecting religion as it authorizes the use of public funds for the
procurement of contraceptives. For the petitioners, the use of public
funds for purposes that are believed to be contrary to their beliefs is
included in the constitutional mandate ensuring religious freedom.37
It is also contended that the RH Law threatens conscientious objectors of
criminal prosecution, imprisonment and other forms of punishment, as it
compels medical practitioners 1] to refer patients who seek advice on
reproductive health programs to other doctors; and 2] to provide full and
correct information on reproductive health programs and service, although it
is against their religious beliefs and convictions.38
In this connection, Section 5 .23 of the Implementing Rules and Regulations
of the RH Law (RH-IRR),39 provides that skilled health professionals who are
public officers such as, but not limited to, Provincial, City, or Municipal Health
Officers, medical officers, medical specialists, rural health physicians,
hospital staff nurses, public health nurses, or rural health midwives, who are
specifically charged with the duty to implement these Rules, cannot be
considered as conscientious objectors.40
It is also argued that the RH Law providing for the formulation of mandatory
sex education in schools should not be allowed as it is an affront to their
religious beliefs.41
While the petit10ners recognize that the guarantee of religious freedom is
not absolute, they argue that the RH Law fails to satisfy the "clear and
present danger test" and the "compelling state interest test" to justify the
regulation of the right to free exercise of religion and the right to free
speech.42
The RH Law violates the constitutional provision on involuntary
servitude. According to the petitioners, the RH Law subjects
medical practitioners to involuntary servitude because, to be
accredited under the PhilHealth program, they are compelled to
provide forty-eight (48) hours of pro bona services for indigent

women, under threat of criminal prosecution, imprisonment and

other forms of punishment.43
The petitioners explain that since a majority of patients are covered by
PhilHealth, a medical practitioner would effectively be forced to render
reproductive health services since the lack of PhilHealth accreditation would
mean that the majority of the public would no longer be able to avail of the
practitioners services.44
The RH Law violates the right to equal protection of the law. It is
claimed that the RH Law discriminates against the poor as it makes
them the primary target of the government program that promotes
contraceptive use. The petitioners argue that, rather than promoting
reproductive health among the poor, the RH Law seeks to introduce
contraceptives that would effectively reduce the number of the
poor.45
The RH Law is "void-for-vagueness" in violation of the due
process clause of the Constitution. In imposing the penalty of
imprisonment and/or fine for "any violation," it is vague because it
does not define the type of conduct to be treated as "violation" of
the RH Law.46
In this connection, it is claimed that "Section 7 of the RH Law violates the
right to due process by removing from them (the people) the right to manage
their own affairs and to decide what kind of health facility they shall be and
what kind of services they shall offer."47 It ignores the management
prerogative inherent in corporations for employers to conduct their affairs in
accordance with their own discretion and judgment.
The RH Law violates the right to free speech. To compel a person
to explain a full range of family planning methods is plainly to curtail
his right to expound only his own preferred way of family planning.
The petitioners note that although exemption is granted to
institutions owned and operated by religious groups, they are still
forced to refer their patients to another healthcare facility willing to
perform the service or procedure.48
The RH Law intrudes into the zone of privacy of one's family
protected by the Constitution. It is contended that the RH Law
providing for mandatory reproductive health education intrudes
upon their constitutional right to raise their children in accordance
with their beliefs.49

It is claimed that, by giving absolute authority to the person who will undergo
reproductive health procedure, the RH Law forsakes any real dialogue
between the spouses and impedes the right of spouses to mutually decide
on matters pertaining to the overall well-being of their family. In the same
breath, it is also claimed that the parents of a child who has suffered a
miscarriage are deprived of parental authority to determine whether their
child should use contraceptives.50
The RH Law violates the constitutional principle of non-delegation
of legislative authority. The petitioners question the delegation by
Congress to the FDA of the power to determine whether a product
is non-abortifacient and to be included in the Emergency Drugs List
(EDL).51
The RH Law violates the one subject/one bill rule provision under
Section 26( 1 ), Article VI of the Constitution.52

question the RH Law; and 3] the petitions are essentially petitions for
declaratory relief over which the Court has no original jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the
assailed legislation took effect.
On March 19, 2013, after considering the issues and arguments raised, the
Court issued the Status Quo Ante Order (SQAO), enjoining the effects and
implementation of the assailed legislation for a period of one hundred and
twenty (120) days, or until July 17, 2013.62
On May 30, 2013, the Court held a preliminary conference with the counsels
of the parties to determine and/or identify the pertinent issues raised by the
parties and the sequence by which these issues were to be discussed in the
oral arguments. On July 9 and 23, 2013, and on August 6, 13, and 27, 2013,
the cases were heard on oral argument. On July 16, 2013, the SQAO was
ordered extended until further orders of the Court.63

The RH Law violates Natural Law.53

The RH Law violates the principle of Autonomy of Local
Government Units (LGUs) and the Autonomous Region of Muslim
Mindanao {ARMM). It is contended that the RH Law, providing for
reproductive health measures at the local government level and the
ARMM, infringes upon the powers devolved to LGUs and the
ARMM under the Local Government Code and R.A . No. 9054.54
Various parties also sought and were granted leave to file their respective
comments-in-intervention in defense of the constitutionality of the RH Law.
Aside from the Office of the Solicitor General (OSG) which commented on
the petitions in behalf of the respondents,55 Congressman Edcel C.
Lagman,56 former officials of the Department of Health Dr. Esperanza I.
Cabral, Jamie Galvez-Tan, and Dr. Alberto G. Romualdez, 57 the Filipino
Catholic Voices for Reproductive Health (C4RH),58 Ana Theresa "Risa"
Hontiveros,59 and Atty. Joan De Venecia60 also filed their respective
Comments-in-Intervention in conjunction with several others. On June 4,
2013, Senator Pia Juliana S. Cayetano was also granted leave to
intervene.61
The respondents, aside from traversing the substantive arguments of the
petitioners, pray for the dismissal of the petitions for the principal reasons
that 1] there is no actual case or controversy and, therefore, the issues are
not yet ripe for judicial determination.; 2] some petitioners lack standing to

Thereafter, the Court directed the parties to submit their respective

memoranda within sixty (60) days and, at the same time posed several
questions for their clarification on some contentions of the parties.64
The Status Quo Ante
(Population, Contraceptive and Reproductive Health Laws
Prior to the RH Law
Long before the incipience of the RH Law, the country has allowed the sale,
dispensation and distribution of contraceptive drugs and devices. As far back
as June 18, 1966, the country enacted R.A. No. 4729 entitled "An Act to
Regu,late the Sale, Dispensation, and/or Distribution of Contraceptive Drugs
and Devices." Although contraceptive drugs and devices were allowed, they
could not be sold, dispensed or distributed "unless such sale, dispensation
and distribution is by a duly licensed drug store or pharmaceutical company
and with the prescription of a qualified medical practitioner."65
In addition, R.A. No. 5921,66 approved on June 21, 1969, contained
provisions relative to "dispensing of abortifacients or anti-conceptional
substances and devices." Under Section 37 thereof, it was provided that "no
drug or chemical product or device capable of provoking abortion or
preventing conception as classified by the Food and Drug Administration

shall be delivered or sold to any person without a proper prescription by a

duly licensed physician."
On December 11, 1967, the Philippines, adhering to the UN Declaration on
Population, which recognized that the population problem should be
considered as the principal element for long-term economic development,
enacted measures that promoted male vasectomy and tubal ligation to
mitigate population growth.67 Among these measures included R.A. No.
6365, approved on August 16, 1971, entitled "An Act Establishing a National
Policy on Population, Creating the Commission on Population and for Other
Purposes. " The law envisioned that "family planning will be made part of a
broad educational program; safe and effective means will be provided to
couples desiring to space or limit family size; mortality and morbidity rates
will be further reduced."
To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos
issued Presidential Decree. (P.D.) No. 79,68 dated December 8, 1972, which,
among others, made "family planning a part of a broad educational
program," provided "family planning services as a part of over-all health
care," and made "available all acceptable methods of contraception, except
abortion, to all Filipino citizens desirous of spacing, limiting or preventing
pregnancies."
Through the years, however, the use of contraceptives and family planning
methods evolved from being a component of demographic management, to
one centered on the promotion of public health, particularly, reproductive
health.69 Under that policy, the country gave priority to one's right to freely
choose the method of family planning to be adopted, in conformity with its
adherence to the commitments made in the International Conference on
Population and Development.70 Thus, on August 14, 2009, the country
enacted R.A. No. 9710 or "The Magna Carta for Women, " which, among
others, mandated the State to provide for comprehensive health services
and programs for women, including family planning and sex education.71
The RH Law
Despite the foregoing legislative measures, the population of the country
kept on galloping at an uncontrollable pace. From a paltry number of just
over 27 million Filipinos in 1960, the population of the country reached over
76 million in the year 2000 and over 92 million in 2010. 72 The executive and
the legislative, thus, felt that the measures were still not adequate. To rein in
the problem, the RH Law was enacted to provide Filipinos, especially the
poor and the marginalized, access and information to the full range of

modem family planning methods, and to ensure that its objective to provide
for the peoples' right to reproductive health be achieved. To make it more
effective, the RH Law made it mandatory for health providers to provide
information on the full range of modem family planning methods, supplies
and services, and for schools to provide reproductive health education. To
put teeth to it, the RH Law criminalizes certain acts of refusals to carry out its
mandates.
Stated differently, the RH Law is an enhancement measure to fortify and
make effective the current laws on contraception, women's health and
population control.
Prayer of the Petitioners - Maintain the Status Quo
The petitioners are one in praying that the entire RH Law be declared
unconstitutional. Petitioner ALFI, in particular, argues that the government
sponsored contraception program, the very essence of the RH Law, violates
the right to health of women and the sanctity of life, which the State is
mandated to protect and promote. Thus, ALFI prays that "the status quo ante
- the situation prior to the passage of the RH Law - must be maintained." 73 It
explains:
x x x. The instant Petition does not question contraception and
contraceptives per se. As provided under Republic Act No. 5921 and
Republic Act No. 4729, the sale and distribution of contraceptives are
prohibited unless dispensed by a prescription duly licensed by a physician.
What the Petitioners find deplorable and repugnant under the RH Law is the
role that the State and its agencies - the entire bureaucracy, from the cabinet
secretaries down to the barangay officials in the remotest areas of the
country - is made to play in the implementation of the contraception program
to the fullest extent possible using taxpayers' money. The State then will be
the funder and provider of all forms of family planning methods and the
implementer of the program by ensuring the widespread dissemination of,
and universal access to, a full range of family planning methods, devices
and supplies.74
ISSUES
After a scrutiny of the various arguments and contentions of the parties, the
Court has synthesized and refined them to the following principal issues:

I. PROCEDURAL: Whether the Court may exercise its power of judicial

review over the controversy.
1] Power of Judicial Review

Before delving into the constitutionality of the RH Law and its implementing
rules, it behooves the Court to resolve some procedural impediments.
I. PROCEDURAL ISSUE: Whether the Court can exercise its power of
judicial review over the controversy.

2] Actual Case or Controversy

The Power of Judicial Review
3] Facial Challenge
4] Locus Standi
5] Declaratory Relief
6] One Subject/One Title Rule
II. SUBSTANTIVE: Whether the RH law is unconstitutional:
1] Right to Life
2] Right to Health
3] Freedom of Religion and the Right to Free Speech
4] The Family
5] Freedom of Expression and Academic Freedom
6] Due Process
7] Equal Protection
8] Involuntary Servitude
9] Delegation of Authority to the FDA
10] Autonomy of Local Govemments/ARMM
DISCUSSION

In its attempt to persuade the Court to stay its judicial hand, the OSG asserts
that it should submit to the legislative and political wisdom of Congress and
respect the compromises made in the crafting of the RH Law, it being "a
product of a majoritarian democratic process" 75 and "characterized by an
inordinate amount of transparency."76 The OSG posits that the authority of
the Court to review social legislation like the RH Law by certiorari is "weak,"
since the Constitution vests the discretion to implement the constitutional
policies and positive norms with the political departments, in particular, with
Congress.77 It further asserts that in view of the Court's ruling in Southern
Hemisphere v. Anti-Terrorism Council,78 the remedies of certiorari and
prohibition utilized by the petitioners are improper to assail the validity of the
acts of the legislature.79
Moreover, the OSG submits that as an "as applied challenge," it cannot
prosper considering that the assailed law has yet to be enforced and applied
to the petitioners, and that the government has yet to distribute reproductive
health devices that are abortive. It claims that the RH Law cannot be
challenged "on its face" as it is not a speech-regulating measure.80
In many cases involving the determination of the constitutionality of the
actions of the Executive and the Legislature, it is often sought that the Court
temper its exercise of judicial power and accord due respect to the wisdom
of its co-equal branch on the basis of the principle of separation of powers.
To be clear, the separation of powers is a fundamental principle in our
system of government, which obtains not through express provision but by
actual division in our Constitution. Each department of the government has
exclusive cognizance of matters within its jurisdiction and is supreme within
its own sphere.81
Thus, the 1987 Constitution provides that: (a) the legislative power shall be
vested in the Congress of the Philippines;82 (b) the executive power shall be
vested in the President of the Philippines; 83 and (c) the judicial power shall
be vested in one Supreme Court and in such lower courts as may be
established by law.84 The Constitution has truly blocked out with deft strokes

and in bold lines, the allotment of powers among the three branches of
government.85

of discretion amounting to lack or excess of jurisdiction on the part of any

branch or instrumentality of the Government. [Emphases supplied]

In its relationship with its co-equals, the Judiciary recognizes the doctrine of
separation of powers which imposes upon the courts proper restraint, born
of the nature of their functions and of their respect for the other branches of
government, in striking down the acts of the Executive or the Legislature as
unconstitutional. Verily, the policy is a harmonious blend of courtesy and
caution.86

As far back as Tanada v. Angara,91 the Court has unequivocally declared that
certiorari, prohibition and mandamus are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper, acts
of legislative and executive officials, as there is no other plain, speedy or
adequate remedy in the ordinary course of law. This ruling was later on
applied in Macalintal v. COMELEC,92 Aldaba v. COMELEC,93 Magallona v.
Ermita,94 and countless others. In Tanada, the Court wrote:

It has also long been observed, however, that in times of social disquietude
or political instability, the great landmarks of the Constitution are apt to be
forgotten or marred, if not entirely obliterated.87 In order to address this, the
Constitution impresses upon the Court to respect the acts performed by a
co-equal branch done within its sphere of competence and authority, but at
the same time, allows it to cross the line of separation - but only at a very
limited and specific point - to determine whether the acts of the executive
and the legislative branches are null because they were undertaken with
grave abuse of discretion.88 Thus, while the Court may not pass upon
questions of wisdom, justice or expediency of the RH Law, it may do so
where an attendant unconstitutionality or grave abuse of discretion
results.89 The Court must demonstrate its unflinching commitment to protect
those cherished rights and principles embodied in the Constitution.
In this connection, it bears adding that while the scope of judicial power of
review may be limited, the Constitution makes no distinction as to the kind of
legislation that may be subject to judicial scrutiny, be it in the form of social
legislation or otherwise. The reason is simple and goes back to the earlier
point. The Court may pass upon the constitutionality of acts of the legislative
and the executive branches, since its duty is not to review their collective
wisdom but, rather, to make sure that they have acted in consonance with
their respective authorities and rights as mandated of them by the
Constitution. If after said review, the Court finds no constitutional violations
of any sort, then, it has no more authority of proscribing the actions under
review.90 This is in line with Article VIII, Section 1 of the Constitution which
expressly provides:

In seeking to nullify an act of the Philippine Senate on the ground that it

contravenes the Constitution, the petition no doubt raises a justiciable
controversy. Where an action of the legislative branch is seriously alleged to
have infringed the Constitution, it becomes not only the right but in fact the
duty of the judiciary to settle the dispute. "The question thus posed is judicial
rather than political. The duty (to adjudicate) remains to assure that the
supremacy of the Constitution is upheld. " Once a "controversy as to the
application or interpretation of constitutional provision is raised before this
Court (as in the instant case), it becomes a legal issue which the Court is
bound by constitutional mandate to decide. [Emphasis supplied]
In the scholarly estimation of former Supreme Court Justice Florentino
Feliciano, "judicial review is essential for the maintenance and enforcement
of the separation of powers and the balancing of powers among the three
great departments of government through the definition and maintenance of
the boundaries of authority and control between them. To him, judicial review
is the chief, indeed the only, medium of participation - or instrument of
intervention - of the judiciary in that balancing operation.95
Lest it be misunderstood, it bears emphasizing that the Court does not have
the unbridled authority to rule on just any and every claim of constitutional
violation. Jurisprudence is replete with the rule that the power of judicial
review is limited by four exacting requisites, viz : (a) there must be an actual
case or controversy; (b) the petitioners must possess locus standi; (c) the
question of constitutionality must be raised at the earliest opportunity; and
(d) the issue of constitutionality must be the lis mota of the case.96

Section 1. The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.

Actual Case or Controversy

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse

Proponents of the RH Law submit that the subj ect petitions do not present
any actual case or controversy because the RH Law has yet to be
implemented.97 They claim that the questions raised by the petitions are not

yet concrete and ripe for adjudication since no one has been charged with
violating any of its provisions and that there is no showing that any of the
petitioners' rights has been adversely affected by its operation. 98 In short, it is
contended that judicial review of the RH Law is premature.
An actual case or controversy means an existing case or controversy that is
appropriate or ripe for determination, not conjectural or anticipatory, lest the
decision of the court would amount to an advisory opinion. 99 The rule is that
courts do not sit to adjudicate mere academic questions to satisfy scholarly
interest, however intellectually challenging. The controversy must be
justiciable-definite and concrete, touching on the legal relations of parties
having adverse legal interests. In other words, the pleadings must show an
active antagonistic assertion of a legal right, on the one hand, and a denial
thereof, on the other; that is, it must concern a real, tangible and not merely
a theoretical question or issue. There ought to be an actual and substantial
controversy admitting of specific relief through a decree conclusive in nature,
as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts.100
Corollary to the requirement of an actual case or controversy is the
requirement of ripeness.101 A question is ripe for adjudication when the act
being challenged has had a direct adverse effect on the individual
challenging it. For a case to be considered ripe for adjudication, it is a
prerequisite that something has then been accomplished or performed by
either branch before a court may come into the picture, and the petitioner
must allege the existence of an immediate or threatened injury to himself as
a result of the challenged action. He must show that he has sustained or is
immediately in danger of sustaining some direct injury as a result of the act
complained of102
In The Province of North Cotabato v. The Government of the Republic of the
Philippines,103 where the constitutionality of an unimplemented Memorandum
of Agreement on the Ancestral Domain (MOA-AD) was put in question, it
was argued that the Court has no authority to pass upon the issues raised
as there was yet no concrete act performed that could possibly violate the
petitioners' and the intervenors' rights. Citing precedents, the Court ruled
that the fact of the law or act in question being not yet effective does not
negate ripeness. Concrete acts under a law are not necessary to render the
controversy ripe. Even a singular violation of the Constitution and/or the law
is enough to awaken judicial duty.
In this case, the Court is of the view that an actual case or controversy exists
and that the same is ripe for judicial determination. Considering that the RH

Law and its implementing rules have already taken effect and that budgetary
measures to carry out the law have already been passed, it is evident that
the subject petitions present a justiciable controversy. As stated earlier, when
an action of the legislative branch is seriously alleged to have infringed the
Constitution, it not only becomes a right, but also a duty of the Judiciary to
settle the dispute.104
Moreover, the petitioners have shown that the case is so because medical
practitioners or medical providers are in danger of being criminally
prosecuted under the RH Law for vague violations thereof, particularly public
health officers who are threatened to be dismissed from the service with
forfeiture of retirement and other benefits. They must, at least, be heard on
the matter NOW.
Facial Challenge
The OSG also assails the propriety of the facial challenge lodged by the
subject petitions, contending that the RH Law cannot be challenged "on its
face" as it is not a speech regulating measure.105
The Court is not persuaded.
In United States (US) constitutional law, a facial challenge, also known as a
First Amendment Challenge, is one that is launched to assail the validity of
statutes concerning not only protected speech, but also all other rights in the
First Amendment.106 These include religious freedom, freedom of the press,
and the right of the people to peaceably assemble, and to petition the
Government for a redress of grievances.107 After all, the fundamental right to
religious freedom, freedom of the press and peaceful assembly are but
component rights of the right to one's freedom of expression, as they are
modes which one's thoughts are externalized.
In this jurisdiction, the application of doctrines originating from the U.S. has
been generally maintained, albeit with some modifications. While this Court
has withheld the application of facial challenges to strictly penal statues, 108 it
has expanded its scope to cover statutes not only regulating free speech,
but also those involving religious freedom, and other fundamental
rights.109 The underlying reason for this modification is simple. For unlike its
counterpart in the U.S., this Court, under its expanded jurisdiction, is
mandated by the Fundamental Law not only to settle actual controversies
involving rights which are legally demandable and enforceable, but also to
determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or

instrumentality of the Government.110 Verily, the framers of Our Constitution

envisioned a proactive Judiciary, ever vigilant with its duty to maintain the
supremacy of the Constitution.
Consequently, considering that the foregoing petitions have seriously alleged
that the constitutional human rights to life, speech and religion and other
fundamental rights mentioned above have been violated by the assailed
legislation, the Court has authority to take cognizance of these kindred
petitions and to determine if the RH Law can indeed pass constitutional
scrutiny. To dismiss these petitions on the simple expedient that there exist
no actual case or controversy, would diminish this Court as a reactive branch
of government, acting only when the Fundamental Law has been
transgressed, to the detriment of the Filipino people.

Notwithstanding, the Court leans on the doctrine that "the rule on standing is
a matter of procedure, hence, can be relaxed for non-traditional plaintiffs like
ordinary citizens, taxpayers, and legislators when the public interest so
requires, such as when the matter is of transcendental importance, of
overreaching significance to society, or of paramount public interest."116
In Coconut Oil Refiners Association, Inc. v. Torres, 117 the Court held that in
cases of paramount importance where serious constitutional questions are
involved, the standing requirement may be relaxed and a suit may be
allowed to prosper even where there is no direct injury to the party claiming
the right of judicial review. In the first Emergency Powers Cases,118 ordinary
citizens and taxpayers were allowed to question the constitutionality of
several executive orders although they had only an indirect and general
interest shared in common with the public.

Locus Standi
The OSG also attacks the legal personality of the petitioners to file their
respective petitions. It contends that the "as applied challenge" lodged by
the petitioners cannot prosper as the assailed law has yet to be enforced
and applied against them,111 and the government has yet to distribute
reproductive health devices that are abortive.112
The petitioners, for their part, invariably invoke the "transcendental
importance" doctrine and their status as citizens and taxpayers in
establishing the requisite locus standi.
Locus standi or legal standing is defined as a personal and substantial
interest in a case such that the party has sustained or will sustain direct
injury as a result of the challenged governmental act. 113 It requires a
personal stake in the outcome of the controversy as to assure the concrete
adverseness which sharpens the presentation of issues upon which the
court so largely depends for illumination of difficult constitutional questions.114
In relation to locus standi, the "as applied challenge" embodies the rule that
one can challenge the constitutionality of a statute only if he asserts a
violation of his own rights. The rule prohibits one from challenging the
constitutionality of the statute grounded on a violation of the rights of third
persons not before the court. This rule is also known as the prohibition
against third-party standing.115
Transcendental Importance

With these said, even if the constitutionality of the RH Law may not be
assailed through an "as-applied challenge, still, the Court has time and again
acted liberally on the locus s tandi requirement. It has accorded certain
individuals standing to sue, not otherwise directly injured or with material
interest affected by a Government act, provided a constitutional issue of
transcendental importance is invoked. The rule on locus standi is, after all, a
procedural technicality which the Court has, on more than one occasion,
waived or relaxed, thus allowing non-traditional plaintiffs, such as concerned
citizens, taxpayers, voters or legislators, to sue in the public interest, albeit
they may not have been directly injured by the operation of a law or any
other government act. As held in Jaworski v. PAGCOR:119
Granting arguendo that the present action cannot be properly treated as a
petition for prohibition, the transcendental importance of the issues involved
in this case warrants that we set aside the technical defects and take
primary jurisdiction over the petition at bar. One cannot deny that the issues
raised herein have potentially pervasive influence on the social and moral
well being of this nation, specially the youth; hence, their proper and just
determination is an imperative need. This is in accordance with the wellentrenched principle that rules of procedure are not inflexible tools designed
to hinder or delay, but to facilitate and promote the administration of justice.
Their strict and rigid application, which would result in technicalities that tend
to frustrate, rather than promote substantial justice, must always be
eschewed. (Emphasis supplied)
In view of the seriousness, novelty and weight as precedents, not only to the
public, but also to the bench and bar, the issues raised must be resolved for
the guidance of all. After all, the RH Law drastically affects the constitutional

provisions on the right to life and health, the freedom of religion and
expression and other constitutional rights. Mindful of all these and the fact
that the issues of contraception and reproductive health have already
caused deep division among a broad spectrum of society, the Court
entertains no doubt that the petitions raise issues of transcendental
importance warranting immediate court adjudication. More importantly,
considering that it is the right to life of the mother and the unborn which is
primarily at issue, the Court need not wait for a life to be taken away before
taking action.

claims to save lives and keep our women and children healthy, it also
promotes pregnancy-preventing products. As stated earlier, the RH Law
emphasizes the need to provide Filipinos, especially the poor and the
marginalized, with access to information on the full range of modem family
planning products and methods. These family planning methods, natural or
modem, however, are clearly geared towards the prevention of pregnancy.

The Court cannot, and should not, exercise judicial restraint at this time
when rights enshrined in the Constitution are being imperilled to be violated.
To do so, when the life of either the mother or her child is at stake, would
lead to irreparable consequences.

It cannot be denied that the measure also seeks to provide pre-natal and
post-natal care as well. A large portion of the law, however, covers the
dissemination of information and provisions on access to medically-safe,
non-abortifacient, effective, legal, affordable, and quality reproductive health
care services, methods, devices, and supplies, which are all intended to
prevent pregnancy.

Declaratory Relief
The respondents also assail the petitions because they are essentially
petitions for declaratory relief over which the Court has no original
jurisdiction.120 Suffice it to state that most of the petitions are praying for
injunctive reliefs and so the Court would just consider them as petitions for
prohibition under Rule 65, over which it has original jurisdiction. Where the
case has far-reaching implications and prays for injunctive reliefs, the Court
may consider them as petitions for prohibition under Rule 65.121

For said reason, the manifest underlying objective of the RH Law is to

reduce the number of births in the country.

The Court, thus, agrees with the petitioners' contention that the whole idea of
contraception pervades the entire RH Law. It is, in fact, the central idea of
the RH Law.126 Indeed, remove the provisions that refer to contraception or
are related to it and the RH Law loses its very foundation. 127 As earlier
explained, "the other positive provisions such as skilled birth attendance,
maternal care including pre-and post-natal services, prevention and
management of reproductive tract infections including HIV/AIDS are already
provided for in the Magna Carta for Women."128

One Subject-One Title

The petitioners also question the constitutionality of the RH Law, claiming
that it violates Section 26(1 ), Article VI of the Constitution, 122 prescribing the
one subject-one title rule. According to them, being one for reproductive
health with responsible parenthood, the assailed legislation violates the
constitutional standards of due process by concealing its true intent - to act
as a population control measure.123
To belittle the challenge, the respondents insist that the RH Law is not a birth
or population control measure,124 and that the concepts of "responsible
parenthood" and "reproductive health" are both interrelated as they are
inseparable.125
Despite efforts to push the RH Law as a reproductive health law, the Court
sees it as principally a population control measure. The corpus of the RH
Law is geared towards the reduction of the country's population. While it

Be that as it may, the RH Law does not violate the one subject/one bill rule.
In Benjamin E. Cawaling, Jr. v. The Commission on Elections and Rep.
Francis Joseph G Escudero, it was written:
It is well-settled that the "one title-one subject" rule does not require the
Congress to employ in the title of the enactment language of such precision
as to mirror, fully index or catalogue all the contents and the minute details
therein. The rule is sufficiently complied with if the title is comprehensive
enough as to include the general object which the statute seeks to effect,
and where, as here, the persons interested are informed of the nature,
scope and consequences of the proposed law and its operation. Moreover,
this Court has invariably adopted a liberal rather than technical construction
of the rule "so as not to cripple or impede legislation." [Emphases supplied]
In this case, a textual analysis of the various provisions of the law shows that
both "reproductive health" and "responsible parenthood" are interrelated and

germane to the overriding objective to control the population growth. As

expressed in the first paragraph of Section 2 of the RH Law:
SEC. 2. Declaration of Policy. - The State recognizes and guarantees the
human rights of all persons including their right to equality and
nondiscrimination of these rights, the right to sustainable human
development, the right to health which includes reproductive health, the right
to education and information, and the right to choose and make decisions for
themselves in accordance with their religious convictions, ethics, cultural
beliefs, and the demands of responsible parenthood.
The one subject/one title rule expresses the principle that the title of a law
must not be "so uncertain that the average person reading it would not be
informed of the purpose of the enactment or put on inquiry as to its contents,
or which is misleading, either in referring to or indicating one subject where
another or different one is really embraced in the act, or in omitting any
expression or indication of the real subject or scope of the act."129
Considering the close intimacy between "reproductive health" and
"responsible parenthood" which bears to the attainment of the goal of
achieving "sustainable human development" as stated under its terms, the
Court finds no reason to believe that Congress intentionally sought to
deceive the public as to the contents of the assailed legislation.
II - SUBSTANTIVE ISSUES:
1-The
Right
Position of the Petitioners

to

They argue that even if Section 9 of the RH Law allows only "nonabortifacient" hormonal contraceptives, intrauterine devices, injectables and
other safe, legal, non-abortifacient and effective family planning products
and supplies, medical research shows that contraceptives use results in
abortion as they operate to kill the fertilized ovum which already has life.131
As it opposes the initiation of life, which is a fundamental human good, the
petitioners assert that the State sanction of contraceptive use contravenes
natural law and is an affront to the dignity of man.132
Finally, it is contended that since Section 9 of the RH Law requires the Food
and Drug Administration (FDA) to certify that the product or supply is not to
be used as an abortifacient, the assailed legislation effectively confirms that
abortifacients are not prohibited. Also considering that the FDA is not the
agency that will actually supervise or administer the use of these products
and supplies to prospective patients, there is no way it can truthfully make a
certification that it shall not be used for abortifacient purposes.133
Position of the Respondents
For their part, the defenders of the RH Law point out that the intent of the
Framers of the Constitution was simply the prohibition of abortion. They
contend that the RH Law does not violate the Constitution since the said law
emphasizes that only "non-abortifacient" reproductive health care services,
methods, devices products and supplies shall be made accessible to the
public.134

Life

The petitioners assail the RH Law because it violates the right to life and
health of the unborn child under Section 12, Article II of the Constitution. The
assailed legislation allowing access to abortifacients/abortives effectively
sanctions abortion.130
According to the petitioners, despite its express terms prohibiting abortion,
Section 4(a) of the RH Law considers contraceptives that prevent the
fertilized ovum to reach and be implanted in the mother's womb as an
abortifacient; thus, sanctioning contraceptives that take effect after
fertilization and prior to implantation, contrary to the intent of the Framers of
the Constitution to afford protection to the fertilized ovum which already has
life.

According to the OSG, Congress has made a legislative determination that

contraceptives are not abortifacients by enacting the RH Law. As the RH
Law was enacted with due consideration to various studies and
consultations with the World Health Organization (WHO) and other experts
in the medical field, it is asserted that the Court afford deference and respect
to such a determination and pass judgment only when a particular drug or
device is later on determined as an abortive.135
For his part, respondent Lagman argues that the constitutional protection of
one's right to life is not violated considering that various studies of the WHO
show that life begins from the implantation of the fertilized ovum.
Consequently, he argues that the RH Law is constitutional since the law
specifically provides that only contraceptives that do not prevent the
implantation of the fertilized ovum are allowed.136

The Court's Position

When Life Begins*

It is a universally accepted principle that every human being enjoys the right
to life.137

Majority of the Members of the Court are of the position that the question of
when life begins is a scientific and medical issue that should not be decided,
at this stage, without proper hearing and evidence. During the deliberation,
however, it was agreed upon that the individual members of the Court could
express their own views on this matter.

Even if not formally established, the right to life, being grounded on natural
law, is inherent and, therefore, not a creation of, or dependent upon a
particular law, custom, or belief. It precedes and transcends any authority or
the laws of men.
In this jurisdiction, the right to life is given more than ample protection.
Section 1, Article III of the Constitution provides:
Section 1. No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the
laws.
As expounded earlier, the use of contraceptives and family planning
methods in the Philippines is not of recent vintage. From the enactment of
R.A. No. 4729, entitled "An Act To Regulate The Sale, Dispensation, and/or
Distribution of Contraceptive Drugs and Devices "on June 18, 1966,
prescribing rules on contraceptive drugs and devices which prevent
fertilization,138 to the promotion of male vasectomy and tubal ligation, 139 and
the ratification of numerous international agreements, the country has long
recognized the need to promote population control through the use of
contraceptives in order to achieve long-term economic development.
Through the years, however, the use of contraceptives and other family
planning methods evolved from being a component of demographic
management, to one centered on the promotion of public health, particularly,
reproductive health.140
This has resulted in the enactment of various measures promoting women's
rights and health and the overall promotion of the family's well-being. Thus,
aside from R.A. No. 4729, R.A. No. 6365 or "The Population Act of the
Philippines" and R.A. No. 9710, otherwise known as the "The Magna Carta
of Women" were legislated. Notwithstanding this paradigm shift, the
Philippine national population program has always been grounded two
cornerstone principles: "principle of no-abortion" and the "principle of noncoercion."141 As will be discussed later, these principles are not merely
grounded on administrative policy, but rather, originates from the
constitutional protection expressly provided to afford protection to life and
guarantee religious freedom.

In this regard, the ponente, is of the strong view that life begins at
fertilization.
In answering the question of when life begins, focus should be made on the
particular phrase of Section 12 which reads:
Section 12. The State recognizes the sanctity of family life and shall protect
and strengthen the family as a basic autonomous social institution. It shall
equally protect the life of the mother and the life of the unborn from
conception. The natural and primary right and duty of parents in the rearing
of the youth for civic efficiency and the development of moral character shall
receive the support of the Government.
Textually, the Constitution affords protection to the unborn from conception.
This is undisputable because before conception, there is no unborn to speak
of. For said reason, it is no surprise that the Constitution is mute as to any
proscription prior to conception or when life begins. The problem has arisen
because, amazingly, there are quarters who have conveniently disregarded
the scientific fact that conception is reckoned from fertilization. They are
waving the view that life begins at implantation. Hence, the issue of when life
begins.
In a nutshell, those opposing the RH Law contend that conception is
synonymous with "fertilization" of the female ovum by the male sperm. 142 On
the other side of the spectrum are those who assert that conception refers to
the "implantation" of the fertilized ovum in the uterus.143
Plain and Legal Meaning
It is a canon in statutory construction that the words of the Constitution
should be interpreted in their plain and ordinary meaning. As held in the
recent case of Chavez v. Judicial Bar Council:144

One of the primary and basic rules in statutory construction is that where the
words of a statute are clear, plain, and free from ambiguity, it must be given
its literal meaning and applied without attempted interpretation. It is a wellsettled principle of constitutional construction that the language employed in
the Constitution must be given their ordinary meaning except where
technical terms are employed. As much as possible, the words of the
Constitution should be understood in the sense they have in common use.
What it says according to the text of the provision to be construed compels
acceptance and negates the power of the courts to alter it, based on the
postulate that the framers and the people mean what they say. Verba legis
non est recedendum - from the words of a statute there should be no
departure.
The raison d' etre for the rule is essentially two-fold: First, because it is
assumed that the words in which constitutional provisions are couched
express the objective sought to be attained; and second, because the
Constitution is not primarily a lawyer's document but essentially that of the
people, in whose consciousness it should ever be present as an important
condition for the rule of law to prevail.
In conformity with the above principle, the traditional meaning of the word
"conception" which, as described and defined by all reliable and reputable
sources, means that life begins at fertilization.
Webster's Third New International Dictionary describes it as the act of
becoming pregnant, formation of a viable zygote; the fertilization that results
in a new entity capable of developing into a being like its parents.145
Black's Law Dictionary gives legal meaning to the term "conception" as the
fecundation of the female ovum by the male spermatozoon resulting in
human life capable of survival and maturation under normal conditions.146
Even in jurisprudence, an unborn child has already a legal personality. In
Continental Steel Manufacturing Corporation v. Hon. Accredited Voluntary
Arbitrator Allan S. Montano,147 it was written:
Life is not synonymous with civil personality. One need not acquire civil
personality first before he/she could die. Even a child inside the womb
already has life. No less than the Constitution recognizes the life of the
unborn from conception, that the State must protect equally with the life of
the mother. If the unborn already has life, then the cessation thereof even
prior to the child being delivered, qualifies as death. [Emphases in the
original]

In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the US

Supreme Court, said that the State "has respect for human life at all stages
in the pregnancy" and "a legitimate and substantial interest in preserving and
promoting fetal life." Invariably, in the decision, the fetus was referred to, or
cited, as a baby or a child.149
Intent of the Framers
Records of the Constitutional Convention also shed light on the intention of
the Framers regarding the term "conception" used in Section 12, Article II of
the Constitution. From their deliberations, it clearly refers to the moment of
"fertilization." The records reflect the following:
Rev. Rigos: In Section 9, page 3, there is a sentence which reads:
"The State shall equally protect the life of the mother and the life of the
unborn from the moment of conception."
When is the moment of conception?
xxx
Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is
fertilized by the sperm that there is human life. x x x.150
xxx
As to why conception is reckoned from fertilization and, as such, the
beginning of human life, it was explained:
Mr. Villegas: I propose to review this issue in a biological manner. The first
question that needs to be answered is: Is the fertilized ovum alive?
Biologically categorically says yes, the fertilized ovum is alive. First of all, like
all living organisms, it takes in nutrients which it processes by itself. It begins
doing this upon fertilization. Secondly, as it takes in these nutrients, it grows
from within. Thirdly, it multiplies itself at a geometric rate in the continuous
process of cell division. All these processes are vital signs of life. Therefore,
there is no question that biologically the fertilized ovum has life.
The second question: Is it human? Genetics gives an equally categorical
"yes." At the moment of conception, the nuclei of the ovum and the sperm

rupture. As this happens 23 chromosomes from the ovum combine with 23

chromosomes of the sperm to form a total of 46 chromosomes. A
chromosome count of 46 is found only - and I repeat, only in human cells.
Therefore, the fertilized ovum is human.

When it speaks of "from the moment of conception," does this mean when
the egg meets the sperm?

Since these questions have been answered affirmatively, we must conclude

that if the fertilized ovum is both alive and human, then, as night follows day,
it must be human life. Its nature is human.151

Mr. Gascon: Therefore that does not leave to Congress the right to
determine whether certain contraceptives that we know today are
abortifacient or not because it is a fact that some of the so-called
contraceptives deter the rooting of the ovum in the uterus. If fertilization has
already occurred, the next process is for the fertilized ovum to travel towards
the uterus and to take root. What happens with some contraceptives is that
they stop the opportunity for the fertilized ovum to reach the uterus.
Therefore, if we take the provision as it is proposed, these so called
contraceptives should be banned.

Why the Constitution used the phrase "from the moment of conception" and
not "from the moment of fertilization" was not because of doubt when human
life begins, but rather, because:
Mr. Tingson: x x x x the phrase from the moment of conception" was
described by us here before with the scientific phrase "fertilized ovum" may
be beyond the comprehension of some people; we want to use the simpler
phrase "from the moment of conception."152
Thus, in order to ensure that the fertilized ovum is given ample protection
under the Constitution, it was discussed:

Mr. Villegas: Yes, the ovum is fertilized by the sperm.

Mr. Villegas: Yes, if that physical fact is established, then that is what is
called abortifacient and, therefore, would be unconstitutional and should be
banned under this provision.

Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose
of writing a Constitution, without specifying "from the moment of conception."

Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to

state whether or not these certain contraceptives are abortifacient.
Scientifically and based on the provision as it is now proposed, they are
already considered abortifacient.154

Mr. Davide: I would not subscribe to that particular view because according
to the Commissioner's own admission, he would leave it to Congress to
define when life begins. So, Congress can define life to begin from six
months after fertilization; and that would really be very, very, dangerous. It is
now determined by science that life begins from the moment of conception.
There can be no doubt about it. So we should not give any doubt to
Congress, too.153

From the deliberations above-quoted, it is apparent that the Framers of the

Constitution emphasized that the State shall provide equal protection to both
the mother and the unborn child from the earliest opportunity of life, that is,
upon fertilization or upon the union of the male sperm and the female ovum.
It is also apparent is that the Framers of the Constitution intended that to
prohibit Congress from enacting measures that would allow it determine
when life begins.

Upon further inquiry, it was asked:

Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that
point. Actually, that is one of the questions I was going to raise during the
period of interpellations but it has been expressed already. The provision, as
proposed right now states:

Equally apparent, however, is that the Framers of the Constitution did not
intend to ban all contraceptives for being unconstitutional. In fact,
Commissioner Bernardo Villegas, spearheading the need to have a
constitutional provision on the right to life, recognized that the determination
of whether a contraceptive device is an abortifacient is a question of fact
which should be left to the courts to decide on based on established
evidence.155

The State shall equally protect the life of the mother and the life of the
unborn from the moment of conception.

From the discussions above, contraceptives that kill or destroy the fertilized
ovum should be deemed an abortive and thus prohibited. Conversely,

contraceptives that actually prevent the union of the male sperm and the
female ovum, and those that similarly take action prior to fertilization should
be deemed non-abortive, and thus, constitutionally permissible.

Before the union of the eggs, egg and the sperm, there is no life yet.

As emphasized by the Framers of the Constitution:

There is no life.

xxx

Atty. Noche:

xxx

xxx

Justice Bersamin:

Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am prolife, to the point that I would like not only to protect the life of the unborn, but
also the lives of the millions of people in the world by fighting for a nuclearfree world. I would just like to be assured of the legal and pragmatic
implications of the term "protection of the life of the unborn from the moment
of conception." I raised some of these implications this afternoon when I
interjected in the interpellation of Commissioner Regalado. I would like to
ask that question again for a categorical answer.

So, there is no life to be protected.

I mentioned that if we institutionalize the term "the life of the unborn from the
moment of conception" we are also actually saying "no," not "maybe," to
certain contraceptives which are already being encouraged at this point in
time. Is that the sense of the committee or does it disagree with me?

Under Section 12, yes.

Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be

preventive. There is no unborn yet. That is yet unshaped.

So you have no objection to condoms?

Justice Bersamin:
To be protected.
Atty. Noche:

Justice Bersamin:

Atty. Noche:
Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some
contraceptives, such as the intra-uterine device which actually stops the egg
which has already been fertilized from taking route to the uterus. So if we
say "from the moment of conception," what really occurs is that some of
these contraceptives will have to be unconstitutionalized.
Mr. Azcuna: Yes, to the extent that it is after the fertilization.
Mr. Gascon: Thank you, Mr. Presiding Officer.156
The fact that not all contraceptives are prohibited by the 1987 Constitution is
even admitted by petitioners during the oral arguments. There it was
conceded that tubal ligation, vasectomy, even condoms are not classified as
abortifacients.157
Atty. Noche:

Not under Section 12, Article II.

Justice Bersamin:
Even if there is already information that condoms sometimes have porosity?
Atty. Noche:
Well, yes, Your Honor, there are scientific findings to that effect, Your Honor,
but I am discussing here Section 12, Article II, Your Honor, yes.
Justice Bersamin:
Alright.

Atty. Noche:
And it's not, I have to admit it's not an abortifacient, Your Honor.158
Medical Meaning
That conception begins at fertilization is not bereft of medical foundation.
Mosby s Medical, Nursing, and Allied Health Dictionary defines conception
as "the beginning of pregnancy usually taken to be the instant a
spermatozoon enters an ovum and forms a viable zygote."159
It describes fertilization as "the union of male and female gametes to form a
zygote from which the embryo develops."160
The Textbook of Obstetrics (Physiological & Pathological Obstetrics), 161 used
by medical schools in the Philippines, also concludes that human life (human
person) begins at the moment of fertilization with the union of the egg and
the sperm resulting in the formation of a new individual, with a unique
genetic composition that dictates all developmental stages that ensue.
Similarly, recent medical research on the matter also reveals that: "Human
development begins after the union of male and female gametes or germ
cells during a process known as fertilization (conception). Fertilization is a
sequence of events that begins with the contact of a sperm (spermatozoon)
with a secondary oocyte (ovum) and ends with the fusion of their pronuclei
(the haploid nuclei of the sperm and ovum) and the mingling of their
chromosomes to form a new cell. This fertilized ovum, known as a zygote, is
a large diploid cell that is the beginning, or primordium, of a human being."162
The authors of Human Embryology & Teratology163 mirror the same position.
They wrote: "Although life is a continuous process, fertilization is a critical
landmark because, under ordinary circumstances, a new, genetically distinct
human organism is thereby formed.... The combination of 23 chromosomes
present in each pronucleus results in 46 chromosomes in the zygote. Thus
the diploid number is restored and the embryonic genome is formed. The
embryo now exists as a genetic unity."
In support of the RH Bill, The Philippine Medical Association came out with a
"Paper on the Reproductive Health Bill (Responsible Parenthood Bill)" and
therein concluded that:
CONCLUSION

The PMA throws its full weight in supporting the RH Bill at the same time that
PMA maintains its strong position that fertilization is sacred because it is at
this stage that conception, and thus human life, begins. Human lives are
sacred from the moment of conception, and that destroying those new lives
is never licit, no matter what the purported good outcome would be. In terms
of biology and human embryology, a human being begins immediately at
fertilization and after that, there is no point along the continuous line of
human embryogenesis where only a "potential" human being can be posited.
Any philosophical, legal, or political conclusion cannot escape this objective
scientific fact.
The scientific evidence supports the conclusion that a zygote is a human
organism and that the life of a new human being commences at a
scientifically well defined "moment of conception." This conclusion is
objective, consistent with the factual evidence, and independent of any
specific ethical, moral, political, or religious view of human life or of human
embryos.164
Conclusion:
Fertilization

The

Moment

of

Conception

is

Reckoned

from

In all, whether it be taken from a plain meaning, or understood under

medical parlance, and more importantly, following the intention of the
Framers of the Constitution, the undeniable conclusion is that a zygote is a
human organism and that the life of a new human being commences at a
scientifically well-defined moment of conception, that is, upon fertilization.
For the above reasons, the Court cannot subscribe to the theory advocated
by Hon. Lagman that life begins at implantation.165 According to him,
"fertilization and conception are two distinct and successive stages in the
reproductive process. They are not identical and synonymous." 166 Citing a
letter of the WHO, he wrote that "medical authorities confirm that the
implantation of the fertilized ovum is the commencement of conception and it
is only after implantation that pregnancy can be medically detected."167
This theory of implantation as the beginning of life is devoid of any legal or
scientific mooring. It does not pertain to the beginning of life but to the
viability of the fetus. The fertilized ovum/zygote is not an inanimate object - it
is
a
living
human
being
complete
with
DNA
and
46
chromosomes.168 Implantation has been conceptualized only for
convenience by those who had population control in mind. To adopt it would
constitute textual infidelity not only to the RH Law but also to the
Constitution.

Not surprisingly, even the OSG does not support this position.

xxx.

If such theory would be accepted, it would unnervingly legitimize the

utilization of any drug or device that would prevent the implantation of the
fetus at the uterine wall. It would be provocative and further aggravate
religious-based divisiveness.

(q) Reproductive health care refers to the access to a full range of methods,
facilities, services and supplies that contribute to reproductive health and
well-being by addressing reproductive health-related problems. It also
includes sexual health, the purpose of which is the enhancement of life and
personal relations. The elements of reproductive health care include the
following:

It would legally permit what the Constitution proscribes - abortion and

abortifacients.

xxx.
The RH Law and Abortion
(3) Proscription of abortion and management of abortion complications;
The clear and unequivocal intent of the Framers of the 1987 Constitution in
protecting the life of the unborn from conception was to prevent the
Legislature from enacting a measure legalizing abortion. It was so clear that
even the Court cannot interpret it otherwise. This intent of the Framers was
captured in the record of the proceedings of the 1986 Constitutional
Commission. Commissioner Bernardo Villegas, the principal proponent of
the protection of the unborn from conception, explained:
The intention .. .is to make sure that there would be no pro-abortion laws
ever passed by Congress or any pro-abortion decision passed by the
Supreme Court.169
A reading of the RH Law would show that it is in line with this intent and
actually proscribes abortion. While the Court has opted not to make any
determination, at this stage, when life begins, it finds that the RH Law itself
clearly mandates that protection be afforded from the moment of fertilization.
As pointed out by Justice Carpio, the RH Law is replete with provisions that
embody the policy of the law to protect to the fertilized ovum and that it
should be afforded safe travel to the uterus for implantation.170
Moreover, the RH Law recognizes that abortion is a crime under Article 256
of the Revised Penal Code, which penalizes the destruction or expulsion of
the fertilized ovum. Thus:
1] xx x.
Section 4. Definition of Terms. - For the purpose of this Act, the following
terms shall be defined as follows:

xxx.
2] xx x.
Section 4. x x x.
(s) Reproductive health rights refers to the rights of individuals and couples,
to decide freely and responsibly whether or not to have children; the number,
spacing and timing of their children; to make other decisions concerning
reproduction, free of discrimination, coercion and violence; to have the
information and means to do so; and to attain the highest standard of sexual
health and reproductive health: Provided, however, That reproductive health
rights do not include abortion, and access to abortifacients.
3] xx x.
SEC. 29. Repealing Clause. - Except for prevailing laws against abortion,
any law, presidential decree or issuance, executive order, letter of
instruction, administrative order, rule or regulation contrary to or is
inconsistent with the provisions of this Act including Republic Act No. 7392,
otherwise known as the Midwifery Act, is hereby repealed, modified or
amended accordingly.
The RH Law and Abortifacients
In carrying out its declared policy, the RH Law is consistent in prohibiting
abortifacients. To be clear, Section 4(a) of the RH Law defines an
abortifacient as:

Section 4. Definition of Terms - x x x x

(a) Abortifacient refers to any drug or device that induces abortion or the
destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb upon
determination of the FDA.
As stated above, the RH Law mandates that protection must be afforded
from the moment of fertilization. By using the word " or," the RH Law
prohibits not only drugs or devices that prevent implantation, but also those
that induce abortion and those that induce the destruction of a fetus inside
the mother's womb. Thus, an abortifacient is any drug or device that either:

From the foregoing, the Court finds that inasmuch as it affords protection to
the fertilized ovum, the RH Law does not sanction abortion. To repeat, it is
the Court's position that life begins at fertilization, not at implantation. When
a fertilized ovum is implanted in the uterine wall , its viability is sustained but
that instance of implantation is not the point of beginning of life. It started
earlier. And as defined by the RH Law, any drug or device that induces
abortion, that is, which kills or destroys the fertilized ovum or prevents the
fertilized ovum to reach and be implanted in the mother's womb, is an
abortifacient.
Proviso Under Section 9 of the RH Law

(c) Prevents the fertilized ovum to reach and be implanted in the

mother's womb, upon determination of the FDA.

This notwithstanding, the Court finds that the proviso under Section 9 of the
law that "any product or supply included or to be included in the EDL must
have a certification from the FDA that said product and supply is made
available on the condition that it is not to be used as an abortifacient" as
empty as it is absurd. The FDA, with all its expertise, cannot fully attest that
a drug or device will not all be used as an abortifacient, since the agency
cannot be present in every instance when the contraceptive product or
supply will be used.171

Contrary to the assertions made by the petitioners, the Court finds that the
RH Law, consistent with the Constitution, recognizes that the fertilized ovum
already has life and that the State has a bounden duty to protect it. The
conclusion becomes clear because the RH Law, first, prohibits any drug or
device that induces abortion (first kind), which, as discussed exhaustively
above, refers to that which induces the killing or the destruction of the
fertilized ovum, and, second, prohibits any drug or device the fertilized ovum
to reach and be implanted in the mother's womb (third kind).

Pursuant to its declared policy of providing access only to safe, legal and
non-abortifacient contraceptives, however, the Court finds that the proviso of
Section 9, as worded, should bend to the legislative intent and mean that
"any product or supply included or to be included in the EDL must have a
certification from the FDA that said product and supply is made available on
the condition that it cannot be used as abortifacient." Such a construction is
consistent with the proviso under the second paragraph of the same section
that provides:

By expressly declaring that any drug or device that prevents the fertilized
ovum to reach and be implanted in the mother's womb is an abortifacient
(third kind), the RH Law does not intend to mean at all that life only begins
only at implantation, as Hon. Lagman suggests. It also does not declare
either that protection will only be given upon implantation, as the petitioners
likewise suggest. Rather, it recognizes that: one, there is a need to protect
the fertilized ovum which already has life, and two, the fertilized ovum must
be protected the moment it becomes existent - all the way until it reaches
and implants in the mother's womb. After all, if life is only recognized and
afforded protection from the moment the fertilized ovum implants - there is
nothing to prevent any drug or device from killing or destroying the fertilized
ovum prior to implantation.

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.

(a) Induces abortion; or

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

Abortifacients under the RH-IRR

At this juncture, the Court agrees with ALFI that the authors of the RH-IRR
gravely abused their office when they redefined the meaning of abortifacient.
The RH Law defines "abortifacient" as follows:
SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms
shall be defined as follows:

(a) Abortifacient refers to any drug or device that induces abortion or the
destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb upon
determination of the FDA.

conception/fertilization in violation of Article II, Section 12 of the Constitution.

With such qualification in the RH-IRR, it appears to insinuate that a
contraceptive will only be considered as an "abortifacient" if its sole known
effect is abortion or, as pertinent here, the prevention of the implantation of
the fertilized ovum.

Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:

Section 3.01 For purposes of these Rules, the terms shall be defined as
follows:
a) Abortifacient refers to any drug or device that primarily induces abortion or
the destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb upon
determination of the Food and Drug Administration (FDA). [Emphasis
supplied]
Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:
j) Contraceptive refers to any safe, legal, effective and scientifically proven
modern family planning method, device, or health product, whether natural
or artificial, that prevents pregnancy but does not primarily destroy a
fertilized ovum or prevent a fertilized ovum from being implanted in the
mother's womb in doses of its approved indication as determined by the
Food and Drug Administration (FDA).
The above-mentioned section of the RH-IRR allows "contraceptives" and
recognizes as "abortifacient" only those that primarily induce abortion or the
destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb.172
This cannot be done.
In this regard, the observations of Justice Brion and Justice Del Castillo are
well taken. As they pointed out, with the insertion of the word "primarily,"
Section 3.0l(a) and G) of the RH-IRR 173 must be struck down for being ultra
vires.
Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G)
of the RH-IRR is indeed ultra vires. It contravenes Section 4(a) of the RH
Law and should, therefore, be declared invalid. There is danger that the
insertion of the qualifier "primarily" will pave the way for the approval of
contraceptives which may harm or destroy the life of the unborn from

For the same reason, this definition of "contraceptive" would permit the
approval of contraceptives which are actually abortifacients because of their
fail-safe mechanism.174
Also, as discussed earlier, Section 9 calls for the certification by the FDA that
these contraceptives cannot act as abortive. With this, together with the
definition of an abortifacient under Section 4 (a) of the RH Law and its
declared policy against abortion, the undeniable conclusion is that
contraceptives to be included in the PNDFS and the EDL will not only be
those contraceptives that do not have the primary action of causing abortion
or the destruction of a fetus inside the mother's womb or the prevention of
the fertilized ovum to reach and be implanted in the mother's womb, but also
those that do not have the secondary action of acting the same way.
Indeed, consistent with the constitutional policy prohibiting abortion, and in
line with the principle that laws should be construed in a manner that its
constitutionality is sustained, the RH Law and its implementing rules must be
consistent with each other in prohibiting abortion. Thus, the word " primarily"
in Section 3.0l(a) and G) of the RH-IRR should be declared void. To uphold
the validity of Section 3.0l(a) and G) of the RH-IRR and prohibit only those
contraceptives that have the primary effect of being an abortive would
effectively "open the floodgates to the approval of contraceptives which may
harm or destroy the life of the unborn from conception/fertilization in violation
of Article II, Section 12 of the Constitution."175
To repeat and emphasize, in all cases, the "principle of no abortion"
embodied in the constitutional protection of life must be upheld.
2-The Right to Health
The petitioners claim that the RH Law violates the right to health because it
requires the inclusion of hormonal contraceptives, intrauterine devices,
injectables and family products and supplies in the National Drug Formulary
and the inclusion of the same in the regular purchase of essential medicines
and supplies of all national hospitals.176Citing various studies on the matter,
the petitioners posit that the risk of developing breast and cervical cancer is
greatly increased in women who use oral contraceptives as compared to

women who never use them. They point out that the risk is decreased when
the use of contraceptives is discontinued. Further, it is contended that the
use of combined oral contraceptive pills is associated with a threefold
increased risk of venous thromboembolism, a twofold increased risk of
ischematic stroke, and an indeterminate effect on risk of myocardial
infarction.177 Given the definition of "reproductive health" and "sexual health"
under Sections 4(p)178 and (w)179 of the RH Law, the petitioners assert that
the assailed legislation only seeks to ensure that women have pleasurable
and satisfying sex lives.180

Section 13. The State shall establish a special agency for disabled person
for their rehabilitation, self-development, and self-reliance, and their
integration into the mainstream of society.

The OSG, however, points out that Section 15, Article II of the Constitution is
not self-executory, it being a mere statement of the administration's principle
and policy. Even if it were self-executory, the OSG posits that medical
authorities refute the claim that contraceptive pose a danger to the health of
women.181

Contrary to the respondent's notion, however, these provisions are selfexecuting. Unless the provisions clearly express the contrary, the provisions
of the Constitution should be considered self-executory. There is no need for
legislation to implement these self-executing provisions.182 In Manila Prince
Hotel v. GSIS,183 it was stated:

The Court's Position

x x x Hence, unless it is expressly provided that a legislative act is necessary

to enforce a constitutional mandate, the presumption now is that all
provisions of the constitution are self-executing. If the constitutional
provisions are treated as requiring legislation instead of self-executing, the
legislature would have the power to ignore and practically nullify the
mandate of the fundamental law. This can be cataclysmic. That is why the
prevailing view is, as it has always been, that

A component to the right to life is the constitutional right to health. In this

regard, the Constitution is replete with provisions protecting and promoting
the right to health. Section 15, Article II of the Constitution provides:
Section 15. The State shall protect and promote the right to health of the
people and instill health consciousness among them.
A portion of Article XIII also specifically provides for the States' duty to
provide for the health of the people, viz:
HEALTH
Section 11. The State shall adopt an integrated and comprehensive
approach to health development which shall endeavor to make essential
goods, health and other social services available to all the people at
affordable cost. There shall be priority for the needs of the underprivileged,
sick, elderly, disabled, women, and children. The State shall endeavor to
provide free medical care to paupers.
Section 12. The State shall establish and maintain an effective food and drug
regulatory system and undertake appropriate health, manpower
development, and research, responsive to the country's health needs and
problems.

Finally, Section 9, Article XVI provides:

Section 9. The State shall protect consumers from trade malpractices and
from substandard or hazardous products.

... in case of doubt, the Constitution should be considered self-executing

rather than non-self-executing. . . . Unless the contrary is clearly intended,
the provisions of the Constitution should be considered self-executing, as a
contrary rule would give the legislature discretion to determine when, or
whether, they shall be effective. These provisions would be subordinated to
the will of the lawmaking body, which could make them entirely meaningless
by simply refusing to pass the needed implementing statute. (Emphases
supplied)
This notwithstanding, it bears mentioning that the petitioners, particularly
ALFI, do not question contraception and contraceptives per se.184 In fact,
ALFI prays that the status quo - under R.A. No. 5921 and R.A. No. 4729, the
sale and distribution of contraceptives are not prohibited when they are
dispensed by a prescription of a duly licensed by a physician - be
maintained.185
The legislative intent in the enactment of the RH Law in this regard is to
leave intact the provisions of R.A. No. 4729. There is no intention at all to do
away with it. It is still a good law and its requirements are still in to be

complied with. Thus, the Court agrees with the observation of respondent
Lagman that the effectivity of the RH Law will not lead to the unmitigated
proliferation of contraceptives since the sale, distribution and dispensation of
contraceptive drugs and devices will still require the prescription of a
licensed physician. With R.A. No. 4729 in place, there exists adequate
safeguards to ensure the public that only contraceptives that are safe are
made available to the public. As aptly explained by respondent Lagman:
D.
dispensed
prescription

Contraceptives
and

cannot
used

be
without

108. As an added protection to voluntary users of contraceptives, the same

cannot be dispensed and used without prescription.
109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation,
and/ or Distribution of Contraceptive Drugs and Devices" and Republic Act
No. 5921 or "An Act Regulating the Practice of Pharmacy and Setting
Standards of Pharmaceutical Education in the Philippines and for Other
Purposes" are not repealed by the RH Law and the provisions of said Acts
are not inconsistent with the RH Law.
110. Consequently, the sale, distribution and dispensation of contraceptive
drugs and devices are particularly governed by RA No. 4729 which provides
in full:
"Section 1. It shall be unlawful for any person, partnership, or corporation, to
sell, dispense or otherwise distribute whether for or without consideration,
any contraceptive drug or device, unless such sale, dispensation or
distribution is by a duly licensed drug store or pharmaceutical company and
with the prescription of a qualified medical practitioner.
"Sec. 2 . For the purpose of this Act:
"(a) "Contraceptive drug" is any medicine, drug, chemical, or
portion which is used exclusively for the purpose of preventing
fertilization of the female ovum: and
"(b) "Contraceptive device" is any instrument, device, material, or
agent introduced into the female reproductive system for the
primary purpose of preventing conception.

"Sec. 3 Any person, partnership, or corporation, violating the provisions of

this Act shall be punished with a fine of not more than five hundred pesos or
an imprisonment of not less than six months or more than one year or both
in the discretion of the Court.
"This Act shall take effect upon its approval.
"Approved: June 18, 1966"
111. Of the same import, but in a general manner, Section 25 of RA No. 5921
provides:
"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No
medicine, pharmaceutical, or drug of whatever nature and kind or device
shall be compounded, dispensed, sold or resold, or otherwise be made
available to the consuming public except through a prescription drugstore or
hospital pharmacy, duly established in accordance with the provisions of this
Act.
112. With all of the foregoing safeguards, as provided for in the RH Law and
other relevant statutes, the pretension of the petitioners that the RH Law will
lead to the unmitigated proliferation of contraceptives, whether harmful or
not, is completely unwarranted and baseless. 186 [Emphases in the Original.
Underlining supplied.]
In Re: Section 10 of the RH Law:
The foregoing safeguards should be read in connection with Section 10 of
the RH Law which provides:
SEC. 10. Procurement and Distribution of Family Planning Supplies. - The
DOH shall procure, distribute to LGUs and monitor the usage of family
planning supplies for the whole country. The DOH shall coordinate with all
appropriate local government bodies to plan and implement this
procurement and distribution program. The supply and budget allotments
shall be based on, among others, the current levels and projections of the
following:
(a) Number of women of reproductive age and couples who want to
space or limit their children;

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

(c) Cost of family planning supplies.
Provided, That LGUs may implement its own procurement, distribution and
monitoring program consistent with the overall provisions of this Act and the
guidelines of the DOH.
Thus, in the distribution by the DOH of contraceptive drugs and devices, it
must consider the provisions of R.A. No. 4729, which is still in effect, and
ensure that the contraceptives that it will procure shall be from a duly
licensed drug store or pharmaceutical company and that the actual
dispensation of these contraceptive drugs and devices will done following a
prescription of a qualified medical practitioner. The distribution of
contraceptive drugs and devices must not be indiscriminately done. The
public health must be protected by all possible means. As pointed out by
Justice De Castro, a heavy responsibility and burden are assumed by the
government in supplying contraceptive drugs and devices, for it may be held
accountable for any injury, illness or loss of life resulting from or incidental to
their use.187
At any rate, it bears pointing out that not a single contraceptive has yet been
submitted to the FDA pursuant to the RH Law. It behooves the Court to await
its determination which drugs or devices are declared by the FDA as safe, it
being the agency tasked to ensure that food and medicines available to the
public are safe for public consumption. Consequently, the Court finds that, at
this point, the attack on the RH Law on this ground is premature. Indeed, the
various kinds of contraceptives must first be measured up to the
constitutional yardstick as expounded herein, to be determined as the case
presents itself.
At this point, the Court is of the strong view that Congress cannot legislate
that hormonal contraceptives and intra-uterine devices are safe and nonabortifacient. The first sentence of Section 9 that ordains their inclusion by
the National Drug Formulary in the EDL by using the mandatory "shall" is to
be construed as operative only after they have been tested, evaluated, and
approved by the FDA. The FDA, not Congress, has the expertise to
determine whether a particular hormonal contraceptive or intrauterine device
is safe and non-abortifacient. The provision of the third sentence concerning
the requirements for the inclusion or removal of a particular family planning
supply from the EDL supports this construction.

Stated differently, the provision in Section 9 covering the inclusion of

hormonal contraceptives, intra-uterine devices, injectables, and other safe,
legal, non-abortifacient and effective family planning products and supplies
by the National Drug Formulary in the EDL is not mandatory. There must first
be a determination by the FDA that they are in fact safe, legal, nonabortifacient and effective family planning products and supplies. There can
be no predetermination by Congress that the gamut of contraceptives are
"safe, legal, non-abortifacient and effective" without the proper scientific
examination.
3
-Freedom
and the Right to Free Speech

of

Religion

Position of the Petitioners:

1. On Contraception
While contraceptives and procedures like vasectomy and tubal ligation are
not covered by the constitutional proscription, there are those who, because
of their religious education and background, sincerely believe that
contraceptives, whether abortifacient or not, are evil. Some of these are
medical practitioners who essentially claim that their beliefs prohibit not only
the use of contraceptives but also the willing participation and cooperation in
all things dealing with contraceptive use. Petitioner PAX explained that
"contraception is gravely opposed to marital chastity, it is contrary to the
good of the transmission of life, and to the reciprocal self-giving of the
spouses; it harms true love and denies the sovereign rule of God in the
transmission of Human life."188
The petitioners question the State-sponsored procurement of contraceptives,
arguing that the expenditure of their taxes on contraceptives violates the
guarantee of religious freedom since contraceptives contravene their
religious beliefs.189
2.
On
The Duty to Refer

Religious

Accommodation

and

Petitioners Imbong and Luat note that while the RH Law attempts to address
religious sentiments by making provisions for a conscientious objector, the
constitutional guarantee is nonetheless violated because the law also
imposes upon the conscientious objector the duty to refer the patient
seeking reproductive health services to another medical practitioner who

would be able to provide for the patient's needs. For the petitioners, this
amounts to requiring the conscientious objector to cooperate with the very
thing he refuses to do without violating his/her religious beliefs.190
They further argue that even if the conscientious objector's duty to refer is
recognized, the recognition is unduly limited, because although it allows a
conscientious objector in Section 23 (a)(3) the option to refer a patient
seeking reproductive health services and information - no escape is afforded
the conscientious objector in Section 23 (a)(l) and (2), i.e. against a patient
seeking reproductive health procedures. They claim that the right of other
individuals to conscientiously object, such as: a) those working in public
health facilities referred to in Section 7; b) public officers involved in the
implementation of the law referred to in Section 23(b ); and c) teachers in
public schools referred to in Section 14 of the RH Law, are also not
recognize.191
Petitioner Echavez and the other medical practitioners meanwhile, contend
that the requirement to refer the matter to another health care service
provider is still considered a compulsion on those objecting healthcare
service providers. They add that compelling them to do the act against their
will violates the Doctrine of Benevolent Neutrality. Sections 9, 14 and 1 7 of
the law are too secular that they tend to disregard the religion of Filipinos.
Authorizing the use of contraceptives with abortive effects, mandatory sex
education, mandatory pro-bono reproductive health services to indigents
encroach upon the religious freedom of those upon whom they are
required.192
Petitioner CFC also argues that the requirement for a conscientious objector
to refer the person seeking reproductive health care services to another
provider infringes on one's freedom of religion as it forces the objector to
become an unwilling participant in the commission of a serious sin under
Catholic teachings. While the right to act on one's belief may be regulated by
the State, the acts prohibited by the RH Law are passive acts which produce
neither harm nor injury to the public.193
Petitioner CFC adds that the RH Law does not show compelling state
interest to justify regulation of religious freedom because it mentions no
emergency, risk or threat that endangers state interests. It does not explain
how the rights of the people (to equality, non-discrimination of rights,
sustainable human development, health, education, information, choice and
to make decisions according to religious convictions, ethics, cultural beliefs
and the demands of responsible parenthood) are being threatened or are not
being met as to justify the impairment of religious freedom.194

Finally, the petitioners also question Section 15 of the RH Law requiring

would-be couples to attend family planning and responsible parenthood
seminars and to obtain a certificate of compliance. They claim that the
provision forces individuals to participate in the implementation of the RH
Law even if it contravenes their religious beliefs.195 As the assailed law
dangles the threat of penalty of fine and/or imprisonment in case of noncompliance with its provisions, the petitioners claim that the RH Law forcing
them to provide, support and facilitate access and information to
contraception against their beliefs must be struck down as it runs afoul to the
constitutional guarantee of religious freedom.
The Respondents' Positions
The respondents, on the other hand, contend that the RH Law does not
provide that a specific mode or type of contraceptives be used, be it natural
or artificial. It neither imposes nor sanctions any religion or belief.196 They
point out that the RH Law only seeks to serve the public interest by providing
accessible, effective and quality reproductive health services to ensure
maternal and child health, in line with the State's duty to bring to reality the
social justice health guarantees of the Constitution,197 and that what the law
only prohibits are those acts or practices, which deprive others of their right
to reproductive health.198 They assert that the assailed law only seeks to
guarantee informed choice, which is an assurance that no one will be
compelled to violate his religion against his free will.199
The respondents add that by asserting that only natural family planning
should be allowed, the petitioners are effectively going against the
constitutional right to religious freedom, the same right they invoked to assail
the constitutionality of the RH Law.200 In other words, by seeking the
declaration that the RH Law is unconstitutional, the petitioners are asking
that the Court recognize only the Catholic Church's sanctioned natural family
planning methods and impose this on the entire citizenry.201
With respect to the duty to refer, the respondents insist that the same does
not violate the constitutional guarantee of religious freedom, it being a
carefully balanced compromise between the interests of the religious
objector, on one hand, who is allowed to keep silent but is required to refer
-and that of the citizen who needs access to information and who has the
right to expect that the health care professional in front of her will act
professionally. For the respondents, the concession given by the State under
Section 7 and 23(a)(3) is sufficient accommodation to the right to freely
exercise one's religion without unnecessarily infringing on the rights of
others.202

Whatever burden is placed on the petitioner's religious freedom is minimal

as the duty to refer is limited in duration, location and impact.203
Regarding mandatory family planning seminars under Section 15 , the
respondents claim that it is a reasonable regulation providing an opportunity
for would-be couples to have access to information regarding parenthood,
family planning, breastfeeding and infant nutrition. It is argued that those
who object to any information received on account of their attendance in the
required seminars are not compelled to accept information given to them.
They are completely free to reject any information they do not agree with
and retain the freedom to decide on matters of family life without intervention
of the State.204
For their part, respondents De Venecia et al., dispute the notion that natural
family planning is the only method acceptable to Catholics and the Catholic
hierarchy. Citing various studies and surveys on the matter, they highlight
the changing stand of the Catholic Church on contraception throughout the
years and note the general acceptance of the benefits of contraceptives by
its followers in planning their families.
The Church and The State
At the outset, it cannot be denied that we all live in a heterogeneous society.
It is made up of people of diverse ethnic, cultural and religious beliefs and
backgrounds. History has shown us that our government, in law and in
practice, has allowed these various religious, cultural, social and racial
groups to thrive in a single society together. It has embraced minority groups
and is tolerant towards all - the religious people of different sects and the
non-believers. The undisputed fact is that our people generally believe in a
deity, whatever they conceived Him to be, and to whom they call for
guidance and enlightenment in crafting our fundamental law. Thus, the
preamble of the present Constitution reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order
to build a just and humane society, and establish a Government that shall
embody our ideals and aspirations, promote the common good, conserve
and develop our patrimony, and secure to ourselves and our posterity, the
blessings of independence and democracy under the rule of law and a
regime of truth, justice, freedom, love, equality, and peace, do ordain and
promulgate this Constitution.
The Filipino people in "imploring the aid of Almighty God " manifested their
spirituality innate in our nature and consciousness as a people, shaped by

tradition and historical experience. As this is embodied in the preamble, it

means that the State recognizes with respect the influence of religion in so
far as it instills into the mind the purest principles of morality.205 Moreover, in
recognition of the contributions of religion to society, the 1935, 1973 and
1987 constitutions contain benevolent and accommodating provisions
towards religions such as tax exemption of church property, salary of
religious officers in government institutions, and optional religious
instructions in public schools.
The Framers, however, felt the need to put up a strong barrier so that the
State would not encroach into the affairs of the church, and vice-versa. The
principle of separation of Church and State was, thus, enshrined in Article II,
Section 6 of the 1987 Constitution, viz:
Section 6. The separation of Church and State shall be inviolable.
Verily, the principle of separation of Church and State is based on mutual
respect.1wphi1 Generally, the State cannot meddle in the internal affairs of
the church, much less question its faith and dogmas or dictate upon it. It
cannot favor one religion and discriminate against another. On the other
hand, the church cannot impose its beliefs and convictions on the State and
the rest of the citizenry. It cannot demand that the nation follow its beliefs,
even if it sincerely believes that they are good for the country.
Consistent with the principle that not any one religion should ever be
preferred over another, the Constitution in the above-cited provision utilizes
the term "church" in its generic sense, which refers to a temple, a mosque,
an iglesia, or any other house of God which metaphorically symbolizes a
religious organization. Thus, the "Church" means the religious congregations
collectively.
Balancing the benefits that religion affords and the need to provide an ample
barrier to protect the State from the pursuit of its secular objectives, the
Constitution lays down the following mandate in Article III, Section 5 and
Article VI, Section 29 (2), of the 1987 Constitution:
Section. 5. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall
forever be allowed. No religious test shall be required for the exercise of civil
or political rights.

Section 29.
xxx.
No public money or property shall be appropriated, applied, paid, or
employed, directly or indirectly, for the use, benefit, or support of any sect,
church, denomination, sectarian institution, or system of religion, or of any
priest, preacher, minister, other religious teacher, or dignitary as such,
except when such priest, preacher, minister, or dignitary is assigned to the
armed forces, or to any penal institution, or government orphanage or
leprosarium.
In short, the constitutional assurance of religious freedom provides two
guarantees: the Establishment Clause and the Free Exercise Clause.
The establishment clause "principally prohibits the State from sponsoring
any religion or favoring any religion as against other religions. It mandates a
strict neutrality in affairs among religious groups." 206 Essentially, it prohibits
the establishment of a state religion and the use of public resources for the
support or prohibition of a religion.
On the other hand, the basis of the free exercise clause is the respect for the
inviolability of the human conscience.207 Under this part of religious freedom
guarantee, the State is prohibited from unduly interfering with the outside
manifestations of one's belief and faith.208 Explaining the concept of religious
freedom, the Court, in Victoriano v. Elizalde Rope Workers Union209 wrote:
The constitutional provisions not only prohibits legislation for the support of
any religious tenets or the modes of worship of any sect, thus forestalling
compulsion by law of the acceptance of any creed or the practice of any
form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also
assures the free exercise of one's chosen form of religion within limits of
utmost amplitude. It has been said that the religion clauses of the
Constitution are all designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live, consistent with
the liberty of others and with the common good. Any legislation whose effect
or purpose is to impede the observance of one or all religions, or to
discriminate invidiously between the religions, is invalid, even though the
burden may be characterized as being only indirect. (Sherbert v. Verner, 374
U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates conduct
by enacting, within its power, a general law which has for its purpose and
effect to advance the state's secular goals, the statute is valid despite its

indirect burden on religious observance, unless the state can accomplish its
purpose without imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6
Led. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and
449).
As expounded in Escritor,
The establishment and free exercise clauses were not designed to serve
contradictory purposes. They have a single goal-to promote freedom of
individual religious beliefs and practices. In simplest terms, the free exercise
clause prohibits government from inhibiting religious beliefs with penalties for
religious beliefs and practice, while the establishment clause prohibits
government from inhibiting religious belief with rewards for religious beliefs
and practices. In other words, the two religion clauses were intended to deny
government the power to use either the carrot or the stick to influence
individual religious beliefs and practices.210
Corollary to the guarantee of free exercise of one's religion is the principle
that the guarantee of religious freedom is comprised of two parts: the
freedom to believe, and the freedom to act on one's belief. The first part is
absolute. As explained in Gerona v. Secretary of Education:211
The realm of belief and creed is infinite and limitless bounded only by one's
imagination and thought. So is the freedom of belief, including religious
belief, limitless and without bounds. One may believe in most anything,
however strange, bizarre and unreasonable the same may appear to others,
even heretical when weighed in the scales of orthodoxy or doctrinal
standards. But between the freedom of belief and the exercise of said belief,
there is quite a stretch of road to travel.212
The second part however, is limited and subject to the awesome power of
the State and can be enjoyed only with proper regard to the rights of others.
It is "subject to regulation where the belief is translated into external acts that
affect the public welfare."213
Legislative Acts and the
Free Exercise Clause
Thus, in case of conflict between the free exercise clause and the State, the
Court adheres to the doctrine of benevolent neutrality. This has been clearly
decided by the Court in Estrada v. Escritor, (Escritor)214 where it was stated

"that benevolent neutrality-accommodation, whether mandatory or

permissive, is the spirit, intent and framework underlying the Philippine
Constitution."215 In the same case, it was further explained that"
The benevolent neutrality theory believes that with respect to these
governmental actions, accommodation of religion may be allowed, not to
promote the government's favored form of religion, but to allow individuals
and groups to exercise their religion without hindrance. "The purpose of
accommodation is to remove a burden on, or facilitate the exercise of, a
person's or institution's religion."216 "What is sought under the theory of
accommodation is not a declaration of unconstitutionality of a facially neutral
law, but an exemption from its application or its 'burdensome effect,' whether
by the legislature or the courts."217
In ascertaining the limits of the exercise of religious freedom, the compelling
state interest test is proper.218Underlying the compelling state interest test is
the notion that free exercise is a fundamental right and that laws burdening it
should be subject to strict scrutiny.219 In Escritor, it was written:
Philippine jurisprudence articulates several tests to determine these limits.
Beginning with the first case on the Free Exercise Clause, American Bible
Society, the Court mentioned the "clear and present danger" test but did not
employ it. Nevertheless, this test continued to be cited in subsequent cases
on religious liberty. The Gerona case then pronounced that the test of
permissibility of religious freedom is whether it violates the established
institutions of society and law. The Victoriano case mentioned the
"immediate and grave danger" test as well as the doctrine that a law of
general applicability may burden religious exercise provided the law is the
least restrictive means to accomplish the goal of the law. The case also
used, albeit inappropriately, the "compelling state interest" test. After
Victoriano , German went back to the Gerona rule. Ebralinag then employed
the "grave and immediate danger" test and overruled the Gerona test. The
fairly recent case of Iglesia ni Cristo went back to the " clear and present
danger" test in the maiden case of A merican Bible Society. Not surprisingly,
all the cases which employed the "clear and present danger" or "grave and
immediate danger" test involved, in one form or another, religious speech as
this test is often used in cases on freedom of expression. On the other hand,
the Gerona and German cases set the rule that religious freedom will not
prevail over established institutions of society and law. Gerona, however,
which was the authority cited by German has been overruled by Ebralinag
which employed the "grave and immediate danger" test . Victoriano was the
only case that employed the "compelling state interest" test, but as explained
previously, the use of the test was inappropriate to the facts of the case.

The case at bar does not involve speech as in A merican Bible Society,
Ebralinag and Iglesia ni Cristo where the "clear and present danger" and
"grave and immediate danger" tests were appropriate as speech has easily
discernible or immediate effects. The Gerona and German doctrine, aside
from having been overruled, is not congruent with the benevolent neutrality
approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the
present case involves purely conduct arising from religious belief. The
"compelling state interest" test is proper where conduct is involved for the
whole gamut of human conduct has different effects on the state's interests:
some effects may be immediate and short-term while others delayed and
far-reaching. A test that would protect the interests of the state in preventing
a substantive evil, whether immediate or delayed, is therefore necessary.
However, not any interest of the state would suffice to prevail over the right
to religious freedom as this is a fundamental right that enjoys a preferred
position in the hierarchy of rights - "the most inalienable and sacred of all
human rights", in the words of Jefferson. This right is sacred for an
invocation of the Free Exercise Clause is an appeal to a higher sovereignty.
The entire constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the Filipinos implore the
"aid of Almighty God in order to build a just and humane society and
establish a government." As held in Sherbert, only the gravest abuses,
endangering paramount interests can limit this fundamental right. A mere
balancing of interests which balances a right with just a colorable state
interest is therefore not appropriate. Instead, only a compelling interest of
the state can prevail over the fundamental right to religious liberty. The test
requires the state to carry a heavy burden, a compelling one, for to do
otherwise would allow the state to batter religion, especially the less
powerful ones until they are destroyed. In determining which shall prevail
between the state's interest and religious liberty, reasonableness shall be the
guide. The "compelling state interest" serves the purpose of revering
religious liberty while at the same time affording protection to the paramount
interests of the state. This was the test used in Sherbert which involved
conduct, i.e. refusal to work on Saturdays. In the end, the "compelling state
interest" test, by upholding the paramount interests of the state, seeks to
protect the very state, without which, religious liberty will not be preserved.
[Emphases in the original. Underlining supplied.]
The Court's Position
In the case at bench, it is not within the province of the Court to determine
whether the use of contraceptives or one's participation in the support of
modem reproductive health measures is moral from a religious standpoint or
whether the same is right or wrong according to one's dogma or belief. For
the Court has declared that matters dealing with "faith, practice, doctrine,

form of worship, ecclesiastical law, custom and rule of a church ... are
unquestionably ecclesiastical matters which are outside the province of the
civil courts."220 The jurisdiction of the Court extends only to public and
secular morality. Whatever pronouncement the Court makes in the case at
bench should be understood only in this realm where it has authority. Stated
otherwise, while the Court stands without authority to rule on ecclesiastical
matters, as vanguard of the Constitution, it does have authority to determine
whether the RH Law contravenes the guarantee of religious freedom.
At first blush, it appears that the RH Law recognizes and respects religion
and religious beliefs and convictions. It is replete with assurances the no one
can be compelled to violate the tenets of his religion or defy his religious
convictions against his free will. Provisions in the RH Law respecting
religious freedom are the following:
1. The State recognizes and guarantees the human rights of all persons
including their right to equality and nondiscrimination of these rights, the right
to sustainable human development, the right to health which includes
reproductive health, the right to education and information, and the right to
choose and make decisions for themselves in accordance with their religious
convictions, ethics, cultural beliefs, and the demands of responsible
parenthood. [Section 2, Declaration of Policy]
2 . The State recognizes marriage as an inviolable social institution and the
foundation of the family which in turn is the foundation of the nation.
Pursuant thereto, the State shall defend:
(a) The right of spouses to found a family in accordance with their religious
convictions and the demands of responsible parenthood." [Section 2,
Declaration of Policy]
3. The State shall promote and provide information and access, without bias,
to all methods of family planning, including effective natural and modern
methods which have been proven medically safe, legal, non-abortifacient,
and effective in accordance with scientific and evidence-based medical
research standards such as those registered and approved by the FDA for
the poor and marginalized as identified through the NHTS-PR and other
government measures of identifying marginalization: Provided, That the
State shall also provide funding support to promote modern natural methods
of family planning, especially the Billings Ovulation Method, consistent with
the needs of acceptors and their religious convictions. [Section 3(e),
Declaration of Policy]

4. The State shall promote programs that: (1) enable individuals and couples
to have the number of children they desire with due consideration to the
health, particularly of women, and the resources available and affordable to
them and in accordance with existing laws, public morals and their religious
convictions. [Section 3CDJ
5. The State shall respect individuals' preferences and choice of family
planning methods that are in accordance with their religious convictions and
cultural beliefs, taking into consideration the State's obligations under
various human rights instruments. [Section 3(h)]
6. Active participation by nongovernment organizations (NGOs) , women's
and people's organizations, civil society, faith-based organizations, the
religious sector and communities is crucial to ensure that reproductive health
and population and development policies, plans, and programs will address
the priority needs of women, the poor, and the marginalized. [Section 3(i)]
7. Responsible parenthood refers to the will and ability of a parent to
respond to the needs and aspirations of the family and children. It is likewise
a shared responsibility between parents to determine and achieve the
desired number of children, spacing and timing of their children according to
their own family life aspirations, taking into account psychological
preparedness, health status, sociocultural and economic concerns
consistent with their religious convictions. [Section 4(v)] (Emphases
supplied)
While the Constitution prohibits abortion, laws were enacted allowing the use
of contraceptives. To some medical practitioners, however, the whole idea of
using contraceptives is an anathema. Consistent with the principle of
benevolent neutrality, their beliefs should be respected.
The Establishment Clause
and Contraceptives
In the same breath that the establishment clause restricts what the
government can do with religion, it also limits what religious sects can or
cannot do with the government. They can neither cause the government to
adopt their particular doctrines as policy for everyone, nor can they not
cause the government to restrict other groups. To do so, in simple terms,
would cause the State to adhere to a particular religion and, thus,
establishing a state religion.

Consequently, the petitioners are misguided in their supposition that the

State cannot enhance its population control program through the RH Law
simply because the promotion of contraceptive use is contrary to their
religious beliefs. Indeed, the State is not precluded to pursue its legitimate
secular objectives without being dictated upon by the policies of any one
religion. One cannot refuse to pay his taxes simply because it will cloud his
conscience. The demarcation line between Church and State demands that
one render unto Caesar the things that are Caesar's and unto God the
things that are God's.221
The Free Exercise Clause and the Duty to Refer
While the RH Law, in espousing state policy to promote reproductive health
manifestly respects diverse religious beliefs in line with the NonEstablishment Clause, the same conclusion cannot be reached with respect
to Sections 7, 23 and 24 thereof. The said provisions commonly mandate
that a hospital or a medical practitioner to immediately refer a person
seeking health care and services under the law to another accessible
healthcare provider despite their conscientious objections based on religious
or ethical beliefs.
In a situation where the free exercise of religion is allegedly burdened by
government legislation or practice, the compelling state interest test in line
with the Court's espousal of the Doctrine of Benevolent Neutrality in Escritor,
finds application. In this case, the conscientious objector's claim to religious
freedom would warrant an exemption from obligations under the RH Law,
unless the government succeeds in demonstrating a more compelling state
interest in the accomplishment of an important secular objective. Necessarily
so, the plea of conscientious objectors for exemption from the RH Law
deserves no less than strict scrutiny.
In applying the test, the first inquiry is whether a conscientious objector's
right to religious freedom has been burdened. As in Escritor, there is no
doubt that an intense tug-of-war plagues a conscientious objector. One side
coaxes him into obedience to the law and the abandonment of his religious
beliefs, while the other entices him to a clean conscience yet under the pain
of penalty. The scenario is an illustration of the predicament of medical
practitioners whose religious beliefs are incongruent with what the RH Law
promotes.
The Court is of the view that the obligation to refer imposed by the RH Law
violates the religious belief and conviction of a conscientious objector. Once
the medical practitioner, against his will, refers a patient seeking information

on modem reproductive health products, services, procedures and methods,

his conscience is immediately burdened as he has been compelled to
perform an act against his beliefs. As Commissioner Joaquin A. Bernas
(Commissioner Bernas) has written, "at the basis of the free exercise clause
is the respect for the inviolability of the human conscience.222
Though it has been said that the act of referral is an opt-out clause, it is,
however, a false compromise because it makes pro-life health providers
complicit in the performance of an act that they find morally repugnant or
offensive. They cannot, in conscience, do indirectly what they cannot do
directly. One may not be the principal, but he is equally guilty if he abets the
offensive act by indirect participation.
Moreover, the guarantee of religious freedom is necessarily intertwined with
the right to free speech, it being an externalization of one's thought and
conscience. This in turn includes the right to be silent. With the constitutional
guarantee of religious freedom follows the protection that should be afforded
to individuals in communicating their beliefs to others as well as the
protection for simply being silent. The Bill of Rights guarantees the liberty of
the individual to utter what is in his mind and the liberty not to utter what is
not in his mind.223 While the RH Law seeks to provide freedom of choice
through informed consent, freedom of choice guarantees the liberty of the
religious conscience and prohibits any degree of compulsion or burden,
whether direct or indirect, in the practice of one's religion.224
In case of conflict between the religious beliefs and moral convictions of
individuals, on one hand, and the interest of the State, on the other, to
provide access and information on reproductive health products, services,
procedures and methods to enable the people to determine the timing,
number and spacing of the birth of their children, the Court is of the strong
view that the religious freedom of health providers, whether public or private,
should be accorded primacy. Accordingly, a conscientious objector should be
exempt from compliance with the mandates of the RH Law. If he would be
compelled to act contrary to his religious belief and conviction, it would be
violative of "the principle of non-coercion" enshrined in the constitutional
right to free exercise of religion.
Interestingly, on April 24, 2013, Scotland's Inner House of the Court of
Session, found in the case of Doogan and Wood v. NHS Greater Glasgow
and Clyde Health Board,225 that the midwives claiming to be conscientious
objectors under the provisions of Scotland's Abortion Act of 1967, could not
be required to delegate, supervise or support staff on their labor ward who
were involved in abortions.226 The Inner House stated "that if 'participation'

were defined according to whether the person was taking part 'directly' or '
indirectly' this would actually mean more complexity and uncertainty."227
While the said case did not cover the act of referral, the applicable principle
was the same - they could not be forced to assist abortions if it would be
against their conscience or will.

The last paragraph of Section 5.24 of the RH-IRR reads:

Provided, That skilled health professional such as provincial, city or
municipal health officers, chiefs of hospital, head nurses, supervising
midwives, among others, who by virtue of their office are specifically charged
with the duty to implement the provisions of the RPRH Act and these Rules,
cannot be considered as conscientious objectors.

Institutional Health Providers

The same holds true with respect to non-maternity specialty hospitals and
hospitals owned and operated by a religious group and health care service
providers. Considering that Section 24 of the RH Law penalizes such
institutions should they fail or refuse to comply with their duty to refer under
Section 7 and Section 23(a)(3), the Court deems that it must be struck down
for being violative of the freedom of religion. The same applies to Section
23(a)(l) and (a)(2) in relation to Section 24, considering that in the
dissemination of information regarding programs and services and in the
performance of reproductive health procedures, the religious freedom of
health care service providers should be respected.
In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the
Executive Secretary228 it was stressed:
Freedom of religion was accorded preferred status by the framers of our
fundamental law. And this Court has consistently affirmed this preferred
status, well aware that it is "designed to protect the broadest possible liberty
of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live, consistent with
the liberty of others and with the common good."10
The Court is not oblivious to the view that penalties provided by law
endeavour to ensure compliance. Without set consequences for either an
active violation or mere inaction, a law tends to be toothless and ineffectual.
Nonetheless, when what is bartered for an effective implementation of a law
is a constitutionally-protected right the Court firmly chooses to stamp its
disapproval. The punishment of a healthcare service provider, who fails
and/or refuses to refer a patient to another, or who declines to perform
reproductive health procedure on a patient because incompatible religious
beliefs, is a clear inhibition of a constitutional guarantee which the Court
cannot allow.
The Implementing Rules and Regulation (RH-IRR)

This is discriminatory and violative of the equal protection clause. The

conscientious objection clause should be equally protective of the religious
belief of public health officers. There is no perceptible distinction why they
should not be considered exempt from the mandates of the law. The
protection accorded to other conscientious objectors should equally apply to
all medical practitioners without distinction whether they belong to the public
or private sector. After all, the freedom to believe is intrinsic in every
individual and the protective robe that guarantees its free exercise is not
taken off even if one acquires employment in the government.
It should be stressed that intellectual liberty occupies a place inferior to none
in the hierarchy of human values. The mind must be free to think what it
wills, whether in the secular or religious sphere, to give expression to its
beliefs by oral discourse or through the media and, thus, seek other candid
views in occasions or gatherings or in more permanent aggrupation.
Embraced in such concept then are freedom of religion, freedom of speech,
of the press, assembly and petition, and freedom of association.229
The discriminatory provision is void not only because no such exception is
stated in the RH Law itself but also because it is violative of the equal
protection clause in the Constitution. Quoting respondent Lagman, if there is
any conflict between the RH-IRR and the RH Law, the law must prevail.
Justice Mendoza:
I'll go to another point. The RH law .. .in your Comment- in-Intervention on
page 52, you mentioned RH Law is replete with provisions in upholding the
freedom of religion and respecting religious convictions. Earlier, you affirmed
this with qualifications. Now, you have read, I presumed you have read the
IRR-Implementing Rules and Regulations of the RH Bill?
Congressman Lagman:

Yes, Your Honor, I have read but I have to admit, it's a long IRR and I have
not thoroughly dissected the nuances of the provisions.
Justice Mendoza:
I will read to you one provision. It's Section 5.24. This I cannot find in the RH
Law. But in the IRR it says: " .... skilled health professionals such as
provincial, city or municipal health officers, chief of hospitals, head nurses,
supervising midwives, among others, who by virtue of their office are
specifically charged with the duty to implement the provisions of the RPRH
Act and these Rules, cannot be considered as conscientious objectors." Do
you agree with this?
Congressman Lagman:
I will have to go over again the provisions, Your Honor.
Justice Mendoza:

objector's right not to adhere to an action contrary to his religious

convictions. During the oral arguments, the OSG maintained the same
silence and evasion. The Transcripts of the Stenographic Notes disclose the
following:
Justice De Castro:
Let's go back to the duty of the conscientious objector to refer. ..
Senior State Solicitor Hilbay:
Yes, Justice.
Justice De Castro:
... which you are discussing awhile ago with Justice Abad. What is the
compelling State interest in imposing this duty to refer to a conscientious
objector which refuses to do so because of his religious belief?

In other words, public health officers in contrast to the private practitioners

who can be conscientious objectors, skilled health professionals cannot be
considered conscientious objectors. Do you agree with this? Is this not
against the constitutional right to the religious belief?

Senior State Solicitor Hilbay:

Congressman Lagman:

Justice De Castro:

Your Honor, if there is any conflict between the IRR and the law, the law
must prevail.230

What is the compelling State interest to impose this burden?

Ahh, Your Honor, ..

Senior State Solicitor Hilbay:

Compelling State Interest
The foregoing discussion then begets the question on whether the
respondents, in defense of the subject provisions, were able to: 1]
demonstrate a more compelling state interest to restrain conscientious
objectors in their choice of services to render; and 2] discharge the burden of
proof that the obligatory character of the law is the least intrusive means to
achieve the objectives of the law.
Unfortunately, a deep scrutiny of the respondents' submissions proved to be
in vain. The OSG was curiously silent in the establishment of a more
compelling state interest that would rationalize the curbing of a conscientious

In the first place, Your Honor, I don't believe that the standard is a compelling
State interest, this is an ordinary health legislation involving professionals.
This is not a free speech matter or a pure free exercise matter. This is a
regulation by the State of the relationship between medical doctors and their
patients.231
Resultantly, the Court finds no compelling state interest which would limit the
free exercise clause of the conscientious objectors, however few in number.
Only the prevention of an immediate and grave danger to the security and
welfare of the community can justify the infringement of religious freedom. If

the government fails to show the seriousness and immediacy of the threat,
State intrusion is constitutionally unacceptable.232

Carta on comprehensive health services and programs for women, in fact,

reads:

Freedom of religion means more than just the freedom to believe. It also
means the freedom to act or not to act according to what one believes. And
this freedom is violated when one is compelled to act against one's belief or
is prevented from acting according to one's belief.233

Section 17. Women's Right to Health. - (a) Comprehensive Health Services.

- The State shall, at all times, provide for a comprehensive, culture-sensitive,
and gender-responsive health services and programs covering all stages of
a woman's life cycle and which addresses the major causes of women's
mortality and morbidity: Provided, That in the provision for comprehensive
health services, due respect shall be accorded to women's religious
convictions, the rights of the spouses to found a family in accordance with
their religious convictions, and the demands of responsible parenthood, and
the right of women to protection from hazardous drugs, devices,
interventions, and substances.

Apparently, in these cases, there is no immediate danger to the life or health

of an individual in the perceived scenario of the subject provisions. After all,
a couple who plans the timing, number and spacing of the birth of their
children refers to a future event that is contingent on whether or not the
mother decides to adopt or use the information, product, method or supply
given to her or whether she even decides to become pregnant at all. On the
other hand, the burden placed upon those who object to contraceptive use is
immediate and occurs the moment a patient seeks consultation on
reproductive health matters.
Moreover, granting that a compelling interest exists to justify the infringement
of the conscientious objector's religious freedom, the respondents have
failed to demonstrate "the gravest abuses, endangering paramount
interests" which could limit or override a person's fundamental right to
religious freedom. Also, the respondents have not presented any
government effort exerted to show that the means it takes to achieve its
legitimate state objective is the least intrusive means. 234 Other than the
assertion that the act of referring would only be momentary, considering that
the act of referral by a conscientious objector is the very action being
contested as violative of religious freedom, it behooves the respondents to
demonstrate that no other means can be undertaken by the State to achieve
its objective without violating the rights of the conscientious objector. The
health concerns of women may still be addressed by other practitioners who
may perform reproductive health-related procedures with open willingness
and motivation. Suffice it to say, a person who is forced to perform an act in
utter reluctance deserves the protection of the Court as the last vanguard of
constitutional freedoms.
At any rate, there are other secular steps already taken by the Legislature to
ensure that the right to health is protected. Considering other legislations as
they stand now, R.A . No. 4 729 or the Contraceptive Act, R.A. No. 6365 or
"The Population Act of the Philippines" and R.A. No. 9710, otherwise known
as "The Magna Carta of Women," amply cater to the needs of women in
relation to health services and programs. The pertinent provision of Magna

Access to the following services shall be ensured:

(1) Maternal care to include pre- and post-natal services to
address pregnancy and infant health and nutrition;
(2) Promotion of breastfeeding;
(3) Responsible, ethical, legal, safe, and effective methods
of family planning;
(4) Family and State collaboration in youth sexuality
education and health services without prejudice to the
primary right and duty of parents to educate their children;
(5) Prevention and management of reproductive tract
infections, including sexually transmitted diseases, HIV,
and AIDS;
(6) Prevention and management of reproductive tract
cancers like breast and cervical cancers, and other
gynecological conditions and disorders;
(7) Prevention of abortion and management of pregnancyrelated complications;
(8) In cases of violence against women and children,
women and children victims and survivors shall be

provided with comprehensive health services that include

psychosocial, therapeutic, medical, and legal interventions
and assistance towards healing, recovery, and
empowerment;
(9) Prevention and management of infertility and sexual
dysfunction pursuant to ethical norms and medical
standards;
(10) Care of the elderly women beyond their child-bearing
years; and

The undisputed fact, however, is that the World Health Organization reported
that the Filipino maternal mortality rate dropped to 48 percent from 1990 to
2008, 236 although there was still no RH Law at that time. Despite such
revelation, the proponents still insist that such number of maternal deaths
constitute a compelling state interest.
Granting that there are still deficiencies and flaws in the delivery of social
healthcare programs for Filipino women, they could not be solved by a
measure that puts an unwarrantable stranglehold on religious beliefs in
exchange for blind conformity.
Exception: Life Threatening Cases

(11) Management, treatment, and intervention of mental

health problems of women and girls. In addition, healthy
lifestyle activities are encouraged and promoted through
programs and projects as strategies in the prevention of
diseases.
(b) Comprehensive Health Information and Education. - The State shall
provide women in all sectors with appropriate, timely, complete, and
accurate information and education on all the above-stated aspects of
women's health in government education and training programs, with due
regard to the following:
(1) The natural and primary right and duty of parents in the
rearing of the youth and the development of moral
character and the right of children to be brought up in an
atmosphere of morality and rectitude for the enrichment
and strengthening of character;
(2) The formation of a person's sexuality that affirms
human dignity; and
(3) Ethical, legal, safe, and effective family planning
methods including fertility awareness.
As an afterthought, Asst. Solicitor General Hilbay eventually replied that the
compelling state interest was "Fifteen maternal deaths per day, hundreds of
thousands of unintended pregnancies, lives changed, x x x." 235 He, however,
failed to substantiate this point by concrete facts and figures from reputable
sources.

All this notwithstanding, the Court properly recognizes a valid exception set
forth in the law. While generally healthcare service providers cannot be
forced to render reproductive health care procedures if doing it would
contravene their religious beliefs, an exception must be made in lifethreatening cases that require the performance of emergency procedures. In
these situations, the right to life of the mother should be given preference,
considering that a referral by a medical practitioner would amount to a denial
of service, resulting to unnecessarily placing the life of a mother in grave
danger. Thus, during the oral arguments, Atty. Liban, representing CFC,
manifested: "the forced referral clause that we are objecting on grounds of
violation of freedom of religion does not contemplate an emergency."237
In a conflict situation between the life of the mother and the life of a child, the
doctor is morally obliged always to try to save both lives. If, however, it is
impossible, the resulting death to one should not be deliberate. Atty. Noche
explained:
Principle of Double-Effect. - May we please remind the principal author of
the RH Bill in the House of Representatives of the principle of double-effect
wherein intentional harm on the life of either the mother of the child is never
justified to bring about a "good" effect. In a conflict situation between the life
of the child and the life of the mother, the doctor is morally obliged always to
try to save both lives. However, he can act in favor of one (not necessarily
the mother) when it is medically impossible to save both, provided that no
direct harm is intended to the other. If the above principles are observed, the
loss of the child's life or the mother's life is not intentional and, therefore,
unavoidable. Hence, the doctor would not be guilty of abortion or murder.
The mother is never pitted against the child because both their lives are
equally valuable.238

Accordingly, if it is necessary to save the life of a mother, procedures

endangering the life of the child may be resorted to even if is against the
religious sentiments of the medical practitioner. As quoted above, whatever
burden imposed upon a medical practitioner in this case would have been
more than justified considering the life he would be able to save.

Section 2. Marriage, as an inviolable social institution, is the foundation of

the family and shall be protected by the State.
Section 3. The State shall defend:
The right of spouses to found a family in accordance with their religious
convictions and the demands of responsible parenthood;

Family Planning Seminars

Anent the requirement imposed under Section 15239 as a condition for the
issuance of a marriage license, the Court finds the same to be a reasonable
exercise of police power by the government. A cursory reading of the
assailed provision bares that the religious freedom of the petitioners is not at
all violated. All the law requires is for would-be spouses to attend a seminar
on parenthood, family planning breastfeeding and infant nutrition. It does not
even mandate the type of family planning methods to be included in the
seminar, whether they be natural or artificial. As correctly noted by the OSG,
those who receive any information during their attendance in the required
seminars are not compelled to accept the information given to them, are
completely free to reject the information they find unacceptable, and retain
the freedom to decide on matters of family life without the intervention of the
State.
4-The Family and the Right to Privacy
Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof
violates the provisions of the Constitution by intruding into marital privacy
and autonomy. It argues that it cultivates disunity and fosters animosity in
the family rather than promote its solidarity and total development.240

The right of children to assistance, including proper care and nutrition, and
special protection from all forms of neglect, abuse, cruelty, exploitation and
other conditions prejudicial to their development;
The right of the family to a family living wage and income; and
The right of families or family assoc1at1ons to participate in the planning and
implementation of policies and programs that affect them.
In this case, the RH Law, in its not-so-hidden desire to control population
growth, contains provisions which tend to wreck the family as a solid social
institution. It bars the husband and/or the father from participating in the
decision making process regarding their common future progeny. It likewise
deprives the parents of their authority over their minor daughter simply
because she is already a parent or had suffered a miscarriage.
The Family and Spousal Consent
Section 23(a) (2) (i) of the RH Law states:

The Court cannot but agree.

The following acts are prohibited:

The 1987 Constitution is replete with provisions strengthening the family as it

is the basic social institution. In fact, one article, Article XV, is devoted
entirely to the family.

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

ARTICLE
THE FAMILY

XV

Section 1. The State recognizes the Filipino family as the foundation of the
nation. Accordingly, it shall strengthen its solidarity and actively promote its
total development.

(2) refuse to perform legal and medically-safe reproductive health

procedures on any person of legal age on the ground of lack of consent or
authorization of the following persons in the following instances:
(i) Spousal consent in case of married persons: provided, That in case of
disagreement, the decision of the one undergoing the procedures shall
prevail. [Emphasis supplied]

The above provision refers to reproductive health procedures like tubal

litigation and vasectomy which, by their very nature, should require mutual
consent and decision between the husband and the wife as they affect
issues intimately related to the founding of a family. Section 3, Art. XV of the
Constitution espouses that the State shall defend the "right of the spouses to
found a family." One person cannot found a family. The right, therefore, is
shared by both spouses. In the same Section 3, their right "to participate in
the planning and implementation of policies and programs that affect them "
is equally recognized.
The RH Law cannot be allowed to infringe upon this mutual decision-making.
By giving absolute authority to the spouse who would undergo a procedure,
and barring the other spouse from participating in the decision would drive a
wedge between the husband and wife, possibly result in bitter animosity, and
endanger the marriage and the family, all for the sake of reducing the
population. This would be a marked departure from the policy of the State to
protect marriage as an inviolable social institution.241
Decision-making involving a reproductive health procedure is a private
matter which belongs to the couple, not just one of them. Any decision they
would reach would affect their future as a family because the size of the
family or the number of their children significantly matters. The decision
whether or not to undergo the procedure belongs exclusively to, and shared
by, both spouses as one cohesive unit as they chart their own destiny. It is a
constitutionally guaranteed private right. Unless it prejudices the State,
which has not shown any compelling interest, the State should see to it that
they chart their destiny together as one family.
As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No.
9710, otherwise known as the "Magna Carta for Women," provides that
women shall have equal rights in all matters relating to marriage and family
relations, including the joint decision on the number and spacing of their
children. Indeed, responsible parenthood, as Section 3(v) of the RH Law
states, is a shared responsibility between parents. Section 23(a)(2)(i) of the
RH Law should not be allowed to betray the constitutional mandate to
protect and strengthen the family by giving to only one spouse the absolute
authority to decide whether to undergo reproductive health procedure.242
The right to chart their own destiny together falls within the protected zone of
marital privacy and such state intervention would encroach into the zones of
spousal privacy guaranteed by the Constitution. In our jurisdiction, the right
to privacy was first recognized in Marje v. Mutuc, 243 where the Court,
speaking through Chief Justice Fernando, held that "the right to privacy as

such is accorded recognition independently of its identification with liberty; in

itself, it is fully deserving of constitutional protection." 244 Marje adopted the
ruling of the US Supreme Court in Griswold v. Connecticut, 245 where Justice
William O. Douglas wrote:
We deal with a right of privacy older than the Bill of Rights -older than our
political parties, older than our school system. Marriage is a coming together
for better or for worse, hopefully enduring, and intimate to the degree of
being sacred. It is an association that promotes a way of life, not causes; a
harmony in living, not political faiths; a bilateral loyalty, not commercial or
social projects. Yet it is an association for as noble a purpose as any
involved in our prior decisions.
Ironically, Griswold invalidated a Connecticut statute which made the use of
contraceptives a criminal offense on the ground of its amounting to an
unconstitutional invasion of the right to privacy of married persons.
Nevertheless, it recognized the zone of privacy rightfully enjoyed by couples.
Justice Douglas in Grisworld wrote that "specific guarantees in the Bill of
Rights have penumbras, formed by emanations from those guarantees that
help give them life and substance. Various guarantees create zones of
privacy."246
At any rate, in case of conflict between the couple, the courts will decide.
The Family and Parental Consent
Equally deplorable is the debarment of parental consent in cases where the
minor, who will be undergoing a procedure, is already a parent or has had a
miscarriage. Section 7 of the RH law provides:
SEC. 7. Access to Family Planning. x x x.
No person shall be denied information and access to family planning
services, whether natural or artificial: Provided, That minors will not be
allowed access to modern methods of family planning without written
consent from their parents or guardian/s except when the minor is already a
parent or has had a miscarriage.
There can be no other interpretation of this provision except that when a
minor is already a parent or has had a miscarriage, the parents are excluded
from the decision making process of the minor with regard to family

planning. Even if she is not yet emancipated, the parental authority is

already cut off just because there is a need to tame population growth.
It is precisely in such situations when a minor parent needs the comfort,
care, advice, and guidance of her own parents. The State cannot replace her
natural mother and father when it comes to providing her needs and comfort.
To say that their consent is no longer relevant is clearly anti-family. It does
not promote unity in the family. It is an affront to the constitutional mandate
to protect and strengthen the family as an inviolable social institution.
More alarmingly, it disregards and disobeys the constitutional mandate that
"the natural and primary right and duty of parents in the rearing of the youth
for civic efficiency and the development of moral character shall receive the
support of the Government."247 In this regard, Commissioner Bernas wrote:
The 1987 provision has added the adjective "primary" to modify the right of
parents. It imports the assertion that the right of parents is superior to that of
the State.248 [Emphases supplied]
To insist on a rule that interferes with the right of parents to exercise parental
control over their minor-child or the right of the spouses to mutually decide
on matters which very well affect the very purpose of marriage, that is, the
establishment of conjugal and family life, would result in the violation of
one's privacy with respect to his family. It would be dismissive of the unique
and strongly-held Filipino tradition of maintaining close family ties and
violative of the recognition that the State affords couples entering into the
special contract of marriage to as one unit in forming the foundation of the
family and society.
The State cannot, without a compelling state interest, take over the role of
parents in the care and custody of a minor child, whether or not the latter is
already a parent or has had a miscarriage. Only a compelling state interest
can justify a state substitution of their parental authority.
First Exception: Access to Information
Whether with respect to the minor referred to under the exception provided
in the second paragraph of Section 7 or with respect to the consenting
spouse under Section 23(a)(2)(i), a distinction must be made. There must be
a differentiation between access to information about family planning
services, on one hand, and access to the reproductive health procedures
and modern family planning methods themselves, on the other. Insofar as

access to information is concerned, the Court finds no constitutional

objection to the acquisition of information by the minor referred to under the
exception in the second paragraph of Section 7 that would enable her to
take proper care of her own body and that of her unborn child. After all,
Section 12, Article II of the Constitution mandates the State to protect both
the life of the mother as that of the unborn child. Considering that information
to enable a person to make informed decisions is essential in the protection
and maintenance of ones' health, access to such information with respect to
reproductive health must be allowed. In this situation, the fear that parents
might be deprived of their parental control is unfounded because they are
not prohibited to exercise parental guidance and control over their minor
child and assist her in deciding whether to accept or reject the information
received.
Second Exception: Life Threatening Cases
As in the case of the conscientious objector, an exception must be made in
life-threatening cases that require the performance of emergency
procedures. In such cases, the life of the minor who has already suffered a
miscarriage and that of the spouse should not be put at grave risk simply for
lack of consent. It should be emphasized that no person should be denied
the appropriate medical care urgently needed to preserve the primordial
right, that is, the right to life.
In this connection, the second sentence of Section 23(a)(2)(ii) 249 should be
struck down. By effectively limiting the requirement of parental consent to
"only in elective surgical procedures," it denies the parents their right of
parental authority in cases where what is involved are "non-surgical
procedures." Save for the two exceptions discussed above, and in the case
of an abused child as provided in the first sentence of Section 23(a)(2)(ii),
the parents should not be deprived of their constitutional right of parental
authority. To deny them of this right would be an affront to the constitutional
mandate to protect and strengthen the family.
5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof,
mandating the teaching of Age-and Development-Appropriate Reproductive
Health Education under threat of fine and/or imprisonment violates the
principle of academic freedom . According to the petitioners, these
provisions effectively force educational institutions to teach reproductive
health education even if they believe that the same is not suitable to be
taught to their students.250 Citing various studies conducted in the United

States and statistical data gathered in the country, the petitioners aver that
the prevalence of contraceptives has led to an increase of out-of-wedlock
births; divorce and breakdown of families; the acceptance of abortion and
euthanasia; the "feminization of poverty"; the aging of society; and promotion
of promiscuity among the youth.251
At this point, suffice it to state that any attack on the validity of Section 14 of
the RH Law is premature because the Department of Education, Culture and
Sports has yet to formulate a curriculum on age-appropriate reproductive
health education. One can only speculate on the content, manner and
medium of instruction that will be used to educate the adolescents and
whether they will contradict the religious beliefs of the petitioners and
validate their apprehensions. Thus, considering the premature nature of this
particular issue, the Court declines to rule on its constitutionality or validity.

Furthermore, as Section 14 also mandates that the mandatory reproductive

health education program shall be developed in conjunction with parentteacher-community associations, school officials and other interest groups, it
could very well be said that it will be in line with the religious beliefs of the
petitioners. By imposing such a condition, it becomes apparent that the
petitioners' contention that Section 14 violates Article XV, Section 3(1) of the
Constitution is without merit.254
While the Court notes the possibility that educators might raise their
objection to their participation in the reproductive health education program
provided under Section 14 of the RH Law on the ground that the same
violates their religious beliefs, the Court reserves its judgment should an
actual case be filed before it.
6 - Due Process

At any rate, Section 12, Article II of the 1987 Constitution provides that the
natural and primary right and duty of parents in the rearing of the youth for
civic efficiency and development of moral character shall receive the support
of the Government. Like the 1973 Constitution and the 1935 Constitution,
the 1987 Constitution affirms the State recognition of the invaluable role of
parents in preparing the youth to become productive members of society.
Notably, it places more importance on the role of parents in the development
of their children by recognizing that said role shall be "primary," that is, that
the right of parents in upbringing the youth is superior to that of the State.252
It is also the inherent right of the State to act as parens patriae to aid parents
in the moral development of the youth. Indeed, the Constitution makes
mention of the importance of developing the youth and their important role in
nation building.253 Considering that Section 14 provides not only for the ageappropriate-reproductive health education, but also for values formation; the
development of knowledge and skills in self-protection against
discrimination; sexual abuse and violence against women and children and
other forms of gender based violence and teen pregnancy; physical, social
and emotional changes in adolescents; women's rights and children's rights;
responsible teenage behavior; gender and development; and responsible
parenthood, and that Rule 10, Section 11.01 of the RH-IRR and Section 4(t)
of the RH Law itself provides for the teaching of responsible teenage
behavior, gender sensitivity and physical and emotional changes among
adolescents - the Court finds that the legal mandate provided under the
assailed provision supplements, rather than supplants, the rights and duties
of the parents in the moral development of their children.

The petitioners contend that the RH Law suffers from vagueness and, thus
violates the due process clause of the Constitution. According to them,
Section 23 (a)(l) mentions a "private health service provider" among those
who may be held punishable but does not define who is a "private health
care service provider." They argue that confusion further results since
Section 7 only makes reference to a "private health care institution."
The petitioners also point out that Section 7 of the assailed legislation
exempts hospitals operated by religious groups from rendering reproductive
health service and modern family planning methods. It is unclear, however, if
these institutions are also exempt from giving reproductive health
information under Section 23(a)(l), or from rendering reproductive health
procedures under Section 23(a)(2).
Finally, it is averred that the RH Law punishes the withholding, restricting
and providing of incorrect information, but at the same time fails to define
"incorrect information."
The arguments fail to persuade.
A statute or act suffers from the defect of vagueness when it lacks
comprehensible standards that men of common intelligence must
necessarily guess its meaning and differ as to its application. It is repugnant
to the Constitution in two respects: (1) it violates due process for failure to
accord persons, especially the parties targeted by it, fair notice of the
conduct to avoid; and (2) it leaves law enforcers unbridled discretion in

carrying out its provisions and becomes an arbitrary flexing of the

Government muscle.255 Moreover, in determining whether the words used in
a statute are vague, words must not only be taken in accordance with their
plain meaning alone, but also in relation to other parts of the statute. It is a
rule that every part of the statute must be interpreted with reference to the
context, that is, every part of it must be construed together with the other
parts and kept subservient to the general intent of the whole enactment.256

The same can be said with respect to the contention that the RH Law
punishes health care service providers who intentionally withhold, restrict
and provide incorrect information regarding reproductive health programs
and services. For ready reference, the assailed provision is hereby quoted
as follows:

As correctly noted by the OSG, in determining the definition of "private

health care service provider," reference must be made to Section 4(n) of the
RH Law which defines a "public health service provider," viz:

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

(n) Public health care service provider refers to: (1) public health care
institution, which is duly licensed and accredited and devoted primarily to the
maintenance and operation of facilities for health promotion, disease
prevention, diagnosis, treatment and care of individuals suffering from
illness, disease, injury, disability or deformity, or in need of obstetrical or
other medical and nursing care; (2) public health care professional, who is a
doctor of medicine, a nurse or a midvvife; (3) public health worker engaged
in the delivery of health care services; or (4) barangay health worker who
has undergone training programs under any accredited government and
NGO and who voluntarily renders primarily health care services in the
community after having been accredited to function as such by the local
health board in accordance with the guidelines promulgated by the
Department of Health (DOH) .
Further, the use of the term "private health care institution" in Section 7 of
the law, instead of "private health care service provider," should not be a
cause of confusion for the obvious reason that they are used synonymously.
The Court need not belabor the issue of whether the right to be exempt from
being obligated to render reproductive health service and modem family
planning methods, includes exemption from being obligated to give
reproductive health information and to render reproductive health
procedures. Clearly, subject to the qualifications and exemptions earlier
discussed, the right to be exempt from being obligated to render
reproductive health service and modem family planning methods,
necessarily includes exemption from being obligated to give reproductive
health information and to render reproductive health procedures. The terms
"service" and "methods" are broad enough to include the providing of
information and the rendering of medical procedures.

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

(1) Knowingly withhold information or restrict the dissemination thereof, and/

or intentionally provide incorrect information regarding programs and
services on reproductive health including the right to informed choice and
access to a full range of legal, medically-safe, non-abortifacient and effective
family planning methods;
From its plain meaning, the word "incorrect" here denotes failing to agree
with a copy or model or with established rules; inaccurate, faulty; failing to
agree with the requirements of duty, morality or propriety; and failing to
coincide with the truth. 257 On the other hand, the word "knowingly" means
with awareness or deliberateness that is intentional. 258 Used together in
relation to Section 23(a)(l), they connote a sense of malice and ill motive to
mislead or misrepresent the public as to the nature and effect of programs
and services on reproductive health. Public health and safety demand that
health care service providers give their honest and correct medical
information in accordance with what is acceptable in medical practice. While
health care service providers are not barred from expressing their own
personal opinions regarding the programs and services on reproductive
health, their right must be tempered with the need to provide public health
and safety. The public deserves no less.
7-Egual Protection
The petitioners also claim that the RH Law violates the equal protection
clause under the Constitution as it discriminates against the poor because it
makes them the primary target of the government program that promotes
contraceptive use . They argue that, rather than promoting reproductive
health among the poor, the RH Law introduces contraceptives that would
effectively reduce the number of the poor. Their bases are the various
provisions in the RH Law dealing with the poor, especially those mentioned
in the guiding principles259 and definition of terms260 of the law.

They add that the exclusion of private educational institutions from the
mandatory reproductive health education program imposed by the RH Law
renders it unconstitutional.
In Biraogo v. Philippine Truth Commission,261 the Court had the occasion to
expound on the concept of equal protection. Thus:
One of the basic principles on which this government was founded is that of
the equality of right which is embodied in Section 1, Article III of the 1987
Constitution. The equal protection of the laws is embraced in the concept of
due process, as every unfair discrimination offends the requirements of
justice and fair play. It has been embodied in a separate clause, however, to
provide for a more specific guaranty against any form of undue favoritism or
hostility from the government. Arbitrariness in general may be challenged on
the basis of the due process clause. But if the particular act assailed
partakes of an unwarranted partiality or prejudice, the sharper weapon to cut
it down is the equal protection clause.
"According to a long line of decisions, equal protection simply requires that
all persons or things similarly situated should be treated alike, both as to
rights conferred and responsibilities imposed." It "requires public bodies and
inst itutions to treat similarly situated individuals in a similar manner." "The
purpose of the equal protection clause is to secure every person within a
state's jurisdiction against intentional and arbitrary discrimination, whether
occasioned by the express terms of a statue or by its improper execution
through the state's duly constituted authorities." "In other words, the concept
of equal justice under the law requires the state to govern impartially, and it
may not draw distinctions between individuals solely on differences that are
irrelevant to a legitimate governmental objective."
The equal protection clause is aimed at all official state actions, not just
those of the legislature. Its inhibitions cover all the departments of the
government including the political and executive departments, and extend to
all actions of a state denying equal protection of the laws, through whatever
agency or whatever guise is taken.
It, however, does not require the universal application of the laws to all
persons or things without distinction. What it simply requires is equality
among equals as determined according to a valid classification. Indeed, the
equal protection clause permits classification. Such classification, however,
to be valid must pass the test of reasonableness. The test has four
requisites: (1) The classification rests on substantial distinctions; (2) It is
germane to the purpose of the law; (3) It is not limited to existing conditions

only; and (4) It applies equally to all members of the same class. "Superficial
differences do not make for a valid classification."
For a classification to meet the requirements of constitutionality, it must
include or embrace all persons who naturally belong to the class. "The
classification will be regarded as invalid if all the members of the class are
not similarly treated, both as to rights conferred and obligations imposed. It
is not necessary that the classification be made with absolute symmetry, in
the sense that the members of the class should possess the same
characteristics in equal degree. Substantial similarity will suffice; and as long
as this is achieved, all those covered by the classification are to be treated
equally. The mere fact that an individual belonging to a class differs from the
other members, as long as that class is substantially distinguishable from all
others, does not justify the non-application of the law to him."
The classification must not be based on existing circumstances only, or so
constituted as to preclude addition to the number included in the class. It
must be of such a nature as to embrace all those who may thereafter be in
similar circumstances and conditions. It must not leave out or "underinclude"
those that should otherwise fall into a certain classification. [Emphases
supplied; citations excluded]
To provide that the poor are to be given priority in the government's
reproductive health care program is not a violation of the equal protection
clause. In fact, it is pursuant to Section 11, Article XIII of the Constitution
which recognizes the distinct necessity to address the needs of the
underprivileged by providing that they be given priority in addressing the
health development of the people. Thus:
Section 11. The State shall adopt an integrated and comprehensive
approach to health development which shall endeavor to make essential
goods, health and other social services available to all the people at
affordable cost. There shall be priority for the needs of the underprivileged,
sick, elderly, disabled, women, and children. The State shall endeavor to
provide free medical care to paupers.
It should be noted that Section 7 of the RH Law prioritizes poor and
marginalized couples who are suffering from fertility issues and desire to
have children. There is, therefore, no merit to the contention that the RH Law
only seeks to target the poor to reduce their number. While the RH Law
admits the use of contraceptives, it does not, as elucidated above, sanction
abortion. As Section 3(1) explains, the "promotion and/or stabilization of the

population growth rate is incidental to the advancement of reproductive

health."
Moreover, the RH Law does not prescribe the number of children a couple
may have and does not impose conditions upon couples who intend to have
children. While the petitioners surmise that the assailed law seeks to charge
couples with the duty to have children only if they would raise them in a truly
humane way, a deeper look into its provisions shows that what the law seeks
to do is to simply provide priority to the poor in the implementation of
government programs to promote basic reproductive health care.
With respect to the exclusion of private educational institutions from the
mandatory reproductive health education program under Section 14, suffice
it to state that the mere fact that the children of those who are less fortunate
attend public educational institutions does not amount to substantial
distinction sufficient to annul the assailed provision. On the other hand,
substantial distinction rests between public educational institutions and
private educational institutions, particularly because there is a need to
recognize the academic freedom of private educational institutions especially
with respect to religious instruction and to consider their sensitivity towards
the teaching of reproductive health education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is constitutionally infirm as it
violates the constitutional prohibition against involuntary servitude. They
posit that Section 17 of the assailed legislation requiring private and nongovernment health care service providers to render forty-eight (48) hours of
pro bono reproductive health services, actually amounts to involuntary
servitude because it requires medical practitioners to perform acts against
their will.262
The OSG counters that the rendition of pro bono services envisioned in
Section 17 can hardly be considered as forced labor analogous to slavery,
as reproductive health care service providers have the discretion as to the
manner and time of giving pro bono services. Moreover, the OSG points out
that the imposition is within the powers of the government, the accreditation
of medical practitioners with PhilHealth being a privilege and not a right.
The point of the OSG is well-taken.

It should first be mentioned that the practice of medicine is undeniably

imbued with public interest that it is both a power and a duty of the State to
control and regulate it in order to protect and promote the public welfare.
Like the legal profession, the practice of medicine is not a right but a
privileged burdened with conditions as it directly involves the very lives of the
people. A fortiori, this power includes the power of Congress 263 to prescribe
the qualifications for the practice of professions or trades which affect the
public welfare, the public health, the public morals, and the public safety;
and to regulate or control such professions or trades, even to the point of
revoking such right altogether.264
Moreover, as some petitioners put it, the notion of involuntary servitude
connotes the presence of force, threats, intimidation or other similar means
of coercion and compulsion.265 A reading of the assailed provision, however,
reveals that it only encourages private and non- government reproductive
healthcare service providers to render pro bono service. Other than nonaccreditation with PhilHealth, no penalty is imposed should they choose to
do otherwise. Private and non-government reproductive healthcare service
providers also enjoy the liberty to choose which kind of health service they
wish to provide, when, where and how to provide it or whether to provide it
all. Clearly, therefore, no compulsion, force or threat is made upon them to
render pro bono service against their will. While the rendering of such
service was made a prerequisite to accreditation with PhilHealth, the Court
does not consider the same to be an unreasonable burden, but rather, a
necessary incentive imposed by Congress in the furtherance of a perceived
legitimate state interest.
Consistent with what the Court had earlier discussed, however, it should be
emphasized that conscientious objectors are exempt from this provision as
long as their religious beliefs and convictions do not allow them to render
reproductive health service, pro bona or otherwise.
9-Delegation of Authority to the FDA
The petitioners likewise question the delegation by Congress to the FDA of
the power to determine whether or not a supply or product is to be included
in the Essential Drugs List (EDL).266
The Court finds nothing wrong with the delegation. The FDA does not only
have the power but also the competency to evaluate, register and cover
health services and methods. It is the only government entity empowered to
render such services and highly proficient to do so. It should be understood

that health services and methods fall under the gamut of terms that are
associated with what is ordinarily understood as "health products."

reasonably indicates that said product has caused or contributed to

the death, serious illness or serious injury to a consumer, a patient,
or any person;

In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No.

9711 reads:

"(j) To issue cease and desist orders motu propio or upon verified
complaint for health products, whether or not registered with the
FDA Provided, That for registered health products, the cease and
desist order is valid for thirty (30) days and may be extended for
sixty ( 60) days only after due process has been observed;

SEC. 4. To carry out the provisions of this Act, there is hereby created an
office to be called the Food and Drug Administration (FDA) in the
Department of Health (DOH). Said Administration shall be under the Office
of the Secretary and shall have the following functions, powers and duties:

"(k) After due process, to order the ban, recall, and/or withdrawal of
any health product found to have caused death, serious illness or
serious injury to a consumer or patient, or is found to be imminently
injurious, unsafe, dangerous, or grossly deceptive, and to require
all concerned to implement the risk management plan which is a
requirement for the issuance of the appropriate authorization;

"(a) To administer the effective implementation of this Act and of the

rules and regulations issued pursuant to the same;
"(b) To assume primary jurisdiction in the collection of samples of
health products;
"(c) To analyze and inspect health products in connection with the
implementation of this Act;
"(d) To establish analytical data to serve as basis for the
preparation of health products standards, and to recommend
standards of identity, purity, safety, efficacy, quality and fill of
container;
"(e) To issue certificates of compliance with technical requirements
to serve as basis for the issuance of appropriate authorization and
spot-check for compliance with regulations regarding operation of
manufacturers, importers, exporters, distributors, wholesalers, drug
outlets, and other establishments and facilities of health products,
as determined by the FDA;
"x x x
"(h) To conduct appropriate tests on all applicable health products
prior to the issuance of appropriate authorizations to ensure safety,
efficacy, purity, and quality;
"(i) To require all manufacturers, traders, distributors, importers,
exporters, wholesalers, retailers, consumers, and non-consumer
users of health products to report to the FDA any incident that

x x x.
As can be gleaned from the above, the functions, powers and duties of the
FDA are specific to enable the agency to carry out the mandates of the law.
Being the country's premiere and sole agency that ensures the safety of
food and medicines available to the public, the FDA was equipped with the
necessary powers and functions to make it effective. Pursuant to the
principle of necessary implication, the mandate by Congress to the FDA to
ensure public health and safety by permitting only food and medicines that
are safe includes "service" and "methods." From the declared policy of the
RH Law, it is clear that Congress intended that the public be given only
those medicines that are proven medically safe, legal, non-abortifacient, and
effective in accordance with scientific and evidence-based medical research
standards. The philosophy behind the permitted delegation was explained in
Echagaray v. Secretary of Justice,267 as follows:
The reason is the increasing complexity of the task of the government and
the growing inability of the legislature to cope directly with the many
problems demanding its attention. The growth of society has ramified its
activities and created peculiar and sophisticated problems that the
legislature cannot be expected reasonably to comprehend. Specialization
even in legislation has become necessary. To many of the problems
attendant upon present day undertakings, the legislature may not have the
competence, let alone the interest and the time, to provide the required
direct and efficacious, not to say specific solutions.

10- Autonomy of Local Governments and the Autonomous Region

of Muslim Mindanao (ARMM)
As for the autonomy of local governments, the petitioners claim that the RH
Law infringes upon the powers devolved to local government units (LGUs)
under Section 17 of the Local Government Code. Said Section 17 vested
upon the LGUs the duties and functions pertaining to the delivery of basic
services and facilities, as follows:
SECTION 17. Basic Services and Facilities.
(a) Local government units shall endeavor to be self-reliant and
shall continue exercising the powers and discharging the duties and
functions currently vested upon them. They shall also discharge the
functions and responsibilities of national agencies and offices
devolved to them pursuant to this Code. Local government units
shall likewise exercise such other powers and discharge such other
functions and responsibilities as are necessary, appropriate, or
incidental to efficient and effective provision of the basic services
and facilities enumerated herein.
(b) Such basic services and facilities include, but are not limited to,
x x x.

The essence of this express reservation of power by the national

government is that, unless an LGU is particularly designated as the
implementing agency, it has no power over a program for which funding has
been provided by the national government under the annual general
appropriations act, even if the program involves the delivery of basic
services within the jurisdiction of the LGU. 269 A complete relinquishment of
central government powers on the matter of providing basic facilities and
services cannot be implied as the Local Government Code itself weighs
against it.270
In this case, a reading of the RH Law clearly shows that whether it pertains
to the establishment of health care facilities,271 the hiring of skilled health
professionals,272 or the training of barangay health workers, 273 it will be the
national government that will provide for the funding of its implementation.
Local autonomy is not absolute. The national government still has the say
when it comes to national priority programs which the local government is
called upon to implement like the RH Law.
Moreover, from the use of the word "endeavor," the LG Us are merely
encouraged to provide these services. There is nothing in the wording of the
law which can be construed as making the availability of these services
mandatory for the LGUs. For said reason, it cannot be said that the RH Law
amounts to an undue encroachment by the national government upon the
autonomy enjoyed by the local governments.
The ARMM

While the aforementioned provision charges the LGUs to take on

the functions and responsibilities that have already been devolved
upon them from the national agencies on the aspect of providing for
basic services and facilities in their respective jurisdictions,
paragraph (c) of the same provision provides a categorical
exception of cases involving nationally-funded projects, facilities,
programs and services.268 Thus:
(c) Notwithstanding the provisions of subsection (b) hereof, public
works and infrastructure projects and other facilities, programs and
services funded by the National Government under the annual
General Appropriations Act, other special laws, pertinent executive
orders, and those wholly or partially funded from foreign sources,
are not covered under this Section, except in those cases where
the local government unit concerned is duly designated as the
implementing agency for such projects, facilities, programs and
services. [Emphases supplied]

The fact that the RH Law does not intrude in the autonomy of local
governments can be equally applied to the ARMM. The RH Law does not
infringe upon its autonomy. Moreover, Article III, Sections 6, 10 and 11 of
R.A. No. 9054, or the organic act of the ARMM, alluded to by petitioner Tillah
to justify the exemption of the operation of the RH Law in the autonomous
region, refer to the policy statements for the guidance of the regional
government. These provisions relied upon by the petitioners simply delineate
the powers that may be exercised by the regional government, which can, in
no manner, be characterized as an abdication by the State of its power to
enact legislation that would benefit the general welfare. After all, despite the
veritable autonomy granted the ARMM, the Constitution and the supporting
jurisprudence, as they now stand, reject the notion of imperium et imperio in
the
relationship
between
the
national
and
the
regional
governments.274 Except for the express and implied limitations imposed on it
by the Constitution, Congress cannot be restricted to exercise its inherent

and plenary power to legislate on all subjects which extends to all matters of
general concern or common interest.275
11 - Natural Law
With respect to the argument that the RH Law violates natural law, 276 suffice
it to say that the Court does not duly recognize it as a legal basis for
upholding or invalidating a law. Our only guidepost is the Constitution. While
every law enacted by man emanated from what is perceived as natural law,
the Court is not obliged to see if a statute, executive issuance or ordinance
is in conformity to it. To begin with, it is not enacted by an acceptable
legitimate body. Moreover, natural laws are mere thoughts and notions on
inherent rights espoused by theorists, philosophers and theologists. The
jurists of the philosophical school are interested in the law as an abstraction,
rather than in the actual law of the past or present.277 Unless, a natural right
has been transformed into a written law, it cannot serve as a basis to strike
down a law. In Republic v. Sandiganbayan, 278 the very case cited by the
petitioners, it was explained that the Court is not duty-bound to examine
every law or action and whether it conforms with both the Constitution and
natural law. Rather, natural law is to be used sparingly only in the most
peculiar of circumstances involving rights inherent to man where no law is
applicable.279
At any rate, as earlier expounded, the RH Law does not sanction the taking
away of life. It does not allow abortion in any shape or form. It only seeks to
enhance the population control program of the government by providing
information and making non-abortifacient contraceptives more readily
available to the public, especially to the poor.

In conformity with the principle of separation of Church and State, one

religious group cannot be allowed to impose its beliefs on the rest of the
society. Philippine modem society leaves enough room for diversity and
pluralism. As such, everyone should be tolerant and open-minded so that
peace and harmony may continue to reign as we exist alongside each other.
As healthful as the intention of the RH Law may be, the idea does not
escape the Court that what it seeks to address is the problem of rising
poverty and unemployment in the country. Let it be said that the cause of
these perennial issues is not the large population but the unequal distribution
of wealth. Even if population growth is controlled, poverty will remain as long
as the country's wealth remains in the hands of the very few.
At any rate, population control may not be beneficial for the country in the
long run. The European and Asian countries, which embarked on such a
program generations ago , are now burdened with ageing populations. The
number of their young workers is dwindling with adverse effects on their
economy. These young workers represent a significant human capital which
could have helped them invigorate, innovate and fuel their economy. These
countries are now trying to reverse their programs, but they are still
struggling. For one, Singapore, even with incentives, is failing.
And in this country, the economy is being propped up by remittances from
our Overseas Filipino Workers. This is because we have an ample supply of
young able-bodied workers. What would happen if the country would be
weighed down by an ageing population and the fewer younger generation
would not be able to support them? This would be the situation when our
total fertility rate would go down below the replacement level of two (2)
children per woman.280

Facts and Fallacies

and the Wisdom of the Law
In general, the Court does not find the RH Law as unconstitutional insofar as
it seeks to provide access to medically-safe, non-abortifacient, effective,
legal, affordable, and quality reproductive healthcare services, methods,
devices, and supplies. As earlier pointed out, however, the religious freedom
of some sectors of society cannot be trampled upon in pursuit of what the
law hopes to achieve. After all, the Constitutional safeguard to religious
freedom is a recognition that man stands accountable to an authority higher
than the State.

Indeed, at the present, the country has a population problem, but the State
should not use coercive measures (like the penal provisions of the RH Law
against conscientious objectors) to solve it. Nonetheless, the policy of the
Court is non-interference in the wisdom of a law.
x x x. But this Court cannot go beyond what the legislature has laid down. Its
duty is to say what the law is as enacted by the lawmaking body. That is not
the same as saying what the law should be or what is the correct rule in a
given set of circumstances. It is not the province of the judiciary to look into
the wisdom of the law nor to question the policies adopted by the legislative
branch. Nor is it the business of this Tribunal to remedy every unjust
situation that may arise from the application of a particular law. It is for the
legislature to enact remedial legislation if that would be necessary in the

premises. But as always, with apt judicial caution and cold neutrality, the
Court must carry out the delicate function of interpreting the law, guided by
the Constitution and existing legislation and mindful of settled jurisprudence.
The Court's function is therefore limited, and accordingly, must confine itself
to the judicial task of saying what the law is, as enacted by the lawmaking
body.281
Be that as it may, it bears reiterating that the RH Law is a mere compilation
and enhancement of the prior existing contraceptive and reproductive health
laws, but with coercive measures. Even if the Court decrees the RH Law as
entirely unconstitutional, there will still be the Population Act (R.A. No. 6365),
the Contraceptive Act (R.A. No. 4729) and the reproductive health for
women or The Magna Carta of Women (R.A. No. 9710), sans the coercive
provisions of the assailed legislation. All the same, the principle of "noabortion" and "non-coercion" in the adoption of any family planning method
should be maintained.
WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the
Court declares R.A. No. 10354 as NOT UNCONSTITUTIONAL except with
respect
to
the
following
provisions
which
are
declared
UNCONSTITUTIONAL:
1) Section 7 and the corresponding provision in the RH-IRR insofar
as they: a) require private health facilities and non-maternity
specialty hospitals and hospitals owned and operated by a religious
group to refer patients, not in an emergency or life-threatening
case, as defined under Republic Act No. 8344, to another health
facility which is conveniently accessible; and b) allow minor-parents
or minors who have suffered a miscarriage access to modem
methods of family planning without written consent from their
parents or guardian/s;
2) Section 23(a)(l) and the corresponding provision in the RH-IRR,
particularly Section 5 .24 thereof, insofar as they punish any
healthcare service provider who fails and or refuses to disseminate
information regarding programs and services on reproductive
health regardless of his or her religious beliefs.
3) Section 23(a)(2)(i) and the corresponding provision in the RHIRR insofar as they allow a married individual, not in an emergency
or life-threatening case, as defined under Republic Act No. 8344, to
undergo reproductive health procedures without the consent of the
spouse;

4) Section 23(a)(2)(ii) and the corresponding provision in the RHIRR insofar as they limit the requirement of parental consent only to
elective surgical procedures.
5) Section 23(a)(3) and the corresponding provision in the RH-IRR,
particularly Section 5.24 thereof, insofar as they punish any
healthcare service provider who fails and/or refuses to refer a
patient not in an emergency or life-threatening case, as defined
under Republic Act No. 8344, to another health care service
provider within the same facility or one which is conveniently
accessible regardless of his or her religious beliefs;
6) Section 23(b) and the corresponding provision in the RH-IRR,
particularly Section 5 .24 thereof, insofar as they punish any public
officer who refuses to support reproductive health programs or shall
do any act that hinders the full implementation of a reproductive
health program, regardless of his or her religious beliefs;
7) Section 17 and the corresponding prov1s10n in the RH-IRR
regarding the rendering of pro bona reproductive health service in
so far as they affect the conscientious objector in securing
PhilHealth accreditation; and
8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added
the qualifier "primarily" in defining abortifacients and contraceptives,
as they are ultra vires and, therefore, null and void for contravening
Section 4(a) of the RH Law and violating Section 12, Article II of the
Constitution.
The Status Quo Ante Order issued by the Court on March 19, 2013 as
extended by its Order, dated July 16, 2013 , is hereby LIFTED, insofar as the
provisions of R.A. No. 10354 which have been herein declared as
constitutional.
SO ORDERED.

THE PROVINCE OF NORTH COTABATO, duly

represented by GOVERNOR JESUS SACDALAN
and/or VICE-GOVERNOR EMMANUEL PIOL, for
and in his own behalf,
Petitioners,
- versus THE GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES PEACE PANEL ON ANCESTRAL
DOMAIN (GRP), represented by SEC. RODOLFO
GARCIA, ATTY. LEAH ARMAMENTO, ATTY.
SEDFREY CANDELARIA, MARK RYAN SULLIVAN
and/or GEN. HERMOGENES ESPERON, JR., the
latter in his capacity as the present and dulyappointed Presidential Adviser on the Peace
Process (OPAPP) or the so-called Office of the
Presidential Adviser on the Peace Process,
Respondents.
x--------------------------------------------x
CITY GOVERNMENT
OF
ZAMBOANGA,
as
represented by HON. CELSO L. LOBREGAT, City
Mayor of Zamboanga, and in his personal capacity
as resident of the City of Zamboanga, Rep. MA.
ISABELLE G. CLIMACO, District 1, and Rep. ERICO
BASILIO A. FABIAN, District 2, City ofZamboanga,
Petitioners,

G.R. No. 183591

Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, &
BRION, JJ.
Promulgated:
October 14, 2008

G.R. No. 183752

- versus THE GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES PEACE NEGOTIATING PANEL (GRP),
as represented by RODOLFO C. GARCIA, LEAH
ARMAMENTO, SEDFREY CANDELARIA, MARK
RYAN SULLIVAN and HERMOGENES ESPERON, in
his capacity as the Presidential Adviser on Peace
Process,
Respondents.
x--------------------------------------------x
THE CITY OF ILIGAN, duly represented by CITY
MAYOR LAWRENCE LLUCH CRUZ,
Petitioner,

as represented by HON. RODOLFO C. GARCIA and

HON. HERMOGENES ESPERON, in his capacity as
the Presidential Adviser of Peace Process,
Respondents.
x--------------------------------------------x
ERNESTO M. MACEDA, JEJOMAR C. BINAY, and
AQUILINO L. PIMENTEL III,
Petitioners,

- versus
THE GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES PEACE PANEL ON ANCESTRAL
DOMAIN (GRP), represented by SEC. RODOLFO
GARCIA, ATTY. LEAH ARMAMENTO, ATTY.
SEDFREY CANDELARIA, MARK RYAN SULLIVAN;
GEN. HERMOGENES ESPERON, JR., in his
capacity as the present and duly appointed
Presidential Adviser on the Peace Process; and/or
SEC. EDUARDO ERMITA, in his capacity as
Executive Secretary.
Respondents.
x--------------------------------------------x
THE
PROVINCIAL
GOVERNMENT
OF
ZAMBOANGA DEL NORTE, as represented by
HON. ROLANDO E. YEBES, in his capacity as
Provincial Governor, HON. FRANCIS H. OLVIS, in
his capacity as Vice-Governor and Presiding
Officer of the Sangguniang Panlalawigan,HON.
CECILIA JALOSJOS CARREON, Congresswoman,
1stCongressional District, HON. CESAR G.
JALOSJOS,
Congressman,
3rd Congressional
District, and Members of the Sangguniang
Panlalawigan of the Province of Zamboanga del
Norte, namely, HON. SETH FREDERICK P.
JALOSJOS, HON. FERNANDO R. CABIGON, JR.,
HON. ULDARICO M. MEJORADA II, HON. EDIONAR
M. ZAMORAS, HON. EDGAR J. BAGUIO, HON.
CEDRIC L. ADRIATICO, HON.FELIXBERTO C.
BOLANDO, HON. JOSEPH BRENDO C. AJERO,
HON. NORBIDEIRI B. EDDING, HON. ANECITO S.
DARUNDAY, HON. ANGELICA J. CARREON and
HON. LUZVIMINDA E. TORRINO,
Petitioners,

- versus G.R. No. 183893

- versus -

THE GOVERNMENT OF THE REPUBLIC OF THE

PHILIPPINES PEACE NEGOTIATING PANEL,
represented by its Chairman RODOLFO C.
GARCIA, and the MORO ISLAMIC LIBERATION
FRONT PEACE NEGOTIATING PANEL, represented
by its Chairman MOHAGHER IQBAL,
Respondents.
x--------------------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS TAMANO,
Petitioners-in-Intervention.
x--------------------------------------------x
SEN. MANUEL A. ROXAS,
Petitioners-in-Intervention.
x--------------------------------------------x
MUNICIPALITY OF LINAMON duly represented by
its Municipal Mayor NOEL N. DEANO,
Petitioners-in-Intervention,
x--------------------------------------------x
THE CITY OF ISABELA,BASILAN PROVINCE,
represented by MAYOR CHERRYLYN P. SANTOSAKBAR,
Petitioners-in-Intervention.
x--------------------------------------------x
THE PROVINCE OF SULTAN KUDARAT, rep. by
HON. SUHARTO T. MANGUDADATU, in his
capacity as Provincial Governor and a resident of
the Province of Sultan Kudarat,
Petitioner-in-Intervention.
x-------------------------------------------x

THE GOVERNMENT OF THE REPUBLIC OF THE

PHILIPPINES PEACE NEGOTIATING PANEL [GRP],

RUY ELIAS LOPEZ, for and in his own behalf and

on behalf of Indigenous Peoples in Mindanao Not
Belonging to the MILF,

G.R. No. 183951

G.R. No. 183962

Petitioner-in-Intervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO
G. AWAT, JOSELITO C. ALISUAG and RICHALEX G.
JAGMIS, as citizens and residents of Palawan,
Petitioners-in-Intervention.
x--------------------------------------------x
MARINO RIDAO and KISIN BUXANI,
Petitioners-in-Intervention.
x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC
(MUSLAF),
Respondent-in-Intervention.
x--------------------------------------------x
MUSLIM MULTI-SECTORAL MOVEMENT FOR
PEACE & DEVELOPMENT (MMMPD),
Respondent-in-Intervention.
x--------------------------------------------x
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION

CARPIO MORALES, J.:

freedom of action vested by that same Constitution in the Chief Executive

precisely to enable her to pursue the peace process effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS

On August 5, 2008, the Government of the Republic of the Philippines

(GRP) and the MILF, through the Chairpersons of their respective peace
negotiating panels, were scheduled to sign a Memorandum of Agreement on
the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement
on Peace of 2001 in Kuala Lumpur, Malaysia.

The MILF is a rebel group which was established in March 1984 when,
under the leadership of the late Salamat Hashim, it splintered from the Moro
National Liberation Front (MNLF) then headed by Nur Misuari, on the
ground, among others, of what Salamat perceived to be the manipulation of
the MNLF away from an Islamic basis towards Marxist-Maoist orientations.[1]

Subject of these consolidated cases is the extent of the powers of the

President in pursuing the peace process. While the facts surrounding this

The signing of the MOA-AD between the GRP and the MILF was not to

controversy center on the armed conflict in Mindanao between the

materialize, however, for upon motion of petitioners, specifically those who

government and the Moro Islamic Liberation Front (MILF), the legal issue

filed their cases before the scheduled signing of the MOA-AD, this Court

involved has a bearing on all areas in the country where there has been a

issued a Temporary Restraining Order enjoining the GRP from signing the

long-standing armed conflict. Yet again, the Court is tasked to perform a

same.

delicate balancing act. It must uncompromisingly delineate the bounds within

which the President may lawfully exercise her discretion, but it must do so in

The MOA-AD was preceded by a long process of negotiation and the

strict adherence to the Constitution, lest its ruling unduly restricts the

concluding of several prior agreements between the two parties beginning in

1996, when the GRP-MILF peace negotiations began. On July 18, 1997, the

GRP and MILF Peace Panels signed the Agreement on General Cessation
of Hostilities. The following year, they signed the General Framework of

The parties met in Kuala Lumpur on March 24, 2001, with the talks being

Agreement of Intent on August 27, 1998.

facilitated by the Malaysian government, the parties signing on the same

date the Agreement on the General Framework for the Resumption of Peace

The Solicitor General, who represents respondents, summarizes the MOA-

Talks Between the GRP and the MILF. The MILF thereafter suspended all its

AD by stating that the same contained, among others, the commitment of

military actions.[5]

the parties to pursue peace negotiations, protect and respect human rights,
negotiate with sincerity in the resolution and pacific settlement of the conflict,

Formal peace talks between the parties were held in Tripoli, Libya from June

and refrain from the use of threat or force to attain undue advantage while

20-22, 2001, the outcome of which was the GRP-MILF Tripoli Agreement on

the peace negotiations on the substantive agenda are on-going.

[2]

Peace (Tripoli Agreement 2001) containing the basic principles and agenda
on

the

following

aspects

of

the

Early on, however, it was evident that there was not going to be any smooth

negotiation: Security Aspect, Rehabilitation Aspect,

sailing in the GRP-MILF peace process. Towards the end of 1999 up to early

DomainAspect. With regard to the Ancestral Domain Aspect, the parties in

2000,

Tripoli Agreement 2001 simply agreed that the same be discussed further by

the

MILF

attacked

number

of

municipalities

in Central

Mindanao and, in March 2000, it took control of the town hall of Kauswagan,

and Ancestral

the Parties in their next meeting.

[3]

Lanao del Norte. In response, then President Joseph Estrada declared and
carried out an all-out-war against the MILF.

A second round of peace talks was held in Cyberjaya, Malaysia on August 57, 2001 which ended with the signing of the Implementing Guidelines on the

When President Gloria Macapagal-Arroyo assumed office, the military

Security Aspect of the Tripoli Agreement 2001 leading to a ceasefire status

offensive against the MILF was suspended and the government sought a

between the parties. This was followed by the Implementing Guidelines on

resumption of the peace talks. The MILF, according to a leading MILF

the Humanitarian Rehabilitation and Development Aspects of the Tripoli

member, initially responded with deep reservation, but when President

Agreement

Arroyo asked the Government of Malaysia through Prime Minister Mahathir

2002 at Putrajaya, Malaysia. Nonetheless, there were many incidence of

Mohammad to help convince the MILF to return to the negotiating table, the

violence between government forces and the MILF from 2002 to 2003.

MILF convened its Central Committee to seriously discuss the matter and,
eventually, decided to meet with the GRP.[4]

2001,

which

was

signed

on May

7,

Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13,

the MOA-AD including its attachments, and to prohibit the slated signing of

2003 and he was replaced by Al Haj Murad, who was then the chief peace

the MOA-AD, pending the disclosure of the contents of the MOA-AD and the

negotiator of the MILF.Murads position as chief peace negotiator was taken

holding of a public consultation thereon. Supplementarily, petitioners pray

over by Mohagher Iqbal.

[6]

that the MOA-AD be declared unconstitutional.[10]

In 2005, several exploratory talks were held between the parties in Kuala

This initial petition was followed by another one, docketed as G.R. No.

Lumpur, eventually leading to the crafting of the draft MOA-AD in its final

183752, also

form, which, as mentioned, was set to be signed last August 5, 2008.

of Zamboanga,

for
[12]

Mandamus

and

Prohibition[11] filed

by

the

City

Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and

Rep. Erico Basilio Fabian who likewise pray for similar injunctive
II. STATEMENT OF THE PROCEEDINGS

reliefs. Petitioners herein moreover pray that the City of Zamboanga be

excluded from the Bangsamoro Homeland and/or Bangsamoro Juridical

Before the Court is what is perhaps the most contentious consensus ever

Entity and, in the alternative, that the MOA-AD be declared null and void.

embodied in an instrument the MOA-AD which is assailed principally by the

present petitions bearing docket numbers 183591, 183752, 183893, 183951
and 183962.

By Resolution of August 4, 2008, the Court issued a Temporary

Restraining Order commanding and directing public respondents and their
agents to cease and desist from formally signing the MOA-AD. [13] The Court

Commonly impleaded as respondents are the GRP Peace Panel on

Ancestral Domain[7] and the Presidential Adviser on the Peace Process

also required the Solicitor General to submit to the Court and petitioners the
official copy of the final draft of the MOA-AD,[14] to which she complied.[15]

(PAPP) Hermogenes Esperon, Jr.

Meanwhile, the City of Iligan[16] filed a petition for Injunction and/or
[8]

On July 23, 2008, the Province of North Cotabato and ViceGovernor Emmanuel Piol filed a petition, docketed as G.R. No. 183591, for
Mandamus and Prohibition with Prayer for the Issuance of Writ of
Preliminary Injunction and Temporary Restraining Order.[9] Invoking the right
to information on matters of public concern, petitioners seek to compel
respondents to disclose and furnish them the complete and official copies of

Declaratory Relief, docketed as G.R. No. 183893, praying that respondents

be enjoined from signing the MOA-AD or, if the same had already been
signed, from implementing the same, and that the MOA-AD be declared
unconstitutional. Petitioners herein additionally implead Executive Secretary
Eduardo Ermita as respondent.

The Province of Zamboanga del Norte,[17] Governor Rolando Yebes,

Jagmis, all of Palawan City. The Muslim Legal Assistance Foundation, Inc.

Vice-Governor Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar

(Muslaf) and the Muslim Multi-Sectoral Movement for Peace and

Jalosjos,

and

the

members[18] of

the Sangguniang

Panlalawigan of

Development (MMMPD) filed their respective Comments-in-Intervention.

Zamboanga del Norte filed on August 15, 2008 a petition for Certiorari,
Mandamus

and

Prohibition,[19] docketed

as G.R.

No.

183951. They

By subsequent Resolutions, the Court ordered the consolidation of

pray, inter alia, that the MOA-AD be declared null and void and without

the petitions. Respondents filed Comments on the petitions, while some of

operative effect, and that respondents be enjoined from executing the MOA-

petitioners submitted their respective Replies.

AD.
Respondents, by Manifestation and Motion of August 19, 2008,
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino

stated that the Executive Department shall thoroughly review the MOA-AD

Pimentel III filed a petition for Prohibition, [20] docketed as G.R. No.

and pursue further negotiations to address the issues hurled against it, and

183962, praying for a judgment prohibiting and permanently enjoining

thus moved to dismiss the cases. In the succeeding exchange of pleadings,

respondents from formally signing and executing the MOA-AD and or any

respondents motion was met with vigorous opposition from petitioners.

other agreement derived therefrom or similar thereto, and nullifying the

MOA-AD for being unconstitutional and illegal. Petitioners herein additionally
implead as respondent the MILF Peace Negotiating Panel represented by its

The cases were heard on oral argument on August 15, 22 and 29,
2008 that tackled the following principal issues:

Chairman Mohagher Iqbal.

Various parties moved to intervene and were granted leave of court
to file their petitions-/comments-in-intervention. Petitioners-in-Intervention
include Senator Manuel A. Roxas, former Senate President Franklin Drilon
and Atty. Adel Tamano, the City of Isabela[21] and Mayor Cherrylyn SantosAkbar, the Province of Sultan Kudarat [22] and Gov. Suharto Mangudadatu,
the Municipality of Linamon in Lanao del Norte,

[23]

Ruy Elias Lopez of Davao

City and of the Bagobo tribe, Sangguniang Panlungsod member Marino

Ridao and businessman Kisin Buxani, both of Cotabato City; and lawyers
Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag, Richalex

1. Whether the petitions have become moot and

academic
(i) insofar as the mandamus aspect is concerned, in
view of the disclosure of official copies of the
final draft of the Memorandum of Agreement
(MOA); and
(ii) insofar as the prohibition aspect involving the
Local Government Units is concerned, if it is
considered that consultation has become fait
accompli with the finalization of the draft;
2. Whether the constitutionality and the legality of the
MOA is ripe for adjudication;

3. Whether respondent Government of the Republic of

the Philippines Peace Panel committed grave abuse
of discretion amounting to lack or excess of
jurisdiction when it negotiated and initiated the MOA
vis--vis ISSUES Nos. 4 and 5;
4. Whether there is a violation of the peoples right to
information on matters of public concern (1987
Constitution, Article III, Sec. 7) under a state policy of
full disclosure of all its transactions involving public
interest (1987 Constitution, Article II, Sec. 28)
including public consultation under Republic Act No.
7160 (LOCAL GOVERNMENT CODE OF 1991)[;]
If it is in the affirmative, whether prohibition under
Rule 65 of the 1997 Rules of Civil Procedure is an
appropriate remedy;

Norte in/from the areas covered by the projected

Bangsamoro Homeland is a justiciable question; and
7. Whether desistance from signing the MOA derogates
any prior valid commitments of the Government of
the Republic of the Philippines.[24]

The Court, thereafter, ordered the parties to submit their respective

Memoranda. Most of the parties submitted their memoranda on time.
III. OVERVIEW OF THE MOA-AD
As a necessary backdrop to the consideration of the objections raised in the
subject five petitions and six petitions-in-intervention against the MOA-AD,

5. Whether by signing the MOA, the Government of the

Republic of the Philippines would be BINDING itself
a) to create and recognize the Bangsamoro Juridical
Entity (BJE) as a separate state, or a juridical,
territorial or political subdivision not recognized
by law;
b) to revise or amend the Constitution and existing
laws to conform to the MOA;
c) to concede to or recognize the claim of the Moro
Islamic Liberation Front for ancestral domain in
violation of Republic Act No. 8371 (THE
INDIGENOUS PEOPLES
RIGHTS
ACT
OF 1997), particularly Section 3(g) & Chapter VII
(DELINEATION,
RECOGNITION
OF
ANCESTRAL DOMAINS)[;]
If in the affirmative, whether the Executive Branch
has the authority to so bind the Government of the
Republic of the Philippines;
6. Whether the inclusion/exclusion of the Province of
North Cotabato, Cities of Zamboanga, Iligan and
Isabela, and the Municipality of Linamon, Lanao del

as well as the two comments-in-intervention in favor of the MOA-AD, the

Court takes an overview of the MOA.

The MOA-AD identifies the Parties to it as the GRP and the MILF.

Under the heading Terms of Reference (TOR), the MOA-AD

includes not only four earlier agreements between the GRP and MILF, but
also two agreements between the GRP and the MNLF: the 1976 Tripoli
Agreement, and the Final Peace Agreement on the Implementation of the
1976 Tripoli Agreement, signed on September 2, 1996 during the
administration of President Fidel Ramos.

The MOA-AD also identifies as TOR two local statutes the organic act for the
Autonomous Region in Muslim Mindanao (ARMM)[25] and the Indigenous
Peoples Rights Act (IPRA),[26] and several international law instruments the

ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in

aman (land of order), on the other hand, referred to countries which, though

Independent Countries in relation to the UN Declaration on the Rights of the

not bound by treaty with Muslim States, maintained freedom of religion for

Indigenous Peoples, and the UN Charter, among others.

Muslims.[28]

The MOA-AD includes as a final TOR the generic category of compact rights

It thus appears that the compact rights entrenchment emanating from the

entrenchment

regime

emanating

from

the

regime

of dar-ul-muahada (or

of dar-ul-muahada and dar-ul-sulh simply refers

to

all

other

territory under compact) and dar-ul-sulh (or territory under peace agreement)

agreements between the MILF and the Philippine government the

that partakes the nature of a treaty device.

Philippines being the land of compact and peace agreement that partake of
the nature of a treaty device, treaty being broadly defined as any solemn

During the height of the Muslim Empire, early Muslim jurists tended to see

agreement in writing that sets out understandings, obligations, and benefits

the world through a simple dichotomy: there was the dar-ul-Islam (the Abode

for both parties which provides for a framework that elaborates the principles

of Islam) and dar-ul-harb (the Abode of War). The first referred to those

declared in the [MOA-AD].[29]

lands where Islamic laws held sway, while the second denoted those lands
where Muslims were persecuted or where Muslim laws were outlawed or

The MOA-AD

states

that

the

Parties

HAVE

AGREED

ineffective.[27] This way of viewing the world, however, became more complex

ACKNOWLEDGED AS FOLLOWS, and starts with its main body.

AND

through the centuries as the Islamic world became part of the international
community of nations.

As Muslim States entered into treaties with their neighbors, even with distant
States and inter-governmental organizations, the classical division of the
world into dar-ul-Islam anddar-ul-harb eventually lost its meaning. New
terms were drawn up to describe novel ways of perceiving non-Muslim
territories. For

instance,

areas

like dar-ul-muahada (land

ofcompact)

The main body of

the
MOA-AD
is
divided into four
strands,
namely,
Concepts
and
Principles, Territory,
Resources,
and
Governance.

A. CONCEPTS AND PRINCIPLES

and dar-ul-sulh (land of treaty) referred to countries which, though under a

This strand begins with the statement that it is the birthright of all Moros and

secular regime, maintained peaceful and cooperative relations with Muslim

all Indigenous peoples of Mindanao to identify themselves and be accepted

States, having been bound to each other by treaty or agreement. Dar-ul-

as Bangsamoros. It defines Bangsamoro people as the natives or original

The MOA-AD thus grounds the right to self-governance of the Bangsamoro

inhabitants of Mindanao and its adjacent islands including Palawan and the

people on the past suzerain authority of the sultanates. As gathered, the

Sulu archipelago at the time of conquest or colonization, and their

territory defined as the Bangsamoro homeland was ruled by several

descendants whether mixed or of full blood, including their spouses.

[30]

sultanates and, specifically in the case of the Maranao, by the Pat a

Pangampong ku Ranaw, a confederation of independent principalities

Thus, the concept of Bangsamoro, as defined in this strand of the MOA-AD,

(pangampong) each ruled by datus and sultans, none of whom was supreme

includes not only Moros as traditionally understood even by Muslims,[31] but

over the others.[35]

all indigenous peoplesof Mindanao and its adjacent islands. The MOA-AD
adds that the freedom of choice of indigenous peoples shall be

The MOA-AD goes on to describe the Bangsamoro people as the First

respected. What this freedom of choice consists in has not been specifically

Nation with defined territory and with a system of government having

defined.

entered into treaties of amity and commerce with foreign nations.

The term First Nation is of Canadian origin referring to the indigenous

The MOA-AD proceeds to refer to the Bangsamoro homeland, the

peoples of that territory, particularly those known as Indians. In Canada,

ownership of which is vested exclusively in the Bangsamoro people by virtue

each of these indigenous peoples is equally entitled to be called First Nation,

of

their prior rights

of

occupation.[32] Both

parties

to

the

MOA-AD

hence, all of them are usually described collectively by the plural First

acknowledge that ancestral domain does not form part of the public domain.

Nations.[36] To that extent, the MOA-AD, by identifying the Bangsamoro

[33]

people as the First Nation suggesting its exclusive entitlement to that

designation departs from the Canadian usage of the term.

The Bangsamoro people are acknowledged as having the right to selfgovernance, which right is said to be rooted on ancestral territoriality

The MOA-AD then mentions for the first time the Bangsamoro Juridical

exercised originally under the suzerain authority of their sultanates and

Entity (BJE) to which it grants the authority and jurisdiction over the

the Pat a Pangampong ku Ranaw. The sultanates were described as states

Ancestral Domain and AncestralLands of the Bangsamoro.[37]

or karajaan/kadatuan resembling a body politic endowed with all the

elements of a nation-state in the modern sense.[34]

B. TERRITORY

The territory of the Bangsamoro homeland is described as the land mass as

west of mainland Mindanao; and that within these territorial waters, the BJE

well as the maritime, terrestrial, fluvial and alluvial domains, including the

and the Central Government (used interchangeably with RP) shall

aerial domain and the atmospheric space above it, embracing the Mindanao-

exercisejoint jurisdiction, authority and management over all natural

Sulu-Palawan geographic region.

[38]

resources.[43] Notably, the jurisdiction over the internal waters is not similarly
described as joint.

More specifically, the core of the BJE is defined as the present geographic
area of the ARMM thus constituting the following areas: Lanao del Sur,

The

Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City. Significantly, this

the territorial waters between the Central Government and the BJE, in favor

core also includes certain municipalities of Lanao del Norte that voted for

of the latter, through production sharing and economic cooperation

inclusion in the ARMM in the 2001 plebiscite.

[39]

MOA-AD

further

provides

for

the sharing of minerals

on

agreement.[44] The activities which the Parties are allowed to conduct on

the territorial waters are enumerated, among which are the exploration and

Outside of this core, the BJE is to cover other provinces, cities,

utilization of natural resources, regulation of shipping and fishing activities,

municipalities and barangays, which are grouped into two categories,

and the enforcement of police and safety measures. [45] There is no similar

Category A and Category B. Each of these areas is to be subjected to a

provision on the sharing of minerals and allowed activities with respect to

plebiscite to be held on different dates, years apart from each other. Thus,

the internal waters of the BJE.

Category A areas are to be subjected to a plebiscite not later than twelve

(12) months following the signing of the MOA-AD. [40] Category B areas, also

C. RESOURCES

called Special Intervention Areas, on the other hand, are to be subjected to a

The MOA-AD states that the BJE is free to enter into any economic

plebiscite twenty-five (25) years from the signing of a separate agreement

cooperation and trade relations with foreign countries and shall have the

the Comprehensive Compact.

[41]

option to establish trade missions in those countries. Such relationships and

understandings, however, are not to include aggression against the

The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over
all natural resources within its internal waters, defined as extending fifteen
(15) kilometers from the coastline of the BJE area; [42] that the BJE shall also
have territorial waters, which shall stretch beyond the BJE internal waters up
to the baselines of the Republic of the Philippines (RP) south east and south

GRP. The BJE may also enter into environmental cooperation agreements.
[46]

The external defense of the BJE is to remain the duty and obligation of the

acknowledged. Whenever restoration is no longer possible, reparation is to

Central Government. The Central Government is also bound to take

be in such form as mutually determined by the Parties.[50]

necessary steps to ensure the BJEs participation in international meetings

and events like those of the ASEAN and the specialized agencies of the
UN. The BJE is to be entitled to participate in Philippine official missions and
delegations for the negotiation of border agreements or protocols for
environmental protection and equitable sharing of incomes and revenues
involving the bodies of water adjacent to or between the islands forming part
of the ancestral domain.[47]

The BJE may modify or cancel the forest concessions, timber licenses,
contracts or agreements, mining concessions, Mineral Production and
Sharing Agreements (MPSA), Industrial Forest Management Agreements
(IFMA), and other land tenure instruments granted by the Philippine
Government, including those issued by the present ARMM.[51]
D. GOVERNANCE
The MOA-AD binds the Parties to invite a multinational third-party to observe

With regard to the right of exploring for, producing, and obtaining all potential

and monitor the implementation of the Comprehensive Compact. This

sources of energy, petroleum, fossil fuel, mineral oil and natural gas, the

compact is to embody the details for the effective enforcement and the

jurisdiction and control thereon is to be vested in the BJE as the party having

mechanisms and modalities for the actual implementation of the MOA-

control within its territorial jurisdiction. This right carries the proviso that, in

AD. The MOA-AD explicitly provides that the participation of the third party

times of national emergency, when public interest so requires, the Central

shall not in any way affect the status of the relationship between the Central

Government may, for a fixed period and under reasonable terms as may be

Government and the BJE.[52]

agreed upon by both Parties, assume or direct the operation of such

The associative relationship
between the Central Government
and the BJE

resources.[48]

The sharing between the Central Government and the BJE of total
production pertaining to natural resources is to be 75:25 in favor of the BJE.
[49]

The MOA-AD describes the relationship of the Central Government

and the BJE as associative, characterized by shared authority and

The MOA-AD provides that legitimate grievances of the Bangsamoro people

responsibility. And it states that the structure of governance is to be based

arising from any unjust dispossession of their territorial and proprietary

on executive, legislative, judicial, and administrative institutions with defined

rights,

powers and functions in the Comprehensive Compact.

customary

land

tenures,

or

their

marginalization

shall

be

Affairs of RP and Dato Seri Utama Dr. Rais Bin Yatim, Minister of Foreign
The MOA-AD provides that its provisions requiring amendments to the

Affairs, Malaysia, all of whom were scheduled to sign the Agreement last

existing legal framework shall take effect upon signing of the Comprehensive

August 5, 2008.

Compact and upon effecting the aforesaid amendments, with due regard to
the non-derogation of prior agreements and within the stipulated

Annexed to the MOA-AD are two documents containing the

timeframe to be contained in the Comprehensive Compact. As will be

respective lists cum maps of the provinces, municipalities, and barangays

discussed later, much of the present controversy hangs on the legality

under Categories A and B earlier mentioned in the discussion on the strand

of this provision.

on TERRITORY.

The BJE is granted the power to build, develop and maintain its

IV. PROCEDURAL ISSUES

own institutions inclusive of civil service, electoral, financial and banking,

education, legislation, legal, economic, police and internal security force,

A. RIPENESS

judicial system and correctional institutions, the details of which shall be

The power of judicial review is limited to actual cases or

discussed in the negotiation of the comprehensive compact.

controversies.[54] Courts decline to issue advisory opinions or to resolve

As stated early on, the MOA-AD was set to be signed on August 5, 2008 by
Rodolfo Garcia and Mohagher Iqbal, Chairpersons of the Peace Negotiating
Panels of the GRP and the MILF, respectively. Notably, the penultimate
paragraph of the MOA-AD identifies the signatories as the representatives of
the Parties, meaning the GRP and MILF themselves, and not merely of the
negotiating panels.

[53]

hypothetical or feigned problems, or mere academic questions. [55] The

limitation

of

the

power

of

judicial

review

to

actual

cases

and

controversies defines the role assigned to the judiciary in a tripartite

allocation of power, to assure that the courts will not intrude into areas
committed to the other branches of government.[56]

In addition, the signature page of the MOA-AD states

that it is WITNESSED BY Datuk Othman Bin Abd Razak, Special Adviser to

the Prime Minister of Malaysia, ENDORSED BY Ambassador Sayed
Elmasry, Adviser to Organization of the Islamic Conference (OIC) Secretary
General and Special Envoy for Peace Process in Southern Philippines, and
SIGNED IN THE PRESENCE OF Dr. Albert G. Romulo, Secretary of Foreign

An actual case or controversy involves a conflict of legal rights, an

assertion of opposite legal claims, susceptible of judicial resolution as
distinguished from a hypothetical or abstract difference or dispute. There
must be a contrariety of legal rights that can be interpreted and enforced on
the basis of existing law and jurisprudence.[57] The Court can decide the

problems or interests with no concrete bases. Considering

the preliminary character of the MOA-AD, there are no
concrete acts that could possibly violate petitioners and
intervenors rights since the acts complained of are mere
contemplated steps toward the formulation of a final peace
agreement. Plainly, petitioners and intervenors perceived
injury, if at all, is merely imaginary and illusory apart from
being
unfounded
and
based
on
mere
conjectures. (Underscoring supplied)

constitutionality of an act or treaty only when a proper case between

opposing parties is submitted for judicial determination.[58]

Related to the requirement of an actual case or controversy is the

requirement of ripeness. A question is ripe for adjudication when the act
being challenged has had a direct adverse effect on the individual
challenging it.[59] For a case to be considered ripe for adjudication, it is a

The Solicitor General cites[63] the following provisions of the MOA-

prerequisite that something had then been accomplished or performed by

either branch before a court may come into the picture, [60] and the petitioner

AD:

must allege the existence of an immediate or threatened injury to itself as a

TERRITORY

result of the challenged action.[61] He must show that he has sustained or is

xxxx

immediately in danger of sustaining some direct injury as a result of the act

complained of.

[62]

2. Toward this end, the Parties enter into the

following stipulations:
xxxx
d.

The Solicitor General argues that there is no justiciable controversy

that is ripe for judicial review in the present petitions, reasoning that
The unsigned MOA-AD is simply a list of
consensus points subject to further negotiations and
legislative enactments as well as constitutional
processes aimed
at
attaining
a
final
peaceful
agreement.Simply put, the MOA-AD remains to be
a proposal that does not automatically create legally
demandable rights and obligations until the list of
operative acts required have been duly complied with. x x
x
xxxx
In the cases at bar, it is respectfully submitted
that this Honorable Court has no authority to pass upon
issues based on hypothetical or feigned constitutional

xxxx

Without derogating from the

requirements of prior agreements,
the Government stipulates to
conduct and deliver, using all
possible legal measures, within
twelve (12) months following the
signing of the MOA-AD, a plebiscite
covering the areas as enumerated
in the list and depicted in the map
as Category A attached herein (the
Annex). The Annex constitutes an
integral part of this framework
agreement. Toward this end, the
Parties shall endeavor to complete
the negotiations and resolve all
outstanding
issues
on
the
Comprehensive Compact within
fifteen (15) months from the signing
of the MOA-AD.

Constitution and the laws x x x settling the dispute

becomes the duty and the responsibility of the courts.[66]

GOVERNANCE
xxxx
7. The Parties agree that mechanisms and
modalities for the actual implementation of
this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take
such steps to enable it to occur effectively.
Any

provisions of the MOA-AD requiring

amendments to the existing legal framework
shall come into force upon the signing of a
Comprehensive Compact and upon effecting
the necessary changes to the legal
framework with due regard to non-derogation
of prior agreements and within the stipulated
timeframe to be contained in the
Comprehensive Compact.[64] (Underscoring
supplied)

In Santa Fe Independent School District v. Doe,[67] the United States

Supreme Court held that the challenge to the constitutionality of the schools
policy allowing student-led prayers and speeches before games was ripe for
adjudication, even if no public prayer had yet been led under the policy,
because the policy was being challenged as unconstitutional on its face.[68]

That the law or act in question is not yet effective does not negate
ripeness. For example, in New York v. United States, [69] decided in 1992, the
United States Supreme Court held that the action by the State of New York
challenging the provisions of the Low-Level Radioactive Waste Policy Act
was ripe for adjudication even if the questioned provision was not to take

The Solicitor Generals arguments fail to persuade.

effect until January 1, 1996, because the parties agreed that New York had
to take immediate action to avoid the provision's consequences.[70]

Concrete acts under the MOA-AD are not necessary to render the
The present petitions pray for Certiorari,[71] Prohibition, and

present controversy ripe. In Pimentel, Jr. v. Aguirre,[65] this Court held:

Mandamus. Certiorari and Prohibition are remedies granted by law when

x x x [B]y the mere enactment of the questioned
law or the approval of the challenged action, the dispute is
said to have ripened into a judicial controversy even
without any other overt act. Indeed, even a singular
violation of the Constitution and/or the law is enough to
awaken judicial duty.
xxxx
By the same token, when an act of the President,
who in our constitutional scheme is a coequal of
Congress, is seriously alleged to have infringed the

any tribunal, board or officer has acted, in the case of certiorari, or is

proceeding, in the case of prohibition, without or in excess of its jurisdiction
or with grave abuse of discretion amounting to lack or excess of jurisdiction.
[72]

Mandamus is a remedy granted by law when any tribunal, corporation,

board, officer or person unlawfully neglects the performance of an act which

the law specifically enjoins as a duty resulting from an office, trust, or station,
or unlawfully excludes another from the use or enjoyment of a right or office

to which such other is entitled. [73] Certiorari, Mandamus and Prohibition are

As the petitions allege acts or omissions on the part of

appropriate remedies to raise constitutional issues and to review and/or

respondent that exceed their authority, by violating their duties under E.O.

prohibit/nullify, when proper, acts of legislative and executive officials.[74]

No. 3 and the provisions of the Constitution and statutes, the petitions make
a prima facie case for Certiorari, Prohibition, and Mandamus, and an actual

The authority of the GRP Negotiating Panel is defined by Executive

Order No. 3 (E.O. No. 3), issued on February 28, 2001.

[75]

case or controversy ripe for adjudication exists. When an act of a branch of

The said executive

government is seriously alleged to have infringed the Constitution, it

order requires that [t]he government's policy framework for peace, including

becomes not only the right but in fact the duty of the judiciary to settle

the systematic approach and the administrative structure for carrying out the

the dispute.[77]

comprehensive peace process x x x be governed by this Executive Order.[76]

B. LOCUS STANDI
The present petitions allege that respondents GRP Panel and
PAPP Esperon drafted the terms of the MOA-AD without consulting the local
government units or communities affected, nor informing them of the
proceedings. As will be discussed in greater detail later, such omission, by
itself, constitutes a departure by respondents from their mandate under E.O.

For a party to have locus standi, one must allege such a personal stake in
the outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions.[78]

No. 3.
Because constitutional cases are often public actions in which the relief
Furthermore, the petitions allege that the provisions of the MOAAD violate the Constitution. The MOA-AD provides that any provisions of the

sought is likely to affect other persons, a preliminary question frequently

arises as to this interest in the constitutional question raised.[79]

MOA-AD requiring amendments to the existing legal framework shall come

into force upon the signing of a Comprehensive Compact and upon effecting
the necessary changes to the legal framework, implying an amendment of
the Constitution to accommodate the MOA-AD. This stipulation, in
effect, guaranteed to the MILF the amendment of the Constitution. Such act
constitutes another violation of its authority. Again, these points will be
discussed in more detail later.

When suing as a citizen, the person complaining must allege that he has
been or is about to be denied some right or privilege to which he is lawfully
entitled or that he is about to be subjected to some burdens or penalties by
reason of the statute or act complained of. [80] When the issue concerns a
public right, it is sufficient that the petitioner is a citizen and has an interest in
the execution of the laws.[81]

For a taxpayer, one is allowed to sue where there is an assertion that public

In any case, the Court has discretion to relax the procedural technicality

funds are illegally disbursed or deflected to an illegal purpose, or that there

on locus standi, given the liberal attitude it has exercised, highlighted in the

is a wastage of public funds through the enforcement of an invalid or

case of David v. Macapagal-Arroyo,[89] where technicalities of procedure

unconstitutional law.[82] The Court retains discretion whether or not to allow a

were brushed aside, the constitutional issues raised being of paramount

taxpayers suit.

[83]

public interest or of transcendental importance deserving the attention of the

Court in view of their seriousness, novelty and weight as precedents. [90] The

In the case of a legislator or member of Congress, an act of the Executive

Courts forbearing stance on locus standi on issues involving constitutional

that injures the institution of Congress causes a derivative but nonetheless

issues has for its purpose the protection of fundamental rights.

substantial injury that can be questioned by legislators. A member of the

House of Representatives has standing to maintain inviolate the

In not a few cases, the Court, in keeping with its duty under the Constitution

prerogatives, powers and privileges vested by the Constitution in his office.

to determine whether the other branches of government have kept

[84]

themselves within the limits of the Constitution and the laws and have not
abused the discretion given them, has brushed aside technical rules of

An organization may be granted standing to assert the rights of its members,

[85]

procedure.[91]

but the mere invocation by the Integrated Bar of the Philippines or any

member of the legal profession of the duty to preserve the rule of law does
not suffice to clothe it with standing.

[86]

In the petitions at bar, petitioners Province of North Cotabato (G.R. No.

183591) Province of Zamboanga del Norte (G.R. No. 183951), City of
Iligan (G.R. No. 183893) and City of Zamboanga (G.R. No. 183752) and

As regards a local government unit (LGU), it can seek relief in order to

petitioners-in-intervention Province

of

Sultan

Kudarat,

City

of

protect or vindicate an interest of its own, and of the other LGUs.[87]

Isabela and Municipality of Linamon have locus standi in view of the direct
and substantial injury that they, as LGUs, would suffer as their territories,

Intervenors, meanwhile, may be given legal standing upon showing of facts

that satisfy the requirements of the law authorizing intervention,

[88]

whether in whole or in part, are to be included in the intended domain of the

such as a

BJE. These petitioners allege that they did not vote for their inclusion in the

legal interest in the matter in litigation, or in the success of either of the

ARMM which would be expanded to form the BJE territory. Petitioners legal

parties.

standing is thus beyond doubt.

With respect to Intervenors Ruy Elias Lopez, as a former congressman of

Jejomar

the 3rd district of Davao City, a taxpayer and a member of the Bagobo

Binay and Aquilino Pimentel III would have no standing as citizens and

tribe; Carlo B. Gomez, et al.,as members of the IBP Palawan chapter,

taxpayers for their failure to specify that they would be denied some right or

citizens and taxpayers; Marino Ridao, as taxpayer, resident and member of

privilege or there would be wastage of public funds. The fact that they are a

the Sangguniang

former Senator, an incumbent mayor of Makati City, and a resident of

taxpayer, they failed to allege any proper legal interest in the present

Cagayan de Oro, respectively, is of no consequence. Considering their

petitions. Just the same, the Court exercises its discretion to relax the

invocation of the transcendental importance of the issues at hand, however,

procedural technicality onlocus standi given the paramount public interest in

the Court grants them standing.

the issues at hand.

Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as

Intervening respondents Muslim Multi-Sectoral Movement for Peace and

taxpayers, assert that government funds would be expended for the conduct

Development, an advocacy group for justice and the attainment of peace

of an illegal and unconstitutional plebiscite to delineate the BJE territory. On

and prosperity in Muslim Mindanao; and Muslim Legal Assistance

that score alone, they can be given legal standing. Their allegation that the

Foundation Inc., a non-government organization of Muslim lawyers, allege

issues involved in these petitions are of undeniable transcendental

that they stand to be benefited or prejudiced, as the case may be, in the

importance clothes them with added basis for their personality to intervene in

resolution of the petitions concerning the MOA-AD, and prays for the denial

these petitions.

of the petitions on the grounds therein stated. Such legal interest suffices to

In

G.R.

No.

183962,

petitioners Ernesto

Maceda,

Panlungsod of

Cotabato City; and Kisin

Buxani, as

clothe them with standing.

With regard to Senator Manuel Roxas, his standing is premised on his
being a member of the Senate and a citizen to enforce compliance by

B. MOOTNESS

respondents of the publics constitutional right to be informed of the MOAAD, as well as on a genuine legal interest in the matter in litigation, or in the

Respondents insist that the present petitions have been rendered moot with

success or failure of either of the parties. He thus possesses the requisite

the satisfaction of all the reliefs prayed for by petitioners and the subsequent

standing as an intervenor.

pronouncement of the Executive Secretary that [n]o matter what the

Supreme Court ultimately decides[,] the government will not sign the MOA.[92]

In lending credence to this policy decision, the Solicitor General points out
that the President had already disbanded the GRP Peace Panel.

Petitions not mooted

[93]

Contrary then to the asseverations of respondents, the non-signing of the

In David v. Macapagal-Arroyo,[94] this Court held that the moot and academic
principle not being a magical formula that automatically dissuades courts in
resolving a case, it will decide cases, otherwise moot and academic, if it
finds that (a) there is a grave violation of the Constitution;

[95]

(b) the situation

MOA-AD and the eventual dissolution of the GRP Peace Panel did not moot
the present petitions. It bears emphasis that the signing of the MOA-AD did
not push through due to the Courts issuance of a Temporary Restraining
Order.

is of exceptional character and paramount public interest is involved; [96] (c)

the constitutional issue raised requires formulation of controlling principles to
guide the bench, the bar, and the public; [97] and (d) the case is capable of
[98]

repetition yet evading review.

Contrary too to respondents position, the MOA-AD cannot be considered a

mere list of

consensus points, especially given its nomenclature,

the need to have it signed or initialed by all the parties concerned on

August 5, 2008, and the far-reaching Constitutional implications of these

Another exclusionary circumstance that may be considered is where there is

consensus points, foremost of which is the creation of the BJE.

a voluntary cessation of the activity complained of by the defendant or

doer. Thus, once a suit is filed and the doer voluntarily ceases the
challenged conduct, it does not automatically deprive the tribunal of power to
hear and determine the case and does not render the case moot especially
when the plaintiff seeks damages or prays for injunctive relief against the
possible recurrence of the violation.

[99]

In fact, as what will, in the main, be discussed, there is a commitment on

the part of respondents to amend and effect necessary changes to the
existing legal framework for certain provisions of the MOA-AD to take
effect. Consequently, the present petitions are not confined to the terms and
provisions of the MOA-AD, but to other on-goingand future negotiations
and agreements necessary for its realization. The petitions have not,

The present petitions fall squarely into these exceptions to thus thrust them
into the domain of judicial review. The grounds cited above in David are just
as applicable in the present cases as they were, not only in David, but also
in Province of Batangas v. Romulo[100] and Manalo v. Calderon[101] where the
Court similarly decided them on the merits, supervening events that would
ordinarily have rendered the same moot notwithstanding.

therefore, been rendered moot and academic simply by the public disclosure
of the MOA-AD,[102] the manifestation that it will not be signed as well as the
disbanding of the GRP Panel not withstanding.

Petitions are imbued

with
paramount
public interest

The MOA-AD is part

of
a
series
of
agreements

There is no gainsaying that the petitions are imbued with paramount public

In the present controversy, the MOA-AD is a significant part of a series of

interest, involving a significant part of the countrys territory and the wide-

agreements necessary to carry out the Tripoli Agreement 2001. The MOA-

ranging political modifications of affected LGUs. The assertion that the

AD which dwells on theAncestral Domain Aspect of said Tripoli Agreement is

MOA-AD is subject to further legal enactments including possible

the third such component to be undertaken following the implementation of

Constitutional amendments more than ever provides impetus for the

the Security Aspect in August 2001 and theHumanitarian, Rehabilitation and

Court to formulate controlling principles to guide the bench, the bar,

Development Aspect in May 2002.

the public and, in this case, the government and its negotiating entity.
Accordingly, even if the Executive Secretary, in his Memorandum of August
Respondents cite Suplico v. NEDA, et al.[103] where the Court did not

28, 2008 to the Solicitor General, has stated that no matter what the

pontificat[e] on issues which no longer legitimately constitute an actual case

Supreme Court ultimately decides[,] the government will not sign the MOA[-

or controversy [as this] will do more harm than good to the nation as a

AD], mootness will not set in in light of the terms of the Tripoli Agreement

whole.

2001.

The present petitions must be differentiated from Suplico. Primarily,

Need to formulate
principlesguidelines

in Suplico, what was assailed and eventually cancelled was a stand-alone

government procurement contract for a national broadband network
involving a one-time contractual relation between two partiesthe government

Surely, the present MOA-AD can be renegotiated or another one

and a private foreign corporation. As the issues therein involved specific

will be drawn up to carry out the Ancestral Domain Aspect of

government procurement policies and standard principles on contracts, the

the Tripoli Agreement 2001, in another or in any form, which could contain

majority opinion in Suplico found nothing exceptional therein, the factual

similar or significantly drastic provisions. While the Court notes the word of

circumstances being peculiar only to the transactions and parties involved in

the Executive Secretary that the government is committed to securing an

the controversy.

agreement that is both constitutional and equitable because that is the only

way that long-lasting peace can be assured, it is minded to render a decision

future as respondents actions are capable of repetition, in another or any

on the merits in the present petitions to formulate controlling principles to

form.

guide the bench, the bar, the public and, most especially, the
government in negotiating with the MILF regarding Ancestral Domain .

It is with respect to the prayers for Mandamus that the petitions have
become moot, respondents having, by Compliance of August 7, 2008,

Respondents invite the Courts attention to the separate opinion of then Chief

provided this Court and petitioners with official copies of the final draft of the

Justice Artemio Panganiban in Sanlakas v. Reyes[104] in which he stated

MOA-AD and its annexes. Too, intervenors have been furnished, or have

that the doctrine of capable of repetition yet evading review can override

procured for themselves, copies of the MOA-AD.

V. SUBSTANTIVE ISSUES

mootness, provided the party raising it in a proper case has been and/or
continue to be prejudiced or damaged as a direct result of their
issuance. They contend that the Court must have jurisdiction over the
subject matter for the doctrine to be invoked.

As culled from the Petitions and Petitions-in-Intervention, there are basically

two SUBSTANTIVE issues to be resolved, one relating to the manner in
which the MOA-AD was negotiated and finalized, the other relating to its

The present petitions all contain prayers for Prohibition over which

provisions, viz:

this Court exercises original jurisdiction. While G.R. No. 183893 (City
of Iligan v. GRP) is a petition for Injunction and Declaratory Relief, the Court
will treat it as one for Prohibition as it has far reaching implications and
raises questions that need to be resolved.[105] At all events, the Court has

1. Did respondents violate constitutional and statutory provisions on public

consultation and the right to information when they negotiated and later
initialed the MOA-AD?

jurisdiction over most if not the rest of the petitions.

2. Do the contents of the MOA-AD violate the Constitution and the laws?
ON THE FIRST SUBSTANTIVE ISSUE
Indeed, the present petitions afford a proper venue for the Court to again
apply the doctrine immediately referred to as what it had done in a number
Petitioners invoke their constitutional right to information on

of landmark cases.[106] There is a reasonable expectation that petitioners,

particularly the Provinces of North Cotabato, Zamboanga del Norte and
Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, and the
Municipality of Linamon, will again be subjected to the same problem in the

matters of public concern, as provided in Section 7, Article III on the Bill of

Rights:

Sec. 7. The right of the people to information on

matters of public concern shall be recognized. Access to
official records, and to documents, and papers pertaining
to official acts, transactions, or decisions, as well as to
government research data used as basis for policy
development, shall be afforded the citizen, subject to such
limitations as may be provided by law.[107]

since, if either process is interrupted, the flow inevitably

ceases. x x x[111]

In the same way that free discussion enables members of society to cope
with the exigencies of their time, access to information of general interest
aids the people in democratic decision-making by giving them a better

As early as 1948, in Subido v. Ozaeta,

[108]

the Court has recognized the

perspective of the vital issues confronting the nation [112] so that they may be

statutory right to examine and inspect public records, a right which was

able to criticize and participate in the affairs of the government in a

eventually accorded constitutional status.

responsible, reasonable and effective manner. It is by ensuring an unfettered

and uninhibited exchange of ideas among a well-informed public that a

The right of access to public documents, as enshrined in both the 1973

government remains responsive to the changes desired by the people.[113]

Constitution and the 1987 Constitution, has been recognized as a selfexecutory constitutional right.[109]

The MOA-AD is a
matter
of
public
concern

In the 1976 case of Baldoza v. Hon. Judge Dimaano,[110] the Court ruled that
access to public records is predicated on the right of the people to acquire
information on matters of public concern since, undoubtedly, in a democracy,
the pubic has a legitimate interest in matters of social and political
significance.
x x x The incorporation of this right in the Constitution is a
recognition of the fundamental role of free exchange of
information in a democracy. There can be no realistic
perception by the public of the nations problems, nor a
meaningful democratic decision-making if they are denied
access to information of general interest. Information is
needed to enable the members of society to cope with the
exigencies of the times. As has been aptly observed:
Maintaining the flow of such information depends on
protection for both its acquisition and its dissemination

That the subject of the information sought in the present cases is a

matter of public concern[114] faces no serious challenge. In fact, respondents
admit that the MOA-AD is indeed of public concern.[115] In previous cases, the
Court found that the regularity of real estate transactions entered in the
Register of Deeds,[116] the need for adequate notice to the public of the
various laws,[117] the civil service eligibility of a public employee, [118] the proper
management of GSIS funds allegedly used to grant loans to public officials,
[119]

of

the recovery of the Marcoses alleged ill-gotten wealth,[120] and the identity
party-list

nominees,[121] among

others,

are

matters

of

public

concern. Undoubtedly, the MOA-AD subject of the present cases is of

public concern, involving as it does the sovereignty and territorial

integrity of the State, which directly affects the lives of the public at large.

Sec. 28. Subject to reasonable conditions prescribed by

law, the State adopts and implements a policy of full public
disclosure of all its transactions involving public interest.
[124]

Matters of public concern covered by the right to information include steps

and negotiations leading to the consummation of the contract. In not
distinguishing as to the executory nature or commercial character of
agreements, the Court has categorically ruled:

The policy of full public disclosure enunciated in above-quoted Section

28 complements the right of access to information on matters of public
concern found in the Bill of Rights.The right to information guarantees

x x x [T]he right to information contemplates inclusion of

negotiations leading to the consummation of the
transaction. Certainly, a consummated contract is not a
requirement for the exercise of the right to
information. Otherwise, the people can never exercise the
right if no contract is consummated, and if one is
consummated, it may be too late for the public to expose its
defects.
Requiring a consummated contract will keep the public in
the dark until the contract, which may be grossly
disadvantageous to the government or even illegal,
becomes fait accompli. This negates the State policy of full
transparency on matters of public concern, a situation
which the framers of the Constitution could not have
intended. Such a requirement will prevent the citizenry from
participating
in
the
public
discussion
of
any proposed contract, effectively truncating a basic right
enshrined in the Bill of Rights. We can allow neither an
emasculation of a constitutional right, nor a retreat by the
State of its avowed policy of full disclosure of all its
transactions involving public interest.[122] (Emphasis and
italics in the original)

the right of the people to demand information, while Section 28 recognizes

the duty of officialdom to give information even if nobody demands.[125]

The policy of public disclosure establishes a concrete ethical principle for the
conduct of public affairs in a genuinely open democracy, with the peoples
right to know as the centerpiece. It is a mandate of the State to be
accountable by following such policy.[126] These provisions are vital to the
exercise of the freedom of expression and essential to hold public officials at
all times accountable to the people.[127]

Whether Section 28 is self-executory, the records of the deliberations of the

Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory,
this policy will not be enunciated or will not be in force and
effect until after Congress shall have provided it.

Intended as a splendid symmetry[123] to the right to information under the Bill

of Rights is the policy of public disclosure under Section 28, Article II of

MR. OPLE. I expect it to influence the climate of public

ethics immediately but, of course, the implementing law
will have to be enacted by Congress, Mr. Presiding Officer.

the Constitution reading:

[128]

already enforceable while the correlative duty of the State to disclose its
The following discourse, after Commissioner Hilario Davide, Jr.,
sought clarification on the issue, is enlightening.

transactions involving public interest is not enforceable until there is an

enabling law. Respondents cannot thus point to the absence of an
implementing legislation as an excuse in not effecting such policy.

MR. DAVIDE. I would like to get some

clarifications on this. Mr. Presiding Officer, did I get the
Gentleman correctly as having said that this is not a selfexecuting provision? It would require a legislation by
Congress to implement?
MR. OPLE. Yes. Originally, it was going to be selfexecuting, but I accepted an amendment from
Commissioner Regalado, so that the safeguards on
national interest are modified by the clause as may be
provided by law
MR. DAVIDE. But as worded, does it not mean
that this will immediately take effect and Congress may
provide for reasonable safeguards on the sole ground
national interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said
earlier that it should immediately influence the climate
of the conduct of public affairs but, of course, Congress
here may no longer pass a law revoking it, or if this is
approved, revoking this principle, which is inconsistent
with this policy.[129] (Emphasis supplied)

Indubitably, the effectivity of the policy of public disclosure need not

await the passing of a statute. As Congress cannot revoke this principle, it
is merely directed to provide for reasonable safeguards. The complete and
effective exercise of the right to information necessitates that its
complementary provision on public disclosure derive the same selfexecutory nature. Since both provisions go hand-in-hand, it is absurd to say
that the broader[130] right to information on matters of public concern is

An essential element of these freedoms is to keep open a continuing

dialogue or process of communication between the government and the
people. It is in the interest of the State that the channels for free political
discussion be maintained to the end that the government may perceive and
be responsive to the peoples will.[131] Envisioned to be corollary to the twin
rights to information and disclosure is the design for feedback mechanisms.
MS. ROSARIO BRAID. Yes. And lastly, Mr.
Presiding Officer, will the people be able to
participate? Will the government provide feedback
mechanisms so that the people can participate and can
react where the existing media facilities are not able to
provide
full
feedback
mechanisms
to
the
government? I suppose this will be part of the
government implementing operational mechanisms.
MR. OPLE. Yes. I think through their elected
representatives and that is how these courses take
place. There is a message and a feedback, both ways.
xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer, may
I just make one last sentence?
I think when we talk about the feedback
network, we are not talking about public officials but
also network of private business o[r] community-based
organizations that will be reacting. As a matter of fact,
we will put more credence or credibility on the private
network of volunteers and voluntary community-based

organizations. So I do not think we are afraid that there will

be another OMA in the making.[132] (Emphasis supplied)

Further, E.O. No. 3 enumerates the functions and responsibilities of the

PAPP, one of which is to [c]onduct regular dialogues with the National Peace

The imperative of a public consultation, as a species of the right to

information, is evident in the marching orders to respondents. The
mechanics for the duty to disclose information and to conduct public
consultation regarding the peace agenda and process is manifestly provided
by E.O. No. 3.[133] The preambulatory clause of E.O. No. 3 declares that
there is a need to further enhance the contribution of civil society to the
comprehensive peace process by institutionalizing the peoples participation.
One of the three underlying principles of the comprehensive peace
process is that it should be community-based, reflecting the sentiments,
values and principles important to all Filipinos and shall be defined not by
the government alone, nor by the different contending groups only, but by all
Filipinos

as

one

community.[134] Included

as

component

of

the

comprehensive peace process is consensus-building and empowerment for

peace, which includes continuing consultations on both national and local
levels to build consensus for a peace agenda and process, and the

Forum (NPF) and other peace partners to seek relevant information,

comments, recommendations as well as to render appropriate and timely
reports on the progress of the comprehensive peace process. [137] E.O. No. 3
mandates the establishment of the NPF to be the principal forum for the
PAPP to consult with and seek advi[c]e from the peace advocates, peace
partners and concerned sectors of society on both national and local levels,
on the implementation of the comprehensive peace process, as well as for
government[-]civil society dialogue and consensus-building on peace
agenda and initiatives.[138]

In fine, E.O. No. 3 establishes petitioners right to be consulted on the

peace agenda, as a corollary to the constitutional right to information
and disclosure.
PAPP
Esperon
committed
grave
abuse of discretion

mobilization and facilitation of peoples participation in the peace process.[135]

The PAPP committed grave abuse of discretion when he failed to carry
Clearly, E.O. No. 3 contemplates not just the conduct of
a plebiscite
respondents

to

effectuate

position

consultation.[136]

that

continuing consultations,
plebiscite

is

more

contrary to

than

sufficient

out the pertinent consultation. The furtive process by which the MOA-AD
was designed and craftedruns contrary to and in excess of the legal
authority, and amounts to a whimsical, capricious, oppressive, arbitrary and
despotic exercise thereof.

The Court may not, of course, require the PAPP to conduct the

final

consultation in a particular way or manner. It may, however, require him to

Courts August 4, 2008 Resolution, without a prayer for the documents

comply with the law and discharge the functions within the authority

disclosure in camera, or without a manifestation that it was complying

granted by the President.

[139]

draft

of

the

MOA-AD.By

unconditionally

complying

with

the

therewith ex abundante ad cautelam.

Petitioners are not claiming a seat at the negotiating table, contrary to

Petitioners assertion that the Local Government Code (LGC) of 1991

respondents retort in justifying the denial of petitioners right to be

declares it a State policy to require all national agencies and offices to

consulted. Respondents stance manifests the manner by which they treat

conduct periodic consultations with appropriate local government units, non-

the salient provisions of E.O. No. 3 on peoples participation. Such disregard

governmental and people's organizations, and other concerned sectors of

of the express mandate of the President is not much different from

the community before any project or program is implemented in their

superficial conduct toward token provisos that border on classic lip service.

respective

[140]

intergovernmental relations puts flesh into this avowed policy:

It illustrates a gross evasion of positive duty and a virtual refusal to

jurisdictions[142] is

well-taken. The

LGC

chapter

on

perform the duty enjoined.

As for respondents invocation of the doctrine of executive privilege, it is not

tenable under the premises. The argument defies sound reason when
contrasted with E.O. No. 3s explicit provisions on continuing consultation
and dialogue on both national and local levels. The executive order even
recognizes the exercise of the publics right even before the GRP makes

Prior Consultations Required. No project or program shall

be implemented by government authorities unless the
consultations mentioned in Sections 2 (c) and 26
hereof are complied with, and prior approval of the
sanggunian concerned is obtained: Provided, That
occupants in areas where such projects are to be
implemented shall not be evicted unless appropriate
relocation sites have been provided, in accordance with
the provisions of the Constitution.[143] (Italics and
underscoring supplied)

its official recommendations or before the government proffers its definite

propositions.[141] It bear emphasis that E.O. No. 3 seeks to elicit relevant
advice, information, comments and recommendations from the people
through dialogue.

In Lina, Jr. v. Hon. Pao,[144] the Court held that the above-stated policy and
above-quoted provision of the LGU apply only to national programs or
projects which are to be implemented in a particular local community. Among
the programs and projects covered are those that are critical to the

AT ALL EVENTS, respondents effectively waived the defense of executive

privilege in view of their unqualified disclosure of the official copies of the

environment and human ecology including those that may call for

the eviction of a particular group of people residing in the locality where

these will be implemented.

[145]

The MOA-AD is one peculiar program that

provisions requiring changes to the legal framework, such clause is itself

invalid, as will be discussed in the following section.

unequivocally and unilaterally vests ownership of a vast territory to the

Bangsamoro people,[146] which could pervasively and drastically result

Indeed, ours is an open society, with all the acts of the government subject

to the diaspora or displacement of a great number of inhabitants from

to public scrutiny and available always to public cognizance. This has to be

their total environment.

so if the country is to remain democratic, with sovereignty residing in the

people and all government authority emanating from them.[149]

With respect to the indigenous cultural communities/indigenous peoples

(ICCs/IPs), whose interests are represented herein by petitioner Lopez and

ON THE SECOND SUBSTANTIVE ISSUE

are adversely affected by the MOA-AD, the ICCs/IPs have, under the IPRA,
the right to participate fully at all levels of decision-making in matters which
may affect their rights, lives and destinies.[147] The MOA-AD, an instrument
recognizing ancestral domain, failed to justify its non-compliance with the
clear-cut mechanisms ordained in said Act,[148] which entails, among other
things, the observance of the free and prior informed consent of the
ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or any
government agency the power to delineate and recognize an ancestral
domain claim by mere agreement or compromise. The recognition of the
ancestral domain is the raison detre of the MOA-AD, without which all other
stipulations or consensus points necessarily must fail. In proceeding to make
a sweeping declaration on ancestral domain, without complying with the
IPRA, which is cited as one of the TOR of the MOA-AD, respondents
clearly transcended the boundaries of their authority. As it seems, even
the heart of the MOA-AD is still subject to necessary changes to the legal
framework. While paragraph 7 on Governance suspends the effectivity of all

With regard to the provisions of the MOA-AD, there can be no question that
they cannot all be accommodated under the present Constitution and
laws. Respondents have admitted as much in the oral arguments before this
Court, and the MOA-AD itself recognizes the need to amend the existing
legal

framework

to

render

effective

at

least

some

of

its

provisions. Respondents, nonetheless, counter that the MOA-AD is free of

any legal infirmity because any provisions therein which are inconsistent with
the present legal framework will not be effective until the necessary changes
to that framework are made. The validity of this argument will be considered
later. For now, the Court shall pass uponhow
The
MOA-AD
is
inconsistent with the
Constitution
and
laws as presently
worded.

In general, the objections against the MOA-AD center on the extent of the

Compact. Nonetheless, given that there is a concept of association in

powers conceded therein to the BJE. Petitioners assert that the powers

international law, and the MOA-AD by its inclusion of international law

granted to the BJE exceed those granted to any local government under

instruments in its TOR placed itself in an international legal context, that

present laws, and even go beyond those of the present ARMM. Before

concept of association may be brought to bear in understanding the use of

assessing some of the specific powers that would have been vested in the

the term associative in the MOA-AD.

BJE, however, it would be useful to turn first to a general idea that serves as
a unifying link to the different provisions of the MOA-AD, namely, the

Keitner and Reisman state that

international law concept of association. Significantly, the MOA-AD explicitly

alludes to this concept, indicating that the Parties actually framed its
provisions with it in mind.

Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on

RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last

[a]n association is formed when two states of unequal

power voluntarily establish durable links. In the basic
model, one state, the associate, delegates certain
responsibilities to the other, the principal, while
maintaining its international status as a state. Free
associations represent a middle ground between
integration and independence. x x x[150] (Emphasis and
underscoring supplied)

mentioned provision, however, that the MOA-AD most clearly uses it to

describe the envisioned relationship between the BJE and the Central

For purposes of illustration, the Republic of the Marshall Islands and the

Government.

Federated States of Micronesia (FSM), formerly part of the U.S.-

4. The relationship between the Central Government

and
the
Bangsamoro
juridical
entity
shall
be associative characterized by shared authority and
responsibility with a structure of governance based on
executive, legislative, judicial and administrative
institutions with defined powers and functions in the
comprehensive compact. A period of transition shall be
established in a comprehensive peace compact specifying
the relationship between the Central Government and the
BJE. (Emphasis and underscoring supplied)

administered Trust Territory of the Pacific Islands,[151] are associated states of

the U.S. pursuant to a Compact of Free Association. The currency in these
countries is the U.S. dollar, indicating their very close ties with the U.S., yet
they issue their own travel documents, which is a mark of their
statehood. Their international legal status as states was confirmed by the
UN Security Council and by their admission to UN membership.

The nature of the associative relationship may have been intended

According to their compacts of free association, the Marshall Islands and

to be defined more precisely in the still to be forged Comprehensive

the FSM generally have the capacity to conduct foreign affairs in their own

name and right, such capacity extending to matters such as the law of the

associated states as a transitional phase are Antigua, St. Kitts-Nevis-

sea, marine resources, trade, banking, postal, civil aviation, and cultural

Anguilla, Dominica, St.

relations. The U.S. government, when conducting its foreign affairs, is

become independent states.[153]

Lucia, St.

Vincent and Grenada. All

have

since

obligated to consult with the governments of the Marshall Islands or the FSM
on matters which it (U.S. government) regards as relating to or affecting

Back to the MOA-AD, it contains many provisions which are consistent with

either government.

the international legal concept of association, specifically the following: the

BJEs capacity to enter into economic and trade relations with foreign

In the event of attacks or threats against the Marshall Islands or the FSM,

countries, the commitment of the Central Government to ensure the BJEs

the U.S. government has the authority and obligation to defend them as if

participation in meetings and events in the ASEAN and the specialized UN

they were part of U.S. territory.The U.S. government, moreover, has the

agencies, and the continuing responsibility of the Central Government over

option of establishing and using military areas and facilities within these

external defense. Moreover, the BJEs right to participate in Philippine official

associated states and has the right to bar the military personnel of any third

missions bearing on negotiation of border agreements, environmental

country from having access to these territories for military purposes.

protection, and sharing of revenues pertaining to the bodies of water

adjacent to or between the islands forming part of the ancestral

It bears noting that in U.S. constitutional and international practice, free

domain, resembles the right of the governments of FSM and the Marshall

association is understood as an international association between

Islands to be consulted by the U.S. government on any foreign affairs matter

sovereigns. The Compact of Free Association is a treaty which is

affecting them.

subordinate to the associated nations national constitution, and each party

may terminate the association consistent with the right of independence.It

These provisions of the MOA indicate, among other things, that the

has been said that, with the admission of the U.S.-associated states to the

Parties aimed to vest in the BJE the status of an associated state or, at

UN in 1990, the UN recognized that the American model of free association

any rate, a status closely approximating it.

is actually based on an underlying status of independence.

[152]

In international practice, the associated state arrangement has usually been

used as a transitional device of former colonies on their way to full
independence. Examples of states that have passed through the status of

The
concept
of association is not
recognized under th
e present
Constitution

No province, city, or municipality, not even the ARMM, is recognized

It is not merely an expanded version of the ARMM, the status of its

under our laws as having an associative relationship with the national

relationship with the national government being fundamentally different from

government. Indeed, the concept implies powers that go beyond anything

that of the ARMM. Indeed,BJE is a state in all but name as it meets the

ever granted by the Constitution to any local or regional government. It also

criteria of a state laid down in the Montevideo Convention,[154] namely,

implies the recognition of the associated entity as a state. The Constitution,

a permanent population, a defined territory, agovernment, and a capacity to

however, does not contemplate any state in this jurisdiction other than the

enter into relations with other states.

Philippine State, much less does it provide for a transitory status that aims to
prepare any part of Philippine territory for independence.

Even assuming arguendo that the MOA-AD would not necessarily

sever any portion of Philippine territory, the spirit animating it which has

Even the mere concept animating many of the MOA-ADs provisions,

betrayed itself by its use of the concept of association runs counter to the

therefore, already requires for its validity the amendment of constitutional

national sovereignty and territorial integrity of the Republic.

provisions, specifically the following provisions of Article X:

The defining concept underlying the relationship between the
SECTION 1. The territorial and political subdivisions of the
Republic of the Philippines are the provinces, cities,
municipalities,
and
barangays.
There
shall
be autonomous regions in Muslim Mindanao and
the Cordilleras as hereinafter provided.
SECTION 15. There shall be created autonomous regions
in Muslim Mindanao and in the Cordilleras consisting of
provinces, cities, municipalities, and geographical areas
sharing common and distinctive historical and cultural
heritage, economic and social structures, and other
relevant characteristics within the framework of this
Constitution and the national sovereignty as well as
territorial integrity of the Republic of the Philippines.

national government and the BJE being itself contrary to the present
Constitution, it is not surprising that many of the specific provisions of
the MOA-AD on the formation and powers of the BJE are in conflict
with the Constitution and the laws.

Article X, Section 18 of the Constitution provides that [t]he creation of the

autonomous region shall be effective when approved by a majority of the
votes cast by the constituent units in a plebiscite called for the purpose,
provided that only provinces, cities, and geographic areas voting

The BJE is a far more powerful

entity than the autonomous region
recognized in the Constitution

favorably in such plebiscite shall be included in the autonomous

region. (Emphasis supplied)

As reflected above, the BJE is more of a state than an autonomous

region. But even assuming that it is covered by the term autonomous region
in the constitutional provision just quoted, the MOA-AD would still be in
conflict with it. Under paragraph 2(c) on TERRITORY in relation to 2(d) and

(6) Economic, social, and tourism development;

(7) Educational policies;
(8) Preservation and development of the cultural heritage;
and
(9) Such other matters as may be authorized by law for
the promotion of the general welfare of the
people of the region. (Underscoring supplied)

2(e), the present geographic area of the ARMM and, in addition, the
municipalities of Lanao del Norte which voted for inclusion in the ARMM

Again on the premise that the BJE may be regarded as an autonomous

during the 2001 plebiscite Baloi, Munai, Nunungan, Pantar, Tagoloan and

region, the MOA-AD would require an amendment that would expand the

Tangkal are automatically part of the BJE without need of another plebiscite,

above-quoted provision. The mere passage of new legislation pursuant to

in contrast to the areas under Categories A and B mentioned earlier in the

sub-paragraph No. 9 of said constitutional provision would not suffice, since

overview. That the present components of the ARMM and the above-

any new law that might vest in the BJE the powers found in the MOA-AD

mentioned municipalities voted for inclusion therein in 2001, however,

must, itself, comply with other provisions of the Constitution. It would not do,

does not render another plebiscite unnecessary under the Constitution,

for instance, to merely pass legislation vesting the BJE with treaty-making

precisely because what these areas voted for then was their inclusion in the

power in order to accommodate paragraph 4 of the strand on RESOURCES

ARMM, not the BJE.

which states: The BJE is free to enter into any economic cooperation and

The MOA-AD, moreover, would not

comply with Article X, Section 20 of
the Constitution

trade relations with foreign countries: provided, however, that such

relationships and understandings do not include aggression against the
Government of the Republic of the Philippines x x x. Under our constitutional
system, it is only the President who has that power. Pimentel v. Executive

since that provision defines the powers of autonomous regions as follows:

SECTION 20. Within its territorial jurisdiction and subject
to the provisions of this Constitution and national laws, the
organic act of autonomous regions shall provide for
legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;

Secretary[155] instructs:
In our system of government, the President, being the
head of state, is regarded as the sole organ and
authority in external relations and is the country's sole
representative with foreign nations.As the chief
architect of foreign policy, the President acts as the
country's mouthpiece with respect to international affairs.
Hence, the President is vested with the authority
to deal with foreign states and governments, extend or
withhold recognition, maintain diplomatic relations,
enter into treaties, and otherwise transact the

business of foreign relations. In the realm of treatymaking, the President has the sole authority to
negotiate with other states. (Emphasis and underscoring
supplied)

Article X, Section 3 of the Organic Act of the ARMM is a bar to the

adoption of the definition of Bangsamoro people used in the MOAAD. Paragraph 1 onCONCEPTS AND PRINCIPLES states:

Article II, Section 22 of the Constitution must also be amended if the

scheme envisioned in the MOA-AD is to be effected. That constitutional
provision states: The State recognizes and promotes the rights of indigenous
cultural

communities within

the

framework

of national

unity and

development. (Underscoring supplied) An associativearrangement does not

uphold national unity. While there may be a semblance of unity because of

1. It is the birthright of all Moros and all Indigenous

peoples of Mindanao to identify themselves and be
accepted as Bangsamoros. The Bangsamoro people
refers to those who are natives or original inhabitants of
Mindanao and its adjacent islands including Palawan
and the Sulu archipelago at the time of conquest or
colonization of its descendants whether mixed or of full
blood. Spouses and their descendants are classified as
Bangsamoro. The freedom of choice of the Indigenous
people shall be respected. (Emphasis and underscoring
supplied)

the associative ties between the BJE and the national government, the act of
placing a portion of Philippine territory in a status which, in international

This use of the term Bangsamoro sharply contrasts with that found in

practice, has generally been a preparation for independence, is certainly not

the Article X, Section 3 of the Organic Act, which, rather than lumping

conducive to national unity.

together the identities of the Bangsamoro and other indigenous peoples

Besides
being
irreconcilable with the
Constitution,
the
MOA-AD
is
also inconsistent
with
prevailing
statutory law, among
which are R.A. No.
9054[156] or
the
Organic Act of the
ARMM, and the IPRA.
[157]

living in Mindanao, clearly distinguishes between Bangsamoro people

and Tribal peoples, as follows:
As used in this Organic Act, the phrase indigenous cultural
community refers to Filipino citizens residing in the
autonomous region who are:
(a) Tribal peoples. These are citizens whose social,
cultural and economic conditions distinguish them from
other sectors of the national community; and
(b) Bangsa Moro people. These are citizens who
are believers in Islam and who have retained some or
all of their own social, economic, cultural, and political
institutions.

Respecting the IPRA, it lays down the prevailing procedure for the
delineation and recognition of ancestral domains. The MOA-ADs manner of
delineating the ancestral domain of the Bangsamoro people is a clear
departure from that procedure. By paragraph 1 of TERRITORY, the Parties
simply agree that, subject to the delimitations in the agreed Schedules, [t]he
Bangsamoro homeland and historic territory refer to the land mass as well
as the maritime, terrestrial, fluvial and alluvial domains, and the aerial
domain, the atmospheric space above it, embracing the Mindanao-SuluPalawan geographic region.

Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure,
as illustrated in the following provisions thereof:
SECTION 52. Delineation Process. The identification and
delineation of ancestral domains shall be done in
accordance with the following procedures:
xxxx
b) Petition for Delineation. The process of delineating a
specific perimeter may be initiated by the NCIP with the
consent of the ICC/IP concerned, or through a Petition for
Delineation filed with the NCIP, by a majority of the
members of the ICCs/IPs;
c) Delineation Proper. The official delineation of ancestral
domain boundaries including census of all community
members therein, shall be immediately undertaken by the
Ancestral Domains Office upon filing of the application by
the ICCs/IPs concerned. Delineation will be done in
coordination with the community concerned and shall at all
times include genuine involvement and participation by the
members of the communities concerned;

d) Proof Required. Proof of Ancestral Domain Claims shall

include the testimony of elders or community under oath,
and other documents directly or indirectly attesting to the
possession or occupation of the area since time
immemorial by such ICCs/IPs in the concept of owners
which shall be any one (1) of the following authentic
documents:
1) Written accounts of the ICCs/IPs customs and
traditions;
2) Written accounts of the ICCs/IPs political structure
and institution;
3) Pictures showing long term occupation such as
those of old improvements, burial grounds,
sacred places and old villages;
4) Historical
accounts,
including
pacts
and
agreements concerning boundaries entered into
by the ICCs/IPs concerned with other ICCs/IPs;
5) Survey plans and sketch maps;
6) Anthropological data;
7) Genealogical surveys;
8) Pictures and descriptive histories of traditional
communal forests and hunting grounds;
9) Pictures and descriptive histories of traditional
landmarks such as mountains, rivers, creeks,
ridges, hills, terraces and the like; and
10) Write-ups of names and places derived from the
native dialect of the community.
e) Preparation of Maps. On the basis of such investigation
and the findings of fact based thereon, the Ancestral
Domains Office of the NCIP shall prepare a perimeter
map, complete with technical descriptions, and a
description of the natural features and landmarks
embraced therein;

f) Report of Investigation and Other Documents. A

complete copy of the preliminary census and a report of
investigation, shall be prepared by the Ancestral Domains
Office of the NCIP;
g) Notice and Publication. A copy of each document,
including a translation in the native language of the
ICCs/IPs concerned shall be posted in a prominent place
therein for at least fifteen (15) days. A copy of the
document shall also be posted at the local, provincial and
regional offices of the NCIP, and shall be published in a
newspaper of general circulation once a week for two (2)
consecutive weeks to allow other claimants to file
opposition thereto within fifteen (15) days from date of
such publication: Provided, That in areas where no such
newspaper exists, broadcasting in a radio station will be a
valid substitute: Provided, further, That mere posting shall
be deemed sufficient if both newspaper and radio station
are not available;
h) Endorsement to NCIP. Within fifteen (15) days from
publication, and of the inspection process, the Ancestral
Domains Office shall prepare a report to the NCIP
endorsing a favorable action upon a claim that is deemed
to have sufficient proof. However, if the proof is deemed
insufficient, the Ancestral Domains Office shall require the
submission of additional evidence: Provided, That the
Ancestral Domains Office shall reject any claim that is
deemed patently false or fraudulent after inspection and
verification: Provided, further, That in case of rejection, the
Ancestral Domains Office shall give the applicant due
notice, copy furnished all concerned, containing the
grounds for denial. The denial shall be appealable to the
NCIP: Provided, furthermore, That in cases where there
are conflicting claims among ICCs/IPs on the boundaries
of ancestral domain claims, the Ancestral Domains Office
shall cause the contending parties to meet and assist
them in coming up with a preliminary resolution of the
conflict, without prejudice to its full adjudication according
to the section below.
xxxx

To remove all doubts about the irreconcilability of the MOA-AD with

the present legal system, a discussion of not only the Constitution and
domestic statutes, but also of international law is in order, for
Article II, Section 2
of the Constitution
states
that
the
Philippines adopts
the
generally
accepted principles
of international law
as part of the law of
the land.

Applying this provision of the Constitution, the Court, in Mejoff v. Director of

Prisons,[158] held that the Universal Declaration of Human Rights is part of the
law of the land on account of which it ordered the release on bail of a
detained alien of Russian descent whose deportation order had not been
executed

even

after

two

years. Similarly,

the

Court

inAgustin

v.

Edu[159] applied the aforesaid constitutional provision to the 1968 Vienna

Convention on Road Signs and Signals.

International law has long recognized the right to self-determination of

peoples, understood not merely as the entire population of a State but also a
portion thereof. In considering the question of whether the people of Quebec
had a right to unilaterally secede from Canada, the Canadian Supreme
Court in REFERENCE RE SECESSION OF QUEBEC[160]had occasion to
acknowledge that the right of a people to self-determination is now so widely
recognized in international conventions that the principle has acquired a

status beyond convention and is considered a general principle of

international law.
Among the conventions referred to are the International Covenant
on Civil and Political Rights[161] and the International Covenant on Economic,
Social and Cultural Rights[162] which state, in Article 1 of both covenants, that
all peoples, by virtue of the right of self-determination, freely determine their
political status and freely pursue their economic, social, and cultural
development.

political status freely determined by a people constitute

modes of implementing the right of self-determination
by that people. (Emphasis added)
127. The international law principle of selfdetermination has evolved within a framework of
respect for the territorial integrity of existing
states. The various international documents that support
the existence of a peoples right to self-determination also
contain parallel statements supportive of the conclusion
that the exercise of such a right must be sufficiently limited
to prevent threats to an existing states territorial integrity
or the stability of relations between sovereign states.
x x x x (Emphasis, italics and underscoring
supplied)

The peoples right to self-determination should not, however, be understood

as extending to a unilateral right of secession. A distinction should be made
between the right of internal and external self-determination. REFERENCE

The Canadian Court went on to discuss the exceptional cases in which the

RE SECESSION OF QUEBEC is again instructive:

right to external self-determination can arise, namely, where a people is

(ii) Scope of the Right to Self-determination

126. The recognized sources of international law establish
that the right to self-determination of a people is
normally fulfilled through internal self-determination a
peoples pursuit of its political, economic, social and
cultural development within the framework of an
existing state. A right to external self-determination
(which in this case potentially takes the form of the
assertion of a right to unilateral secession) arises in
only the most extreme of cases and, even then, under
carefully defined circumstances. x x x

under colonial rule, is subject to foreign domination or exploitation outside a

colonial context, and less definitely but asserted by a number of
commentators is blocked from the meaningful exercise of its right
tointernal self-determination. The Court ultimately held that the population of
Quebec had no right to secession, as the same is not under colonial rule or
foreign domination, nor is it being deprived of the freedom to make political
choices and pursue economic, social and cultural development, citing that
Quebec is equitably represented in legislative, executive and judicial

External self-determination can be defined as in the

following statement from the Declaration on Friendly
Relations, supra, as

institutions within Canada, even occupying prominent positions therein.

The establishment of a sovereign and independent

State, the free association or integration with an
independent State or the emergence into any other

The exceptional nature of the right of secession is further exemplified in the

REPORT OF THE INTERNATIONAL COMMITTEE OF JURISTS ON THE

LEGAL
[163]

ASPECTS

OF

THE

AALAND ISLANDS

QUESTION.

There, Sweden presented to the Council of the League of Nations the

question of whether the inhabitants of the Aaland Islandsshould be

authorized to determine by plebiscite if the archipelago should remain under
Finnish sovereignty or be incorporated in the kingdom of Sweden. The
Council, before resolving the question, appointed an International Committee
composed of three jurists to submit an opinion on the preliminary issue of
whether the dispute should, based on international law, be entirely left to the
domestic jurisdiction of Finland. The Committee stated the rule as follows:

The Committee held that the dispute concerning the Aaland Islands did not
refer to a question which is left by international law to the domestic
jurisdiction of Finland, thereby applying the exception rather than the rule
elucidated above. Its ground for departing from the general rule, however,
was a very narrow one, namely, the Aaland Islands agitation originated at a
time when Finland was undergoing drastic political transformation. The
internal situation of Finland was, according to the Committee, so abnormal
that, for a considerable time, the conditions required for the formation of a

x x x [I]n the absence of express provisions in international

treaties, the right of disposing of national territory is
essentially an attribute of the sovereignty of every
State. Positive International Law does not recognize
the right of national groups, as such, to separate
themselves from the State of which they form part by
the simple expression of a wish, any more than it
recognizes the right of other States to claim such a
separation. Generally speaking, the grant or refusal of
the right to a portion of its population of determining
its own political fate by plebiscite or by some other
method, is, exclusively, an attribute of the sovereignty
of every State which is definitively constituted. A
dispute between two States concerning such a question,
under normal conditions therefore, bears upon a question
which International Law leaves entirely to the domestic
jurisdiction of one of the States concerned. Any other
solution would amount to an infringement of sovereign
rights of a State and would involve the risk of creating
difficulties and a lack of stability which would not only be
contrary to the very idea embodied in term State, but
would also endanger the interests of the international
community. If this right is not possessed by a large or
small section of a nation, neither can it be held by the
State to which the national group wishes to be attached,
nor by any other State.(Emphasis and underscoring
supplied)

sovereign State did not exist. In the midst of revolution, anarchy, and civil
war, the legitimacy of the Finnish national government was disputed by a
large section of the people, and it had, in fact, been chased from the capital
and forcibly prevented from carrying out its duties. The armed camps and
the police were divided into two opposing forces. In light of these
circumstances, Finland was not, during the relevant time period, a
definitively constituted sovereign state. The Committee, therefore, found that
Finland did not possess the right to withhold from a portion of its population
the option to separate itself a right which sovereign nations generally have
with respect to their own populations.

Turning now to the more specific category of indigenous peoples, this term
has been used, in scholarship as well as international, regional, and state
practices, to refer to groups with distinct cultures, histories, and connections
to land (spiritual and otherwise) that have been forcibly incorporated into a
larger governing society. These groups are regarded as indigenous since

they are the living descendants of pre-invasion inhabitants of lands now

dominated by others. Otherwise stated, indigenous peoples, nations, or
communities are culturally distinctive groups that find themselves engulfed
by settler societies born of the forces of empire and conquest. [164] Examples
of groups who have been regarded as indigenous peoples are the Maori of
New Zealand and the aboriginal peoples of Canada.

As with the broader category of peoples, indigenous peoples situated within

Indigenous peoples, in exercising their right to selfdetermination, have the right to autonomy or selfgovernment in matters relating to their internal and
local affairs, as well as ways and means for financing
their autonomous functions.
Article 5
Indigenous peoples have the right to maintain and
strengthen their distinct political, legal, economic, social
and cultural institutions, while retaining their right to
participate fully, if they so choose, in the political,
economic, social and cultural life of the State.

states do not have a general right to independence or secession from those

states under international law,[165] but they do have rights amounting to what

Self-government, as used in international legal discourse pertaining to

was discussed above as the right to internal self-determination.

indigenous peoples, has been understood as equivalent to internal selfdetermination.[166] The extent of self-determination provided for in the UN

In a historic development last September 13, 2007, the UN General

DRIP is more particularly defined in its subsequent articles, some of which

Assembly adopted the United Nations Declaration on the Rights of

are quoted hereunder:

Indigenous Peoples (UN DRIP) throughGeneral Assembly Resolution

Article 8

61/295. The vote was 143 to 4, the Philippines being included among those

1. Indigenous peoples and individuals have the right not to

be subjected to forced assimilation or destruction of
their culture.

in favor, and the four voting against being Australia, Canada, New Zealand,
and the U.S. The Declaration clearly recognized the right of indigenous
peoples to self-determination, encompassing the right to autonomy or selfgovernment, to wit:
Article 3
Indigenous peoples have the right to self-determination.
By virtue of that right they freely determine their political
status and freely pursue their economic, social and
cultural development.
Article 4

2. States shall provide effective mechanisms for

prevention of, and redress for:
(a) Any action which has the aim or effect of
depriving them of their integrity as
distinct peoples, or of their cultural
values or ethnic identities;
(b) Any action which has the aim or effect of
dispossessing them of their lands,
territories or resources;
(c) Any form of forced population transfer
which has the aim or effect of violating or
undermining any of their rights;
(d) Any form of forced assimilation or integration;

(e) Any form of propaganda designed to

promote or incite racial or ethnic
discrimination directed against them.
Article 21
1. Indigenous peoples have the right, without
discrimination, to the improvement of their
economic and social conditions, including, inter alia,
in the areas of education, employment, vocational
training and retraining, housing, sanitation, health
and social security.
2. States shall take effective measures and, where
appropriate, special measures to ensure continuing
improvement of their economic and social
conditions. Particular attention shall be paid to the
rights and special needs of indigenous elders,
women, youth, children and persons with
disabilities.
Article 26
1. Indigenous peoples have the right to the lands,
territories and resources which they have
traditionally owned, occupied or otherwise used
or acquired.
2. Indigenous peoples have the right to own, use, develop
and control the lands, territories and resources that
they possess by reason of traditional ownership or
other traditional occupation or use, as well as those
which they have otherwise acquired.
3. States shall give legal recognition and protection to
these lands, territories and resources. Such
recognition shall be conducted with due respect to
the customs, traditions and land tenure systems of
the indigenous peoples concerned.
Article 30
1. Military activities shall not take place in the lands or
territories of indigenous peoples, unless justified by
a relevant public interest or otherwise freely agreed
with or requested by the indigenous peoples
concerned.

2. States shall undertake effective consultations with the

indigenous peoples concerned, through appropriate
procedures and in particular through their
representative institutions, prior to using their lands
or territories for military activities.
Article 32
1. Indigenous peoples have the right to determine and
develop priorities and strategies for the
development or use of their lands or territories and
other resources.
2. States shall consult and cooperate in good faith with
the indigenous peoples concerned through their
own representative institutions in order to obtain
their free and informed consent prior to the
approval of any project affecting their lands or
territories and other resources, particularly in
connection with the development, utilization or
exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just and
fair redress for any such activities, and appropriate
measures shall be taken to mitigate adverse
environmental, economic, social, cultural or spiritual
impact.
Article 37
1. Indigenous peoples have the right to the recognition,
observance
and
enforcement
of
treaties,
agreements and other constructive arrangements
concluded with States or their successors and to
have States honour and respect such treaties,
agreements and other constructive arrangements.
2. Nothing in this Declaration may be interpreted as
diminishing or eliminating the rights of indigenous
peoples contained in treaties, agreements and
other constructive arrangements.
Article 38

States in consultation and cooperation with indigenous

peoples, shall take the appropriate measures, including
legislative measures, to achieve the ends of this
Declaration.

Moreover, the UN DRIP, while upholding the right of indigenous peoples to

autonomy, does not obligate States to grant indigenous peoples the nearindependent status of an associated state. All the rights recognized in that

Assuming that the UN DRIP, like the Universal Declaration on Human

Rights, must now be regarded as embodying customary international law a
question which the Court need not definitively resolve here the obligations
enumerated therein do not strictly require the Republic to grant the
Bangsamoro people, through the instrumentality of the BJE, the particular
rights and powers provided for in the MOA-AD. Even the more specific
provisions of the UN DRIP are general in scope, allowing for flexibility in its

document are qualified in Article 46 as follows:

1. Nothing in this Declaration may be interpreted as
implying for any State, people, group or person any
right to engage in any activity or to perform any act
contrary to the Charter of the United Nations
or construed as authorizing or encouraging any
action which would dismember or impair, totally
or in part, the territorial integrity or political
unity of sovereign and independent States.

application by the different States.

There is, for instance, no requirement in the UN DRIP that States

Even if the UN DRIP were considered as part of the law of the land pursuant

now guarantee indigenous peoples their own police and internal security

to Article II, Section 2 of the Constitution, it would not suffice to uphold the

force. Indeed, Article 8 presupposes that it is the State which will provide

validity of the MOA-AD so as to render its compliance with other laws

protection for indigenous peoples against acts like the forced dispossession

unnecessary.

of their lands a function that is normally performed by police officers. If the

protection of a right so essential to indigenous peoples identity is

It is, therefore, clear that the MOA-AD contains numerous provisions

acknowledged to be the responsibility of the State, then surely the protection

that cannot be reconciled with the Constitution and the laws as

of rights less significant to them as such peoples would also be the duty of

presently worded. Respondents proffer, however, that the signing of the

States. Nor is there in the UN DRIP an acknowledgement of the right of

MOA-AD alone would not have entailed any violation of law or grave abuse

indigenous peoples to the aerial domain and atmospheric space. What it

of discretion on their part, precisely because it stipulates that the provisions

upholds, in Article 26 thereof, is the right of indigenous peoples to the lands,

thereof inconsistent with the laws shall not take effect until these laws are

territories and resources which they have traditionally owned, occupied or

amended. They cite paragraph 7 of the MOA-AD strand on GOVERNANCE

otherwise used or acquired.

quoted earlier, but which is reproduced below for convenience:

7. The Parties agree that the mechanisms and

modalities for the actual implementation of this MOA-AD
shall be spelt out in the Comprehensive Compact to
mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to
the existing legal framework shall come into force upon
signing of a Comprehensive Compact and upon effecting
the necessary changes to the legal framework with due
regard to non derogation of prior agreements and within
the stipulated timeframe to be contained in the
Comprehensive Compact.
Indeed, the foregoing stipulation keeps many controversial
provisions of the MOA-AD from coming into force until the necessary
changes to the legal framework are effected. While the word Constitution
is not mentioned in the provision now under consideration or
anywhere else in the MOA-AD, the term legal framework is certainly

Even apart from the above-mentioned Memorandum, however, the

MOA-AD is defective because the suspensive clause is invalid, as discussed
below.

The authority of the GRP Peace Negotiating Panel to negotiate with the
MILF is founded on E.O. No. 3, Section 5(c), which states that there shall be
established Government Peace Negotiating Panels for negotiations with
different rebel groups to be appointed by the President as her official
emissaries to conduct negotiations, dialogues, and face-to-face discussions
with rebel groups. These negotiating panels are to report to the President,
through the PAPP on the conduct and progress of the negotiations.

broad enough to include the Constitution.

It bears noting that the GRP Peace Panel, in exploring lasting
Notwithstanding the suspensive clause, however, respondents, by
their mere act of incorporating in the MOA-AD the provisions thereof
regarding the associative relationship between the BJE and the Central
Government, have already violated the Memorandum of Instructions From
The President dated March 1, 2001, which states that the negotiations shall
be conducted in accordance with x x x the principles of the sovereignty
and territorial integrity of the Republic of the Philippines. (Emphasis
supplied)Establishing an associative relationship between the BJE and the
Central Government is, for the reasons already discussed, a preparation for
independence, or worse, an implicit acknowledgment of an independent
status already prevailing.

solutions to the Moro Problem through its negotiations with the MILF, was
not restricted by E.O. No. 3 only to those options available under the laws as
they presently stand. One of the components of a comprehensive peace
process, which E.O. No. 3 collectively refers to as the Paths to Peace, is the
pursuit of social, economic, and political reforms which may require new
legislation or even constitutional amendments. Sec. 4(a) of E.O. No. 3,
which reiterates Section 3(a), of E.O. No. 125,[167] states:
SECTION 4. The Six Paths to Peace. The components of
the comprehensive peace process comprise the
processes known as the Paths to Peace. These
component processes are interrelated and not mutually
exclusive, and must therefore be pursued simultaneously

in a coordinated and integrated fashion. They shall

include, but may not be limited to, the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL
REFORMS. This component involves the vigorous
implementation of various policies, reforms,
programs and projects aimed at addressing the
root causes of internal armed conflicts and
social unrest. This may require administrative
action, new legislation or even constitutional
amendments.
x x x x (Emphasis supplied)

The President cannot delegate a power that she herself does not
possess. May the President, in the course of peace negotiations, agree to
pursue reforms that would require new legislation and constitutional
amendments, or should the reforms be restricted only to those solutions
which the present laws allow? The answer to this question requires a
discussion of
the extent of the
Presidents power to
conduct
peace
negotiations.

The MOA-AD, therefore, may reasonably be perceived as an

attempt of respondents to address, pursuant to this provision of E.O. No. 3,
the root causes of the armed conflict in Mindanao. The E.O. authorized them
to think outside the box, so to speak. Hence, they negotiated and were set
on signing the MOA-AD that included various social, economic, and political
reforms which cannot, however, all be accommodated within the present

That the authority of the President to conduct peace negotiations with rebel
groups is not explicitly mentioned in the Constitution does not mean that she
has no such authority. InSanlakas v. Executive Secretary,[168] in issue was
the authority of the President to declare a state of rebellion an authority
which is not expressly provided for in the Constitution.The Court held thus:

legal framework, and which thus would require new legislation and
constitutional amendments.

The inquiry on the legality of the suspensive clause, however, cannot stop
here, because it must be asked
whether
the
President
herself
may exercise the
power delegated to
the GRP Peace
Panel under E.O. No.
3, Sec. 4(a).

In her ponencia in Marcos v. Manglapus, Justice Cortes

put her thesis into jurisprudence. There, the Court, by a
slim 8-7 margin, upheld the President's power to forbid the
return of her exiled predecessor. The rationale for the
majority's ruling rested on the President's
. . . unstated residual powers which
are implied from the grant of
executive
power
and
which
are necessary for her to comply with
her
duties
under
the
Constitution. The powers of the
President are not limited to what are
expressly enumerated in the article
on the Executive Department and in
scattered
provisions
of
the

Constitution. This
is
so,
notwithstanding the avowed intent of the
members
of
the
Constitutional
Commission of 1986 to limit the powers
of the President as a reaction to the
abuses under the regime of Mr. Marcos,
for the result was a limitation of specific
powers of the President, particularly
those relating to the commander-in-chief
clause, but not a diminution of the
general grant of executive power.
Thus, the President's authority to declare a state of
rebellion springs in the main from her powers as chief
executive and, at the same time, draws strength from
her Commander-in-Chief powers. x x x (Emphasis and
underscoring supplied)
Similarly, the Presidents power to conduct peace negotiations is
implicitly included in her powers as Chief Executive and Commander-inChief. As Chief Executive, the President has the general responsibility to
promote public peace, and as Commander-in-Chief, she has the more

states emerging from conflict return to conflict. Moreover,

a substantial proportion of transitions have resulted in
weak or limited democracies.
The design of a constitution and its constitutionmaking process can play an important role in the political
and governance transition. Constitution-making after
conflict is an opportunity to create a common vision of the
future of a state and a road map on how to get there. The
constitution can be partly a peace agreement and partly a
framework setting up the rules by which the new
democracy will operate.[170]
In the same vein, Professor Christine Bell, in her article on the nature and
legal status of peace agreements, observed that the typical way that peace
agreements establish or confirm mechanisms for demilitarization and
demobilization

is

by

linking

them

to new

constitutional

structures addressing governance, elections, and legal and human rights

institutions.[171]

specific duty to prevent and suppress rebellion and lawless violence.[169]

In the Philippine experience, the link between peace agreements
As the experience of nations which have similarly gone through internal
armed conflict will show, however, peace is rarely attained by simply
pursuing a military solution.Oftentimes, changes as far-reaching as a
fundamental reconfiguration of the nations constitutional structure is
required. The observations of Dr. Kirsti Samuels are enlightening, to wit:

and constitution-making has been recognized by no less than the framers of

the Constitution. Behind the provisions of the Constitution on autonomous
regions[172] is the framers intention to implement a particular peace
agreement, namely, the Tripoli Agreement of 1976 between theGRP and the
MNLF, signed by then Undersecretary of National Defense Carmelo Z.
Barbero and then MNLF Chairman Nur Misuari.

x x x [T]he fact remains that a successful political and

governance transition must form the core of any postconflict peace-building mission. As we have observed
in Liberia and Haiti over the last ten years, conflict
cessation without modification of the political environment,
even where state-building is undertaken through technical
electoral assistance and institution- or capacity-building, is
unlikely to succeed. On average, more than 50 percent of

MR. ROMULO. There are other speakers; so,

although I have some more questions, I will reserve my
right to ask them if they are not covered by the other
speakers. I have only two questions.
I heard one of the Commissioners say that
local autonomy already exists in the Muslim region; it is
working very well; it has, in fact, diminished a great deal of

the problems. So, my question is: since that already

exists, why do we have to go into something new?
MR. OPLE. May I answer that on behalf of
Chairman Nolledo. Commissioner Yusup Abubakar is right
that certain definite steps have been taken to
implement the provisions of the TripoliAgreement with
respect to an autonomous region in Mindanao. This is
a good first step, but there is no question that this is
merely a partial response to the Tripoli Agreement
itself and to the fuller standard of regional autonomy
contemplated in that agreement, and now by state
policy.[173] (Emphasis supplied)

amendment and revision. In particular, Congress would have the option,

pursuant to Article XVII, Sections 1 and 3 of the Constitution, to propose the
recommended amendments or revision to the people, call a constitutional
convention, or submit to the electorate the question of calling such a
convention.

While the President does not possess constituent powers as those powers
may be exercised only by Congress, a Constitutional Convention, or the
people through initiative and referendum she may submit proposals for

The constitutional provisions on autonomy and the statutes enacted

constitutional change to Congress in a manner that does not involve the

pursuant to them have, to the credit of their drafters, been partly

arrogation of constituent powers.

successful. Nonetheless, the Filipino people are still faced with the reality of
an on-going conflict between the Government and the MILF. If the President

In Sanidad v. COMELEC,[174] in issue was the legality of then President

is to be expected to find means for bringing this conflict to an end and to

Marcos act of directly submitting proposals for constitutional amendments to

achieve lasting peace in Mindanao, then she must be given the leeway to

a referendum, bypassing the interim National Assembly which was the body

explore, in the course of peace negotiations, solutions that may require

vested by the 1973 Constitution with the power to propose such

changes to the Constitution for their implementation. Being uniquely vested

amendments. President Marcos, it will be recalled, never convened the

with the power to conduct peace negotiations with rebel groups, the

interim National Assembly. The majority upheld the Presidents act, holding

President is in a singular position to know the precise nature of their

that the urges of absolute necessity compelled the President as the agent of

grievances which, if resolved, may bring an end to hostilities.

the people to act as he did, there being no interim National Assembly to

propose constitutional amendments. Against this ruling, Justices Teehankee

The President may not, of course, unilaterally implement the

and Muoz Palma vigorously dissented. The Courts concern at present,

solutions that she considers viable, but she may not be prevented from

however, is not with regard to the point on which it was then divided in that

submitting them as recommendations to Congress, which could then, if it is

controversial case, but on that which was not disputed by either side.

minded, act upon them pursuant to the legal procedures for constitutional

Justice Teehankees dissent,[175] in particular, bears noting. While he

disagreed that the President may directly submit proposed constitutional

Marcos did in Sanidad, but for their independent consideration of whether

these recommendations merit being formally proposed through initiative.

amendments to a referendum, implicit in his opinion is a recognition that he

would have upheld the Presidents action along with the majority had the

These recommendations, however, may amount to nothing more than the

President convened the interim National Assembly and coursed his

Presidents suggestions to the people, for any further involvement in the

proposals through it. Thus Justice Teehankee opined:

process of initiative by the Chief Executive may vitiate its character as a

genuine peoples initiative. The only initiative recognized by the Constitution

Since the Constitution provides for the organization of the

essential departments of government, defines and delimits
the powers of each and prescribes the manner of the
exercise of such powers, and the constituent power has
not been granted to but has been withheld from the
President or Prime Minister, it follows that the Presidents
questioned
decrees
proposing
and
submitting
constitutional amendments directly to the people (without
the intervention of the interim National Assembly in
whom the power is expressly vested) are devoid of
constitutional and legal basis.[176] (Emphasis supplied)

is that which truly proceeds from the people. As the Court stated in Lambino
v. COMELEC:[177]

President in the course of conducting peace negotiations may validly

The Lambino Group claims that their initiative is

the people's voice. However, the Lambino Group
unabashedly states in ULAP Resolution No. 2006-02, in
the verification of their petition with the COMELEC, that
ULAP maintains its unqualified support to the agenda of
Her Excellency President Gloria Macapagal-Arroyo for
constitutional
reforms.
The
Lambino
Group
thus admits that their people's initiative is an unqualified
support to the agenda of the incumbent President to
change the Constitution. This forewarns the Court to be
wary of incantations of people's voice or sovereign will in
the present initiative.

consider implementing even those policies that require changes to the

It will be observed that the President has authority, as stated in her

Constitution, but she may not unilaterally implement them without the

oath of office,[178] only to preserve and defend the Constitution. Such

intervention of Congress, or act in any way as if the assent of that body

presidential power does not, however, extend to allowing her to change the

were assumed as a certainty.

Constitution,

From the foregoing discussion, the principle may be inferred that the

but

simply

to

recommend

proposed

amendments

or

revision. As long as she limits herself to recommending these changes and

Since, under the present Constitution, the people also have the power to

submits to the proper procedure for constitutional amendments and revision,

directly propose amendments through initiative and referendum, the

her mere recommendation need not be construed as an unconstitutional act.

President may also submit her recommendations to the people, not as a

formal proposal to be voted on in a plebiscite similar to what President

The foregoing discussion focused on the Presidents authority to

propose constitutional amendments,

since

her

authority

to

legal framework. This stipulation does not bear the marks of a suspensive

propose

condition defined in civil law as a future and uncertain event but of a term. It

new legislation is not in controversy.It has been an accepted practice for

is not a question of whether the necessary changes to the legal framework

Presidents in this jurisdiction to propose new legislation. One of the more

will be effected, but when.That there is no uncertainty being contemplated is

prominent instances the practice is usually done is in the yearly State of the

plain from what follows, for the paragraph goes on to state that the

Nation Address of the President to Congress. Moreover, the annual general

contemplated changes shall be with due regard to non derogation of prior

appropriations bill has always been based on the budget prepared by the

agreements and within the stipulated timeframe to be contained in the

President, which for all intents and purposes is a proposal for new legislation

Comprehensive Compact.

coming from the President.[179]

Pursuant
The
suspensive
clause in the MOAAD viewed in light of
the above-discussed
standards

to

this

stipulation,

therefore,

it

is mandatory for

the GRP to effect the changes to the legal framework contemplated in the
MOA-AD which changes would include constitutional amendments, as
discussed earlier. It bears noting that,

as recommendations either to Congress or the people, in whom constituent

By the time these

changes are put in
place, the MOA-AD
itself
would
be
counted among the
prior
agreements
from which there
could
be
no
derogation.

powers are vested.

What remains for discussion in the Comprehensive Compact would merely

Given the limited nature of the Presidents authority to propose

constitutional amendments, she cannot guarantee to any third party that
the required amendments will eventually be put in place, nor even be
submitted to a plebiscite. The most she could do is submit these proposals

be the implementing details for these consensus points and, notably,

Paragraph 7 on Governance of the MOA-AD states, however, that

the deadline for effecting the contemplated changes to the legal framework.

all provisions thereof which cannot be reconciled with the present

Constitution and laws shall come into force upon signing of a

Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent

Comprehensive Compact and upon effecting the necessary changes to the

with the limits of the Presidents authority to propose constitutional

amendments, it being a virtual guarantee that the Constitution and the laws

shall be recommended by the GRP to Congress for incorporation in the

of the Republic of the Philippines will certainly be adjusted to conform to all

amendatory or repealing law.

the consensus points found in the MOA-AD. Hence, it must be struck down
as unconstitutional.

Concerns have been raised that the MOA-AD would have given rise to a
binding international law obligation on the part of the Philippines to change

A comparison between the suspensive clause of the MOA-AD with

a similar provision appearing in the 1996 final peace agreement between the

its Constitution in conformity thereto, on the ground that it may be

considered either as a binding agreement under international law, or a
unilateral declaration of the Philippine government to the international

MNLF and the GRP is most instructive.

community that it would grant to the Bangsamoro people all the concessions
As a backdrop, the parties to the 1996 Agreement stipulated that it
would be implemented in two phases. Phase I covered a three-year
transitional

period

involving

the

putting

up

of

therein stated. Neither ground finds sufficient support in international law,

however.

new administrative

structures through Executive Order, such as the Special Zone of Peace and
Development (SZOPAD) and the Southern Philippines Council for Peace
and Development (SPCPD), while Phase II covered the establishment of the
new regional autonomous government through amendment or repeal of R.A.

The MOA-AD, as earlier mentioned in the overview thereof, would

have included foreign dignitaries as signatories. In addition, representatives
of other nations were invited to witness its signing in Kuala Lumpur. These
circumstances readily lead one to surmise that the MOA-AD would have had
the status of a binding international agreement had it been signed. An

No. 6734, which was then the Organic Act of the ARMM.

examination of the prevailing principles in international law, however, leads

The stipulations on Phase II consisted of specific agreements on

to the contrary conclusion.

the structure of the expanded autonomous region envisioned by the

parties. To that extent, they are similar to the provisions of the MOAAD. There

is,

however,

crucial

difference

between

the

two

agreements. While the MOA-AD virtually guarantees that the necessary

changes to the legal framework will be put in place, the GRP-MNLF final
peace agreement states thus: Accordingly, these provisions [on Phase II]

The Decision on CHALLENGE TO JURISDICTION: LOM ACCORD

AMNESTY[180] (the Lom Accord case) of the Special Court of Sierra Leone is
enlightening. The Lom Accord was a peace agreement signed on July 7,
1999 between the Government of Sierra Leone and the Revolutionary
United Front (RUF), a rebel group with which the Sierra Leone Government
had been in armed conflict for around eight years at the time of

signing. There were non-contracting signatories to the agreement, among

not in international law.Hence, the Special Court held, it is ineffective in

which were the Government of the Togolese Republic, the Economic

depriving an international court like it of jurisdiction.

Community of West African States, and the UN.

On January 16, 2002, after a successful negotiation between the

UN Secretary-General and the Sierra Leone Government, another
agreement was entered into by the UN and that Government whereby the
Special Court of Sierra Leone was established. The sole purpose of the
Special Court, an international court, was to try persons who bore the
greatest responsibility for serious violations of international humanitarian law
and Sierra Leonean law committed in the territory of Sierra Leone since
November 30, 1996.

Among the stipulations of the Lom Accord was a provision for the
full pardon of the members of the RUF with respect to anything done by
them in pursuit of their objectives as members of that organization since the
conflict began.

In the Lom Accord case, the Defence argued that the Accord
created

an internationally

binding obligation

not

to

prosecute

the

beneficiaries of the amnesty provided therein, citing, among other things, the
participation of foreign dignitaries and international organizations in the
finalization of that agreement. The Special Court, however, rejected this
argument, ruling that the Lome Accord is not a treaty and that it can only
create binding obligations and rights between the parties in municipal law,

37. In regard to the nature of a negotiated settlement of

an internal armed conflict it is easy to assume and
to argue with some degree of plausibility, as
Defence counsel for the defendants seem to
have done, that the mere fact that in addition to
the parties to the conflict, the document
formalizing the settlement is signed by foreign
heads of state or their representatives and
representatives of international organizations,
means the agreement of the parties is
internationalized so as to create obligations in
international law.
xxxx
40. Almost every conflict resolution will involve the parties
to the conflict and the mediator or facilitator of the
settlement, or persons or bodies under whose
auspices the settlement took place but who are not
at all parties to the conflict, are not contracting
parties and who do not claim any obligation from
the contracting parties or incur any obligation from
the settlement.
41. In this case, the parties to the conflict are the
lawful authority of the State and the RUF which
has no status of statehood and is to all intents
and purposes a faction within the state.The
non-contracting signatories of the Lom
Agreement
were moral
guarantors of
the
principle that, in the terms of Article XXXIV of
the Agreement, this peace agreement is
implemented with integrity and in good faith by
both parties. The moral guarantors assumed no
legal obligation. It is recalled that the UN by its
representative
appended,
presumably
for
avoidance of doubt, an understanding of the extent
of the agreement to be implemented as not
including certain international crimes.

42. An international agreement in the nature of a treaty

must create rights and obligations regulated by
international law so that a breach of its terms will be
a breach determined under international law which
will
also
provide
principle
means
of
enforcement. The Lom Agreement created
neither rights nor obligations capable of being
regulated by international law. An agreement
such as the Lom Agreement which brings to an
end an internal armed conflict no doubt creates
a factual situation of restoration of peace that
the international community acting through the
Security Council may take note of. That,
however, will not convert it to an international
agreement which creates an obligation
enforceable in international, as distinguished
from municipal, law. A breach of the terms of such
a peace agreement resulting in resumption of
internal armed conflict or creating a threat to peace
in the determination of the Security Council may
indicate a reversal of the factual situation of peace
to be visited with possible legal consequences
arising from the new situation of conflict
created. Such consequences such as action by the
Security Council pursuant to Chapter VII arise from
the situation and not from the agreement, nor from
the obligation imposed by it. Such action cannot be
regarded as a remedy for the breach. A peace
agreement which settles an internal armed
conflict cannot be ascribed the same status as
one which settles an international armed
conflict which, essentially, must be between two
or more warring States. The Lom Agreement
cannot be characterised as an international
instrument. x
x
x
(Emphasis,
italics and
underscoring supplied)

Similarly, that the MOA-AD would have been signed by representatives of

States and international organizations not parties to the Agreement would
not have sufficed to vest in it a binding character under international law.

In another vein, concern has been raised that the MOA-AD would
amount to a unilateral declaration of the Philippine State, binding under
international law, that it would comply with all the stipulations stated therein,
with the result that it would have to amend its Constitution accordingly
regardless of the true will of the people. Cited as authority for this view
is Australia v. France,[181] also known as the Nuclear Tests Case, decided by
the International Court of Justice (ICJ).

In the Nuclear Tests Case, Australia challenged before the ICJ the
legality of Frances nuclear tests in the South Pacific. France refused to
appear in the case, but public statements from its President, and similar
statements from other French officials including its Minister of Defence, that
its 1974 series of atmospheric tests would be its last, persuaded the ICJ to
dismiss the case.[182] Those statements, the ICJ held, amounted to a legal
undertaking addressed to the international community, which required no
acceptance from other States for it to become effective.

Essential to the ICJ ruling is its finding that the French

government intended to be bound to the international community in issuing
its public statements, viz:
43. It is well recognized that declarations made by way
of unilateral acts, concerning legal or factual
situations, may have the effect of creating legal
obligations. Declarations of this kind may be, and
often are, very specific. When it is the intention of
the State making the declaration that it should

become bound according to its terms, that

intention confers on the declaration the
character of a legal undertaking, the State being
thenceforth legally required to follow a course
of conduct consistent with the declaration. An
undertaking of this kind, if given publicly, and with
an intent to be bound, even though not made within
the context of international negotiations, is binding.
In these circumstances, nothing in the nature of a
quid pro quo nor any subsequent acceptance of the
declaration, nor even any reply or reaction from
other States, is required for the declaration to take
effect, since such a requirement would be
inconsistent with the strictly unilateral nature of the
juridical act by which the pronouncement by the
State was made.
44. Of course, not all unilateral acts imply obligation;
but a State may choose to take up a certain
position in relation to a particular matter
with the intention of being boundthe intention is
to be ascertained by interpretation of the
act. When States make statements by which their
freedom of action is to be limited, a restrictive
interpretation is called for.

addressed to the international community as a

whole, and the Court holds that they constitute
an undertaking possessing legal effect. The
Court considers *270 that the President of the
Republic, in deciding upon the effective cessation
of atmospheric tests, gave an undertaking to the
international community to which his words were
addressed. x x x (Emphasis and underscoring
supplied)

As gathered from the above-quoted ruling of the ICJ, public statements of a

state representative may be construed as a unilateral declaration only when
the following conditions are present: the statements were clearly addressed
to the international community, the state intended to be bound to that
community by its statements, and that not to give legal effect to those
statements

would

intercourse. Plainly,

be

detrimental

unilateral

to

the

declarations

security
arise

of

only

international
in

peculiar

circumstances.

xxxx
51. In announcing that the 1974 series of atmospheric
tests would be the last, the French Government
conveyed to the world at large, including the
Applicant, its intention effectively to terminate
these tests. It was bound to assume that other
States might take note of these statements and
rely on their being effective. The validity of
these statements and their legal consequences
must be considered within the general
framework of the security of international
intercourse, and the confidence and trust which
are so essential in the relations among States.It is
from the actual substance of these statements,
and from the circumstances attending their
making, that the legal implications of the
unilateral act must be deduced. The objects of
these statements are clear and they were

The limited applicability of the Nuclear Tests Case ruling was recognized in a
later case decided by the ICJ entitled Burkina Faso v. Mali,[183] also known as
the Case Concerning the Frontier Dispute. The public declaration subject of
that case was a statement made by the President of Mali, in an interview by
a foreign press agency, that Mali would abide by the decision to be issued by
a commission of the Organization of African Unity on a frontier dispute then
pending between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of
Malis President was not a unilateral act with legal implications. It clarified

that its ruling in the Nuclear Tests case rested on the peculiar circumstances

to the international community.The Philippine panel did not draft the same

surrounding the French declaration subject thereof, to wit:

with the clear intention of being bound thereby to the international

40. In order to assess the intentions of the author of a

unilateral act, account must be taken of all the
factual circumstances in which the act occurred.
For example, in the Nuclear Tests cases, the
Court took the view that since the applicant
States were not the only ones concerned at the
possible continuance of atmospheric testing by
the French Government, that Government's
unilateral declarations had conveyed to the
world at large, including the Applicant, its
intention effectively to terminate these
tests (I.C.J. Reports 1974, p. 269, para. 51; p. 474,
para. 53). In the particular circumstances of
those cases, the French Government could not
express an intention to be bound otherwise
than by unilateral declarations. It is difficult to
see how it could have accepted the terms of a
negotiated solution with each of the applicants
without thereby jeopardizing its contention that
its conduct was lawful. The circumstances of
the present case are radically different. Here,
there was nothing to hinder the Parties from
manifesting an intention to accept the binding
character
of
the
conclusions
of
the
Organization of African Unity Mediation
Commission by the normal method: a formal
agreement on the basis of reciprocity. Since no
agreement of this kind was concluded between the
Parties, the Chamber finds that there are no
grounds to interpret the declaration made by Mali's
head of State on 11 April 1975 as a unilateral act
with legal implications in regard to the present case.
(Emphasis and underscoring supplied)

community as a whole or to any State, but only to the MILF. While there
were States and international organizations involved, one way or another, in
the negotiation and projected signing of the MOA-AD, they participated
merely as witnesses or, in the case of Malaysia, as facilitator. As held in the
Lom Accord case, the mere fact that in addition to the parties to the conflict,
the peace settlement is signed by representatives of states and international
organizations does not mean that the agreement is internationalized so as to
create obligations in international law.

Since the commitments in the MOA-AD were not addressed to

States, not to give legal effect to such commitments would not be
detrimental to the security of international intercourse to the trust and
confidence essential in the relations among States.

In one important respect, the circumstances surrounding the MOAAD are closer to that of Burkina Faso wherein, as already discussed, the
Mali Presidents statement was not held to be a binding unilateral declaration
by the ICJ. As in that case, there was also nothing to hinder the Philippine
panel, had it really been its intention to be bound to other States, to manifest
that intention by formal agreement. Here, that formal agreement would have
come about by the inclusion in the MOA-AD of a clear commitment to be

Assessing the MOA-AD in light of the above criteria, it would not

legally bound to the international community, not just the MILF, and by an

have amounted to a unilateral declaration on the part of the Philippine State

equally clear indication that the signatures of the participating statesrepresentatives

would

constitute

an

acceptance

of

that

commitment. Entering into such a formal agreement would not have resulted

inconsistent with what, in international law, is known as Jus Cogens.

in a loss of face for the Philippine government before the international

[184]

Respondents, however, may not preempt it in that decision.

community, which was one of the difficulties that prevented the French
Government

from

entering

into

formal

agreement

with

other

countries. That the Philippine panel did not enter into such a formal

SUMMARY

agreement suggests that it had no intention to be bound to the international

community. On that

ground, the MOA-AD may not be considered

unilateral declaration under international law.

The petitions are ripe for adjudication. The failure of respondents to

consult the local government units or communities affected constitutes a
departure by respondents from their mandate under E.O. No. 3. Moreover,
respondents exceeded their authority by the mere act of guaranteeing

The MOA-AD not being a document that can bind the Philippines under

amendments to the Constitution. Any alleged violation of the Constitution by

international law notwithstanding, respondents almost consummated act

any branch of government is a proper matter for judicial review.

of guaranteeing amendmentsto the legal framework is, by itself,

sufficient to constitute grave abuse of discretion. The grave abuse lies

As the petitions involve constitutional issues which are of paramount public

not in the fact that they considered, as a solution to the Moro Problem, the

interest or of transcendental importance, the Court grants the petitioners,

creation of a state within a state, but in their brazen willingness

petitioners-in-intervention and intervening respondents the requisite locus

to guarantee that Congress and the sovereign Filipino people would

standi in keeping with the liberal stance adopted in David v. Macapagal-

give their imprimatur to their solution. Upholding such an act would

Arroyo.

amount to authorizing a usurpation of the constituent powers vested only in

Congress, a Constitutional Convention, or the people themselves through

Contrary to the assertion of respondents that the non-signing of the MOA-AD

the process of initiative, for the only way that the Executive can ensure the

and the eventual dissolution of the GRP Peace Panel mooted the present

outcome of the amendment process is through an undue influence or

petitions, the Court finds that the present petitions provide an exception to

interference with that process.

the moot and academic principle in view of (a) the grave violation of the
Constitution involved; (b) the exceptional character of the situation and

The sovereign people may, if it so desired, go to the extent of giving

up a portion of its own territory to the Moros for the sake of peace, for it can
change the Constitution in any it wants, so long as the change is not

paramount public interest; (c) the need to formulate controlling principles to

guide the bench, the bar, and the public; and (d) the fact that the case is

information

contemplates

steps

and

negotiations

leading

to

the

capable of repetition yet evading review.

consummation of the contract, jurisprudence finds no distinction as to the

executory nature or commercial character of the agreement.

The MOA-AD is a significant part of a series of agreements necessary to

An essential element of these twin freedoms is to keep a continuing

carry out the GRP-MILF Tripoli Agreement on Peace signed by the

dialogue or process of communication between the government and the

government and the MILF back in June 2001. Hence, the present MOA-AD

people. Corollary to these twin rights is the design for feedback

can be renegotiated or another one drawn up that could contain similar or

mechanisms. The right to public consultation was envisioned to be a species

significantly dissimilar provisions compared to the original.

of these public rights.

The Court, however, finds that the prayers for mandamus have been
rendered moot in view of the respondents action in providing the Court and

At least three pertinent laws animate these constitutional imperatives and

the petitioners with the official copy of the final draft of the MOA-AD and its

justify the exercise of the peoples right to be consulted on relevant matters

annexes.

relating to the peace agenda.

The peoples right to information on matters of public concern under Sec. 7,

One, E.O. No. 3 itself is replete with mechanics for continuing consultations

Article III of the Constitution is in splendid symmetry with the state policy of

on both national and local levels and for a principal forum for consensus-

full public disclosure of all its transactions involving public interest under

building. In fact, it is the duty of the Presidential Adviser on the Peace

Sec. 28, Article II of the Constitution. The right to information guarantees the

Process to conduct regular dialogues to seek relevant information,

right of the people to demand information, while Section 28 recognizes the

comments, advice, and recommendations from peace partners and

duty of officialdom to give information even if nobody demands. The

concerned sectors of society.

complete and effective exercise of the right to information necessitates that

its complementary provision on public disclosure derive the same self-

Two, Republic Act No. 7160 or the Local Government Code of 1991 requires

executory nature, subject only to reasonable safeguards or limitations as

all national offices to conduct consultations before any project or program

may be provided by law.

critical to the environment and human ecology including those that may call
for the eviction of a particular group of people residing in such locality, is

The contents of the MOA-AD is a matter of paramount public concern

implemented

therein. The

MOA-AD

is

one

peculiar

program

that

involving public interest in the highest order. In declaring that the right to

unequivocally and unilaterally vests ownership of a vast territory to the

Bangsamoro people, which could pervasively and drastically result to the

thereof. It illustrates a gross evasion of positive duty and a virtual refusal to

diaspora or displacement of a great number of inhabitants from their total

perform the duty enjoined.

environment.
The MOA-AD cannot be reconciled with the present Constitution and
Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997

laws. Not only its specific provisions but the very concept underlying them,

provides for clear-cut procedure for the recognition and delineation of

namely, the associative relationship envisioned between the GRP and the

ancestral domain, which entails, among other things, the observance of the

BJE, are unconstitutional, for the concept presupposes that the associated

free

entity is a state and implies that the same is on its way to independence.

and

prior

informed

consent

of

the

Indigenous

Cultural

Communities/Indigenous Peoples. Notably, the statute does not grant the

Executive Department or any government agency the power to delineate

While there is a clause in the MOA-AD stating that the provisions thereof

and recognize an ancestral domain claim by mere agreement or

inconsistent with the present legal framework will not be effective until that

compromise.

framework is amended, the same does not cure its defect. The inclusion of
provisions in the MOA-AD establishing an associative relationship between

The invocation of the doctrine of executive privilege as a defense to the

the BJE and the Central Government is, itself, a violation of the

general right to information or the specific right to consultation is

Memorandum of Instructions From The President dated March 1, 2001,

untenable. The various explicit legal provisions fly in the face of executive

addressed to the government peace panel. Moreover, as the clause is

secrecy. In any event, respondents effectively waived such defense after it

worded, it virtually guarantees that the necessary amendments to the

unconditionally disclosed the official copies of the final draft of the MOA-AD,

Constitution and the laws will eventually be put in place. Neither the GRP

for judicial compliance and public scrutiny.

Peace Panel nor the President herself is authorized to make such a

guarantee. Upholding such an act would amount to authorizing a usurpation

IN SUM, the Presidential Adviser on the Peace Process committed grave

of the constituent powers vested only in Congress, a Constitutional

abuse of discretion when he failed to carry out the pertinent consultation

Convention, or the people themselves through the process of initiative, for

process, as mandated by E.O. No. 3, Republic Act No. 7160, and Republic

the only way that the Executive can ensure the outcome of the amendment

Act No. 8371. The furtive process by which the MOA-AD was designed and

process is through an undue influence or interference with that process.

crafted runs contrary to and in excess of the legal authority, and amounts to
a whimsical, capricious, oppressive, arbitrary and despotic exercise

While the MOA-AD would not amount to an international agreement

or unilateral declaration binding on the Philippines under international law,
respondents act of guaranteeing amendments is, by itself, already a
constitutional violation that renders the MOA-AD fatally defective.

WHEREFORE, respondents motion to dismiss is DENIED. The

main and intervening petitions are GIVEN DUE COURSE and hereby
GRANTED.

The Memorandum of Agreement on the Ancestral Domain Aspect of

the GRP-MILF Tripoli Agreement on Peace of 2001 is declared CONTRARY
TO LAW AND THE CONSTITUTION.

SO ORDERED.

WHOSE RIGHTS ARE SIMILARLY AFFECTED, Petitioners,v. SECRETARY

ANGELO REYES, IN HIS CAPACITY AS SECRETARY OF THE
DEPARTMENT OF ENERGY (DOE), JOSE L. ATIENZA, IN HIS CAPACITY
AS SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES (DENR), LEONARDO R. SIBBALUCA, IN HIS
CAPACITY AS DENR REGIONAL DIRECTOR-REGION VII AND AS
CHAIRPERSON OF THE TAON STRAIT PROTECTED SEASCAPE
MANAGEMENT BOARD, ALAN ARRANGUEZ, IN HIS CAPACITY AS
DIRECTOR ENVIRONMENTAL MANAGEMENT BUREAU-REGION VII,
DOE REGIONAL DIRECTOR FOR REGION VIII1 ANTONIO LABIOS,
JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), AS
REPRESENTED BY ITS PHILIPPINE AGENT, SUPPLY OILFIELD
SERVICES, INC.,Respondent.
DECISION
G.R. No. 180771, April 21, 2015
LEONARDO-DE CASTRO, J.:
RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPE
TANON STRAIT, E.G., TOOTHED WHALES, DOLPHINS, PORPOISES,
AND OTHER CETACEAN SPECIES, JOINED IN AND REPRESENTED
HEREIN BY HUMAN BEINGS GLORIA ESTENZO RAMOS AND ROSELIZA EISMA-OSORIO, IN THEIR CAPACITY AS LEGAL GUARDIANS OF
THE LESSER LIFE-FORMS AND AS RESPONSIBLE STEWARDS OF
GOD'S CREATIONS, Petitioners, v. SECRETARY ANGELO REYES, IN HIS
CAPACITY AS SECRETARY OF THE DEPARTMENT OF ENERGY (DOE),
SECRETARY JOSE L. ATIENZA, IN HIS CAPACITY AS SECRETARY OF
THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
(DENR), LEONARDO R. SIBBALUCA, DENR REGIONAL DIRECTORREGION VII AND IN HIS CAPACITY AS CHAIRPERSON OF THE TANON
STRAIT PROTECTED SEASCAPE MANAGEMENT BOARD, BUREAU OF
FISHERIES AND AQUATIC RESOURCES (BFAR), DIRECTOR MALCOLM
I. SARMIENTO, JR., BFAR REGIONAL DIRECTOR FOR REGION VII
ANDRES M. BOJOS, JAPAN PETROLEUM EXPLORATION CO., LTD.
(JAPEX), AS REPRESENTED BY ITS PHILIPPINE AGENT, SUPPLY
OILFIELD
SERVICES,
INC., Respondents.
G.R.

No.

181527

CENTRAL VISAYAS FISHERFOLK DEVELOPMENT CENTER (FIDEC),

CERILO D. ENGARCIAL, RAMON YANONG, FRANCISCO LABID, IN
THEIR PERSONAL CAPACITY AND AS REPRESENTATIVES OF THE
SUBSISTENCE FISHERFOLKS OF THE MUNICIPALITIES OF
ALOGUINSAN AND PINAMUNGAJAN, CEBU, AND THEIR FAMILIES,
AND THE PRESENT AND FUTURE GENERATIONS OF FILIPINOS

Before Us are two consolidated Petitions filed under Rule 65 of the 1997
Rules of Court, concerningService Contract No. 46 (SC-46), which allowed
the exploration, development, and exploitation of petroleum resources within
Taon Strait, a narrow passage of water situated between the islands of
Negros
and
Cebu.2
The Petition docketed as G.R. No. 180771 is an original Petition
for Certiorari, Mandamus, and Injunction, which seeks to enjoin respondents
from implementing SC-46 and to have it nullified for willful and gross
violation of the 1987 Constitution and certain international and municipal
laws.3
Likewise, the Petition docketed as G.R. No. 181527 is an original Petition
for Certiorari, Prohibition, and Mandamus, which seeks to nullify the
Environmental Compliance Certificate (ECC) issued by the Environmental
Management Bureau (EMB) of the Department of Environment and Natural
Resources (DENR), Region VII in connection with SC-46; to prohibit
respondents from implementing SC-46; and to compel public respondents to
provide petitioners access to the pertinent documents involving the Taon
Strait Oil Exploration Project.4
ANTECEDENT FACTS AND PROCEEDINGS
Petitioners in G.R. No. 180771, collectively referred to as the "Resident
Marine Mammals" in the petition, are the toothed whales, dolphins,
porpoises, and other cetacean species, which inhabit the waters in and

around the Taon Strait. They are joined by Gloria Estenzo Ramos (Ramos)
and Rose-Liza Eisma-Osorio (Eisma-Osorio) as their legal guardians and as
friends (to be collectively known as "the Stewards") who allegedly empathize
with, and seek the protection of, the aforementioned marine species. Also
impleaded as an unwilling co-petitioner is former President Gloria
Macapagal-Arroyo, for her express declaration and undertaking in the
ASEAN Charter to protect the Taon Strait, among others. 5
Petitioners in G.R. No. 181527 are the Central Visayas Fisherfolk
Development Center (FIDEC), a non-stock, non-profit, non-governmental
organization, established for the welfare of the marginal fisherfolk in Region
VII; and Cerilo D. Engarcial (Engarcial), Ramon Yanong (Yanong) and
Francisco Labid (Labid), in their personal capacities and as representatives
of the subsistence fisherfolk of the municipalities of Aloguinsan and
Pinamungajan,
Cebu.
Named as respondents in both petitions are the late Angelo T. Reyes, as
then Secretary of the Department of Energy (DOE); Jose L. Atienza, as then
Secretary of the DENR; Leonardo R. Sibbaluca, as then DENR-Regional
Director for Region VII and Chairman of the Taon Strait Protected
Seascape Management Board; Japan Petroleum Exploration Co., Ltd.
(JAPEX), a company organized and existing under the laws of Japan with a
Philippine branch office; and Supply Oilfield Services, Inc. (SOS), as the
alleged
Philippine
agent
of
JAPEX.
In G.R. No. 181527, the following were impleaded as additional public
respondents: Alan C. Arranguez (Arranguez) and Antonio Labios (Labios), in
their capacities as then Director of the EMB, Region VII and then Regional
Director
of
the
DOE,
Region
VII,
respectively.6
On June 13, 2002, the Government of the Philippines, acting through the
DOE, entered into a Geophysical Survey and Exploration Contract-102
(GSEC-102) with JAPEX. This contract involved geological and geophysical
studies of the Taon Strait. The studies included surface geology, sample
analysis, and reprocessing of seismic and magnetic data. JAPEX, assisted
by DOE, also conducted geophysical and satellite surveys, as well as oil and
gas
sampling
in
Taon
Strait.7
On December 21, 2004, DOE and JAPEX formally converted GSEC-102 into
SC-46 for the exploration, development, and production of petroleum
resources in a block covering approximately 2,850 square kilometers
offshore
the
Taon
Strait.8
From May 9 to 18, 2005, JAPEX conducted seismic surveys in and around
the Taon Strait. A multi-channel sub-bottom profiling covering approximately

751 kilometers was also done to determine the area's underwater

composition.9
JAPEX committed to drill one exploration well during the second sub-phase
of the project. Since the well was to be drilled in the marine waters of
Aloguinsan and Pinamungajan, where the Taon Strait was declared a
protected seascape in 1988,10 JAPEX agreed to comply with the
Environmental Impact Assessment requirements pursuant to Presidential
Decree No. 1586, entitled "Establishing An Environmental Impact Statement
System, Including Other Environmental Management Related Measures And
For
Other
Purposes."11
On January 31, 2007, the Protected Area Management Board12 of the Taon
Strait (PAMB-Taon Strait) issued Resolution No. 2007-001,13 wherein it
adopted the Initial Environmental Examination (IEE) commissioned by
JAPEX, and favorably recommended the approval of JAPEX's application for
an
ECC.
On March 6, 2007, the EMB of DENR Region VII granted an ECC to the
DOE and JAPEX for the offshore oil and gas exploration project in Taon
Strait.14 Months later, on November 16, 2007, JAPEX began to drill an
exploratory well, with a depth of 3,150 meters, near Pinamungajan town in
the western Cebu Province.15 This drilling lasted until February 8, 2008.16
It was in view of the foregoing state of affairs that petitioners applied to this
Court for redress, via two separate original petitions both dated December
17, 2007, wherein they commonly seek that respondents be enjoined from
implementing SC-46 for, among others, violation of the 1987 Constitution.
On March 31, 2008, SOS filed a Motion to Strike17 its name as a respondent
on the ground that it is not the Philippine agent of JAPEX. In support of its
motion, it submitted the branch office application of JAPEX, 18 wherein the
latter's resident agent was clearly identified. SOS claimed that it had acted
as a mere logistics contractor for JAPEX in its oil and gas exploration
activities
in
the
Philippines.
Petitioners Resident Marine Mammals and Stewards opposed SOS's motion
on the ground that it was premature, it was pro-forma, and it was patently
dilatory. They claimed that SOS admitted that "it is in law a (sic) privy to
JAPEX" since it did the drilling and other exploration activities in Taon Strait
under the instructions of its principal, JAPEX. They argued that it would be
premature to drop SOS as a party as JAPEX had not yet been joined in the
case; and that it was "convenient" for SOS to ask the Court to simply drop its
name from the parties when what it should have done was to either notify or
ask JAPEX to join it in its motion to enable proper substitution. At this

juncture, petitioners Resident Marine Mammals and Stewards also asked

the Court to implead JAPEX Philippines as a corespondent or as a substitute
for
its
parent
company,
JAPEX.19
On April 8, 2008, the Court resolved to consolidate G.R. No. 180771 and
G.R.
No.
181527.
On May 26, 2008, the FIDEC manifested20 that they were adopting in
toto the Opposition to Strike with Motion to Implead filed by petitioners
Resident Marine Mammals and Stewards in G.R. No. 180771.
On June 19, 2008, public respondents filed their Manifestation21 that they
were not objecting to SOS's Motion to Strike as it was not JAPEX's resident
agent. JAPEX during all this time, did not file any comment at all.
Thus, on February 7, 2012, this Court, in an effort to ensure that all the
parties were given ample chance and opportunity to answer the issues
herein, issued a Resolution directing the Court's process servicing unit to
again serve the parties with a copy of the September 23, 2008 Resolution of
the Court, which gave due course to the petitions in G.R. Nos. 180771 and
181527, and which required the parties to submit their respective
memoranda.
The
February
7,
2012
Resolution22 reads
as
follows:chanroblesvirtuallawlibrary
G.R. No. 180771 (Resident Marine Mammals of the Protected Seascape
Taon Strait,e.g., Toothed Whales, Dolphins, Porpoises and Other Cetacean
Species, et al. vs. Hon. Angelo Reyes, in his capacity as Secretary of the
Department of Energy, et al.) andG.R. No. 181527 (Central Visayas
Fisherfolk Development Center, et al. vs. Hon. Angelo Reyes, et al.). - The
Court Resolved to direct the Process Servicing Unit to RE-SEND the
resolution dated September 23, 2008 to the following parties and counsel,
together with this resolution:chanroblesvirtuallawlibrary
Atty. Aristeo th
20 Floor Pearlbank Centre
O. Cario
Counsel
for
Respondent 146 Valero Street
Supply
Oilfield
Salcedo Village, Makati City
Services, Inc.
JAPEX
Philippines
Ltd.

20th Floor Pearlbank Centre

146 Valero Street
Salcedo Village, Makati City

JAPEX
Philippines 19th Floor Pearlbank Centre
Ltd.
c/o Atty. Maria
146 Valero Street
Farah Z.G.
NicolasSalcedo Village, Makati City
Suchianco
Atty.
Maria
Suite 2404 Discovery Centre
Farah Z.G.
Nicolas25 ADB Avenue
Suchianco
Resident Agent
Ortigas Center, Pasig City
of JAPEX
Philippines Ltd.
This Resolution was personally served to the above parties, at the above
addresses on February 23, 2012. On March 20, 2012, JAPEX Philippines,
Ltd. (JAPEX PH), by way of special appearance, filed a Motion to Admit 23 its
Motion for Clarification,24 wherein JAPEX PH requested to be clarified as to
whether or not it should deem the February 7, 2012 Resolution as this
Court's Order of its inclusion in the case, as it has not been impleaded. It
also alleged that JAPEX PH had already stopped exploration activities in the
Taon Strait way back in 2008, rendering this case moot.
On March 22, 2012, JAPEX PH, also by special appearance, filed a Motion
for Extension of Time25 to file its Memorandum. It stated that since it received
the February 7, 2012 Resolution on February 23, 2012, it had until March 22,
2012 to file its Memorandum. JAPEX PH then asked for an additional thirty
days, supposedly to give this Court some time to consider its Motion for
Clarification.
On April 24, 2012, this Court issued a Resolution 26 granting JAPEX PH's
Motion to Admit its Motion for Clarification. This Court, addressing JAPEX
PH's Motion for Clarification, held:chanroblesvirtuallawlibrary
With regard to its Motion for Clarification (By Special Appearance) dated
March 19, 2012, this Court considers JAPEX Philippines. Ltd. as a real
party-in-interest in these cases. Under Section 2, Rule 3 of the 1997 Rules
of Court, a real party-in-interest is the party who stands to be benefited or
injured by the judgment in the suit, or the party entitled to the avails of the
suit. Contrary to JAPEX Philippines, Ltd.'s allegation that it is a completely
distinct corporation, which should not be confused with JAPEX Company,
Ltd., JAPEX Philippines, Ltd. is a mere branch office, established by JAPEX
Company, Ltd. for the purpose of carrying out the latter's business
transactions here in the Philippines. Thus, JAPEX Philippines, Ltd., has no

separate personality from its mother foreign corporation, the party impleaded
in
this
case.
Moreover, Section 128 of the Corporation Code provides for the
responsibilities and duties of a resident agent of a foreign
corporation:chanroblesvirtuallawlibrary
SECTION 128. Resident agent; service of process. The Securities and
Exchange Commission shall require as a condition precedent to the
issuance of the license to transact business in the Philippines by any foreign
corporation that such corporation file with the Securities and Exchange
Commission a written power of attorney designating some person who must
be a resident of the Philippines, on whom any summons and other legal
processes may be served in all actions or other legal proceedings against
such corporation, and consenting that service upon such resident agent shall
be admitted and held as valid as if served upon the duly authorized officers
of the foreign corporation at its home office. Any such foreign corporation
shall likewise execute and file with the Securities and Exchange Commission
an agreement or stipulation, executed by the proper authorities of said
corporation,
in
form
and
substance
as
follows:
"The (name of foreign corporation) does hereby stipulate and agree, in
consideration of its being granted by the Securities and Exchange
Commission a license to transact business in the Philippines, that if at any
time said corporation shall cease to transact business in the Philippines, or
shall be without any resident agent in the Philippines on whom any
summons or other legal processes may be served, then in any action or
proceeding arising out of any business or transaction which occurred in the
Philippines, service of any summons or other legal process may be made
upon the Securities and Exchange Commission and that such service shall
have the same force and effect as if made upon the duly-authorized officers
of
the
corporation
at
its
home
office."
Whenever such service of summons or other process shall be made upon
the Securities and Exchange Commission, the Commission shall, within ten
(10) days thereafter, transmit by mail a copy of such summons or other legal
process to the corporation at its home or principal office. The sending of
such copy by the Commission shall be a necessary part of and shall
complete such service. All expenses incurred by the Commission for such
service shall be paid in advance by the party at whose instance the service
is
made.
In case of a change of address of the resident agent, it shall be his or its
duty to immediately notify in writing the Securities and Exchange
Commission of the new address.

It is clear from the foregoing provision that the function of a resident agent is
to receive summons or legal processes that may be served in all actions or
other legal proceedings against the foreign corporation. These cases have
been prosecuted in the name of JAPEX Company, Ltd., and JAPEX
Philippines Ltd., as its branch office and resident agent, had been receiving
the various resolutions from this Court, as evidenced by Registry Return
Cards signed by its representatives.
And in the interest of justice, this Court resolved to grant JAPEX PH's motion
for extension of time to file its memorandum, and was given until April 21,
2012, as prayed for, within which to comply with the submission. 27
Without filing its Memorandum, JAPEX PH, on May 14, 2012, filed a motion,
asking this Court for an additional thirty days to file its Memorandum, to be
counted from May 8, 2012. It justified its request by claiming that this Court's
April 24, 2012 Resolution was issued past its requested deadline for filing,
which
was
on
April
21,
2012. 28
On June 19, 2012, this Court denied JAPEX PH's second request for
additional time to file its Memorandum and dispensed with such filing.
Since petitioners had already filed their respective memoranda,29 and public
respondents had earlier filed a Manifestation 30 that they were adopting their
Comment dated March 31, 2008 as their memorandum, this Court submitted
the case for decision.chanRoblesvirtualLawlibrary
Petitioners' Allegations
Protesting the adverse ecological impact of JAPEX's oil exploration activities
in the Taon Strait, petitioners Resident Marine Mammals and Stewards
aver that a study made after the seismic survey showed that the fish catch
was reduced drastically by 50 to 70 percent. They claim that before the
seismic survey, the average harvest per day would be from 15 to 20 kilos;
but after the activity, the fisherfolk could only catch an average of 1 to 2 kilos
a day. They attribute this "reduced fish catch" to the destruction of the
"payao" also known as the "fish aggregating device" or "artificial
reef."31Petitioners Resident Marine Mammals and Stewards also impute the
incidences of "fish kill"32observed by some of the local fisherfolk to the
seismic survey. And they further allege that the ECC obtained by private
respondent JAPEX is invalid because public consultations and discussions
with the affected stakeholders, a pre-requisite to the issuance of the ECC,
were
not
held
prior
to
the
ECC's
issuance.
In its separate petition, petitioner FIDEC confirms petitioners Resident
Marine Mammals and Stewards' allegations of reduced fish catch and lack of

public consultations or discussions with the fisherfolk and other stakeholders

prior to the issuance of the ECC. Moreover, it alleges that during the seismic
surveys and drilling, it was barred from entering and fishing within a 7kilometer radius from the point where the oilrig was located, an area greater
than the 1.5-kilometer radius "exclusion zone" stated in the IEE. 33 It also
agrees in the allegation that public respondents DENR and EMB abused
their discretion when they issued an ECC to public respondent DOE and
private respondent JAPEX without ensuring the strict compliance with the
procedural and substantive requirements under the Environmental Impact
Assessment system, the Fisheries Code, and their implementing rules and
regulations.34 It further claims that despite several requests for copies of all
the documents pertaining to the project in Taflon Strait, only copies of the
PAMB-Taon Strait Resolution and the ECC were given to the fisherfolk.35
Public Respondents' Counter-Allegations
Public respondents, through the Solicitor General, contend that petitioners
Resident Marine Mammals and Stewards have no legal standing to file the
present petition; that SC-46 does not violate the 1987 Constitution and the
various laws cited in the petitions; that the ECC was issued in accordance
with existing laws and regulations; that public respondents may not be
compelled by mandamus to furnish petitioners copies of all documents
relating to SC-46; and that all the petitioners failed to show that they are
entitled to injunctive relief. They further contend that the issues raised in
these petitions have been rendered moot and academic by the fact that SC46 had been mutually terminated by the parties thereto effective June 21,
2008.36
ISSUES

MARINE
WATERS
OF
THE
TANON
STRAIT
PROTECTED SEASCAPE IS INCONSISTENT WITH THE
PHILIPPINE COMMITMENTS TO INTERNATIONAL
ENVIRONMENTAL LAWS AND INSTRUMENTS; AND
IV.

Meanwhile, in G.R. No. 181527, petitioner FIDEC presented the following

issues for our consideration:chanroblesvirtuallawlibrary
I.

WHETHER OR NOT SERVICE CONTRACT NO. 46

EXECUTED BETWEEN RESPONDENTS DOE AND
JAPEX SHOULD BE NULLIFIED AND SET ASIDE FOR
BEING IN DIRECT VIOLATION OF SPECIFIC
PROVISIONS
OF
THE
1987
PHILIPPINE
CONSTITUTION AND APPLICABLE LAWS;

II.

WHETHER
OR
NOT
THE
OFF-SHORE
OIL
EXPLORATION CONTEMPLATED UNDER SERVICE
CONTRACT NO. 46 IS LEGALLY PERMISSIBLE
WITHOUT A LAW BEING DULY PASSED EXPRESSLY
FOR THE PURPOSE;

III.

WHETHER OR NOT THE OIL EXPLORATION BEING

CONDUCTED
WITHIN
THE
TANON
STRAIT
PROTECTED SEASCAPE VIOLATES THE RIGHTS AND
LEGAL PROTECTION GRANTED TO PETITIONERS
UNDER THE CONSTITUTION AND APPLICABLE LAWS.

IV.

WHETHER OR NOT THE ISSUANCE OF THE

ENVIRONMENTAL COMPLIANCE CERTIFICATE (ECC)
FOR SUCH AN ENVIRONMENTALLY CRITICAL
PROJECT INSIDE AN ENVIRONMENTALLY CRITICAL
AREA SUCH AS THE TANON STRAIT PROTECTED
SEASCAPE CONFORMED TO LAW AND EXISTING
RULES AND REGULATIONS ON THE MATTER.

The following are the issues posited by petitioners Resident Marine

Mammals and Stewards in G.R. No. 180771:chanroblesvirtuallawlibrary
I.

WHETHER OR NOT PETITIONERS HAVE LOCUS

STANDI TO FILE THE INSTANT PETITION;

II.

WHETHER OR NOT SERVICE CONTRACT NO. 46 IS

VIOLAT[IVE] OF THE 1987 PHILIPPINE CONSTITUTION
AND STATUTES;

III.

WHETHER OR NOT THE ON-GOING EXPLORATION

AND PROPOSED EXPLOITATION FOR OIL AND
NATURAL GAS AT, AROUND, AND UNDERNEATH THE

WHETHER OR NOT THE ISSUANCE OF THE

ENVIRONMENTAL COMPLIANCE CERTIFICATE (ECC)
IN ENVIRONMENTALLY CRITICAL AREAS AND
HABITATS OF MARINE WILDLIFE AND ENDANGERED
SPECIES IS LEGAL AND PROPER.37

V.

WHETHER OR NOT THE RESPONDENTS MAY BE

COMPELLED
BY
MANDAMUS
TO
FURNISH
PETITIONERS WITH COPIES OF THE DOCUMENTS
PERTAINING
TO
THE
TANON
STRAIT
OIL
EXPLORATION PROJECT.38

In these consolidated petitions, this Court has determined that the various
issues raised by the petitioners may be condensed into two primary issues:
I.

Procedural Issue: Locus Standi of the Resident Marine Mammals

and Stewards, petitioners in G.R. No. 180771; and

II.

Main Issue: Legality of Sendee Contract No. 46.

DISCUSSION
At the outset, this Court makes clear that the '"moot and academic principle'
is not a magical formula that can automatically dissuade the courts in
resolving a case." Courts have decided cases otherwise moot and academic
under
the
following
exceptions:
1)

There

is

grave

violation

of

the

Constitution;

2) The exceptional character of the situation and the paramount public

interest
is
involved;
3) The constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public; and
4)

The

case

is

capable

of

repetition

yet

evading

review.39

In this case, despite the termination of SC-46, this Court deems it necessary
to resolve these consolidated petitions as almost all of the foregoing
exceptions are present in this case. Both petitioners allege that SC-46 is
violative of the Constitution, the environmental and livelihood issues raised
undoubtedly affect the public's interest, and the respondents' contested
actions are capable of repetition.chanRoblesvirtualLawlibrary
Procedural

Issues

Locus Standi of Petitioners Resident Marine Mammals and Stewards

The Resident Marine Mammals, through the Stewards, "claim" that they

have the legal standing to file this action since they stand to be benefited or
injured by the judgment in this suit.40 Citing Oposa v. Factoran, Jr.,41 they
also assert their right to sue for the faithful performance of international and
municipal environmental laws created in their favor and for their benefit. In
this regard, they propound that they have the right to demand that they be
accorded the benefits granted to them in multilateral international
instruments that the Philippine Government had signed, under the concept
of
stipulation pour
autrui.42
For their part, the Stewards contend that there should be no question of their
right to represent the Resident Marine Mammals as they have stakes in the
case as forerunners of a campaign to build awareness among the affected
residents of Taon Strait and as stewards of the environment since the
primary steward, the Government, had failed in its duty to protect the
environment
pursuant
to
the
public
trust
doctrine.43
Petitioners Resident Marine Mammals and Stewards also aver that this
Court may lower the benchmark in locus standi as an exercise of epistolary
jurisdiction.44
In opposition, public respondents argue that the Resident Marine Mammals
have no standing because Section 1, Rule 3 of the Rules of Court requires
parties
to
an
action
to
be
either
natural
or
juridical
persons, viz.:chanroblesvirtuallawlibrary
Section 1. Who may be parties; plaintiff and defendant. - Only natural or
juridical persons, or entities authorized by law may be parties in a civil
action. The term "plaintiff may refer to the claiming party, the counterclaimant, the cross-claimant, or the third (fourth, etc.)-party plaintiff. The term
"defendant" may refer to the original defending party, the defendant in a
counterclaim, the cross-defendant, or the third (fourth, etc.)-party defendant.
The public respondents also contest the applicability of Oposa, pointing out
that the petitioners therein were all natural persons, albeit some of them
were
still
unborn.45
As regards the Stewards, the public respondents likewise challenge their
claim of legal standing on the ground that they are representing animals,
which cannot be parties to an action. Moreover, the public respondents
argue that the Stewards are not the real parties-in-interest for their failure to
show how they stand to be benefited or injured by the decision in this case.46
Invoking the alter ego principle in political law, the public respondents claim
that absent any proof that former President Arroyo had disapproved of their
acts in entering into and implementing SC-46, such acts remain to be her
own.47

The public respondents contend that since petitioners Resident Marine

Mammals and Stewards' petition was not brought in the name of a real
party-in-interest, it should be dismissed for failure to state a cause of
action.48
The issue of whether or not animals or even inanimate objects should be
given legal standing in actions before courts of law is not new in the field of
animal rights and environmental law. Petitioners Resident Marine Mammals
and Stewards cited the 1972 United States case Sierra Club v. Rogers C.B.
Morton,49 wherein Justice William O. Douglas, dissenting to the conventional
thought on legal standing, opined:chanroblesvirtuallawlibrary
The critical question of "standing" would be simplified and also put neatly in
focus if we fashioned a federal rule that allowed environmental issues to be
litigated before federal agencies or federal courts in the name of the
inanimate object about to be despoiled, defaced, or invaded by roads and
bulldozers and where injury is the subject of public outrage, x x x.
Inanimate objects are sometimes parties in litigation. A ship has a legal
personality, a fiction found useful for maritime purposes. The corporation
sole - a creature of ecclesiastical law - is an acceptable adversary and large
fortunes ride on its cases. The ordinary corporation is a "person" for
purposes of the adjudicatory processes, whether it represents proprietary,
spiritual,
aesthetic,
or
charitable
causes.
So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries,
beaches, ridges, groves of trees, swampland, or even air that feels the
destructive pressures of modern technology and modem life. The river, for
example, is the living symbol of all the life it sustains or nourishesfish,
aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other
animals, including man, who are dependent on it or who enjoy it for its sight,
its sound, or its life. The river as plaintiff speaks for the ecological unit of life
that is part of it. Those people who have a meaningful relation to that body of
waterwhether it be a fisherman, a canoeist, a zoologist, or a loggermust
be able to speak for the values which the river represents and which are
threatened with destruction.50(Citations omitted.)
The primary reason animal rights advocates and environmentalists seek to
give animals and inanimate objects standing is due to the need to comply
with the strict requirements in bringing a suit to court. Our own 1997 Rules of
Court demand that parties to a suit be either natural or juridical persons, or
entities authorized by law. It further necessitates the action to be brought in
the name of the real party-in-interest, even if filed by a
representative, viz.:chanroblesvirtuallawlibrary

Rule
Parties to Civil Actions

Section 1. Who may be parties; plaintiff and defendant. - Only natural or

juridical persons, or entities authorized by law may be parties in a civil
action. The term "plaintiff may refer to the claiming party, the counterclaimant, the cross-claimant, or the third (fourth, etc.)-party plaintiff. The term
"defendant" may refer to the original defending party, the defendant in a
counterclaim, the cross-defendant, or the third (fourth, etc.)-party defendant.
Sec. 2. Parties in interest. - A real party in interest is the party who stands to
be benefited or injured by the judgment in the suit, or the party entitled to the
avails of the suit. Unless otherwise authorized by law or these Rules, every
action must be prosecuted or defended in the name of the real party in
interest.
Sec. 3. Representatives as parties. - Where the action is allowed to be
prosecuted or defended by a representative or someone acting in a fiduciary
capacity, the beneficiary shall be included in the title of the case and shall be
deemed to be the real party in interest. A representative may be a trustee of
an express trust, a guardian, an executor or administrator, or a party
authorized by law or these Rules. An agent acting in his own name and for
the benefit of an undisclosed principal may sue or be sued without joining
the principal except when the contract involves things belonging to the
principal.
It had been suggested by animal rights advocates and environmentalists that
not only natural and juridical persons should be given legal standing
because of the difficulty for persons, who cannot show that they by
themselves are real parties-in-interests, to bring actions in representation of
these animals or inanimate objects. For this reason, many environmental
cases have been dismissed for failure of the petitioner to show that he/she
would be directly injured or affected by the outcome of the case. However, in
our jurisdiction, locus standi in environmental cases has been given a more
liberalized approach. While developments in Philippine legal theory and
jurisprudence have not progressed as far as Justice Douglas's paradigm of
legal standing for inanimate objects, the current trend moves towards
simplification of procedures and facilitating court access in environmental
cases.
Recently, the Court passed the landmark Rules of Procedure for
Environmental Cases,51 which allow for a "citizen suit," and permit any
Filipino citizen to file an action before our courts for violations of our
environmental laws:chanroblesvirtuallawlibrary

SEC. 5. Citizen suit. - Any Filipino citizen in representation of others,

including minors or generations yet unborn, may file an action to
enforce rights or obligations under environmental laws. Upon the filing
of a citizen suit, the court shall issue an order which shall contain a brief
description of the cause of action and the reliefs prayed for, requiring all
interested parties to manifest their interest to intervene in the case within
fifteen (15) days from notice thereof. The plaintiff may publish the order once
in a newspaper of a general circulation in the Philippines or furnish all
affected
barangays
copies
of
said
order.
Citizen suits filed under R.A. No. 8749 and R.A. No. 9003 shall be governed
by their respective provisions.52 (Emphasis ours.)
Explaining the rationale for this rule, the Court, in the Annotations to the
Rules
of
Procedure
for
Environmental
Cases,
commented:chanroblesvirtuallawlibrary
Citizen suit. To further encourage the protection of the environment, the
Rules enable litigants enforcing environmental rights to file their cases as
citizen suits. This provision liberalizes standing for all cases filed enforcing
environmental laws and collapses the traditional rule on personal and direct
interest, on the principle that humans are stewards of nature. The
terminology of the text reflects the doctrine first enunciated in Oposa v.
Factoran, insofar as it refers to minors and generations yet
unborn.53(Emphasis supplied, citation omitted.)
Although this petition was filed in 2007, years before the effectivity of the
Rules of Procedure for Environmental Cases, it has been consistently held
that rules of procedure "may be retroactively applied to actions pending and
undetermined at the time of their passage and will not violate any right of a
person who may feel that he is adversely affected, inasmuch as there is no
vested
rights
in
rules
of
procedure." 54
Elucidating on this doctrine, the Court, in Systems Factors Corporation v.
National Labor Relations Commission55 held that:chanroblesvirtuallawlibrary
Remedial statutes or statutes relating to remedies or modes of procedure,
which do not create new or take away vested rights, but only operate in
furtherance of the remedy or confirmation of rights already existing, do not
come within the legal conception of a retroactive law, or the general rule
against retroactive operation of statutes. Statutes regulating the procedure of
the courts will be construed as applicable to actions pending and
undetermined at the time of their passage. Procedural laws are retroactive in
that sense and to that extent, x x x.
Moreover, even before the Rules of Procedure for Environmental Cases
became effective, this Court had already taken a permissive position on the
issue of locus standi in environmental cases. InOposa, we allowed the suit to

be brought in the name of generations yet unborn "based on the concept of

intergenerational responsibility insofar as the right to a balanced and
healthful ecology is concerned."56 Furthermore, we said that the right to a
balanced and healthful ecology, a right that does not even need to be stated
in our Constitution as it is assumed to exist from the inception of humankind,
carries with it the correlative duty to refrain from impairing the environment. 57
In light of the foregoing, the need to give the Resident Marine Mammals
legal standing has been eliminated by our Rules, which allow any Filipino
citizen, as a steward of nature, to bring a suit to enforce our environmental
laws. It is worth noting here that the Stewards are joined as real parties in
the Petition and not just in representation of the named cetacean species.
The Stewards, Ramos and Eisma-Osorio, having shown in their petition that
there may be possible violations of laws concerning the habitat of the
Resident Marine Mammals, are therefore declared to possess the legal
standing to file this petition.chanRoblesvirtualLawlibrary
Impleading Former President Gloria Macapagal-Arroyo as an Unwilling
Co-Petitioner
Petitioners Stewards in G.R. No. 180771 impleaded as an unwilling copetitioner former President Gloria Macapagal-Arroyo for the following
reasons, which we quote:chanroblesvirtuallawlibrary
Her Excellency Gloria Macapagal-Arroyo, also of legal age, Filipino and
resident of Malacaang Palace, Manila Philippines. Steward Gloria
Macapagal-Arroyo happens to be the incumbent President of the Philippine
Islands. She is personally impleaded in this suit as an unwilling co-petitioner
by reason of her express declaration and undertaking under the recently
signed ASEAN Charter to protect Your Petitioners' habitat, among others.
She is meantime dominated as an unwilling co-petitioner due to lack of
material time in seeking her signature and imprimatur hereof and due to
possible legal complications that may hereafter arise by reason of her official
relations with public respondents under the alter ego principle in political
law.58cralawlawlibrary
This

is

incorrect.

Section 10, Rule 3 of the Rules of Court provides:chanroblesvirtuallawlibrary

Sec. 10. Unwilling co-plaintiff. - If the consent of any party who should be
joined as plaintiff can not be obtained, he may be made a defendant and the
reason therefor shall be stated in the complaint.
Under the foregoing rule, when the consent of a party who should be joined
as a plaintiff cannot be obtained, he or she may be made a party defendant
to the case. This will put the unwilling party under the jurisdiction of the
Court, which can properly implead him or her through its processes. The

unwilling party's name cannot be simply included in a petition, without his or

her knowledge and consent, as such would be a denial of due process.

our natural resources,65 and paragraph 4 does not speak of service contracts
but of FTAAs or Financial Technical Assistance Agreements.66

Moreover, the reason cited by the petitioners Stewards for including former
President Macapagal-Arroyo in their petition, is not sufficient to implead her
as an unwilling co-petitioner. Impleading the former President as an unwilling
co-petitioner, for an act she made in the performance of the functions of her
office, is contrary to the public policy against embroiling the President in
suits, "to assure the exercise of Presidential duties and functions free from
any hindrance or distraction, considering that being the Chief Executive of
the Government is a job that, aside from requiring all of the office holder's
time,
also
demands
undivided
attention." 59

The public respondents again controvert the petitioners' claims and

asseverate that SC-46 does not violate Section 2, Article XII of the 1987
Constitution. They hold that SC-46 does not fall under the coverage of
paragraph 1 but instead, under paragraph 4 of Section 2, Article XII of the
1987 Constitution on FTAAs. They also insist that paragraphs 2 and 3, which
refer to the grant of exclusive fishing right to Filipinos, are not applicable to
SC-46 as the contract does not grant exclusive fishing rights to JAPEX nor
does it otherwise impinge on the FIDEC's right to preferential use of
communal marine and fishing resources.67

Therefore, former President Macapagal-Arroyo cannot be impleaded as one

of the petitioners in this suit. Thus, her name is stricken off the title of this
case.chanRoblesvirtualLawlibrary

Ruling
of
the
On
the
legality
of
Service
Contract
vis-a-vis Section 2, Article XII of the 1987 Constitution

Main
Legality

The petitioners insist that SC-46 is null and void for having violated Section
2, Article XII of the 1987 Constitution, which reads as
follows:chanroblesvirtuallawlibrary
Section 2. All lands of the public domain, waters, minerals, coal, petroleum,
and other mineral oils, all forces of potential energy, fisheries, forests or
timber, wildlife, flora and fauna, and other natural resources are owned by
the State. With the exception of agricultural lands, all other natural resources
shall not be alienated. The exploration, development, and utilization of
natural resources shall be under the full control and supervision of the State.
The State may directly undertake such activities, or it may enter into coproduction, joint venture, or production-sharing agreements with Filipino
citizens, or corporations or associations at least sixty per centum of whose
capital is owned by such citizens. Such agreements may be for a period not
exceeding twenty-five years, renewable for not more than twenty-five years,
and under such terms and conditions as may be provided by law. In cases of
water rights for irrigation, water supply, fisheries, or industrial uses other
than the development of water power, beneficial use may be the measure
and
limit
of
the
grant.

of

Service

Service
Contract
Section
2,
Article
1987 Constitution

Contract
No.
XII

No.
of

Issue:
46

46 vis-a-vis
the

Petitioners maintain that SC-46 transgresses the Jura Regalia Provision or

paragraph 1, Section 2, Article XII of the 1987 Constitution because JAPEX
is 100% Japanese-owned.60 Furthermore, the FIDEC asserts that SC-46
cannot be considered as a technical and financial assistance agreement
validly executed under paragraph 4 of the same provision. 61 The petitioners
claim that La Bugal-B'laan Tribal Association, Inc. v. Ramos 62 laid down the
guidelines for a valid service contract, one of which is that there must exist a
general law for oil exploration before a service contract may be entered into
by the Government. The petitioners posit that the service contract in La
Bugal is presumed to have complied with the requisites of (a) legislative
enactment of a general law after the effectivity of the 1987 Constitution (such
as Republic Act No. 7942, or the Philippine Mining Law of 1995, governing
mining contracts) and (b) presidential notification. The petitioners thus allege
that the ruling in La Bugal, which involved mining contracts under Republic
Act No. 7942, does not apply in this case. 63 The petitioners also argue that
Presidential Decree No. 87 or the Oil Exploration and Development Act of
1972 cannot legally justify SC-46 as it is deemed to have been repealed by
the 1987 Constitution and subsequent laws, which enunciate new policies
concerning the environment.64In addition, petitioners in G.R. No. 180771
claim that paragraphs 2 and 3 of Section 2, Article XII of the 1987
Constitution mandate the exclusive use and enjoyment by the Filipinos of

No.

Court
46

The State shall protect the nation's marine wealth in its archipelagic waters,
territorial sea, and exclusive economic zone, and reserve its use and
enjoyment
exclusively
to
Filipino
citizens.
The Congress may, by law, allow small-scale utilization of natural resources
by Filipino citizens, as well as cooperative fish farming, with priority to
subsistence fishermen and fishworkers in rivers, lakes, bays, and lagoons.
The President may enter into agreements with foreign-owned

corporations involving either technical or financial assistance for

large-scale exploration, development, and utilization of minerals,
petroleum, and other mineral oils according to the general terms and
conditions provided by law, based on real contributions to the
economic growth and general welfare of the country. In such
agreements, the State shall promote the development and use of local
scientific
and
technical
resources.
The President shall notify the Congress of every contract entered into
in accordance with this provision, within thirty days from its execution.
(Emphases ours.)
This Court has previously settled the issue of whether service contracts are
still allowed under the 1987 Constitution. In La Bugal, we held that the
deletion of the words "service contracts" in the 1987 Constitution did not
amount to a ban on them per se. In fact, in that decision, we quoted in
length, portions of the deliberations of the members of the Constitutional
Commission (ConCom) to show that in deliberating on paragraph 4, Section
2, Article XII, they were actually referring to service contracts as understood
in the 1973 Constitution, albeit with safety measures to eliminate or minimize
the
abuses
prevalent
during
the
martial
law
regime,
to
wit:chanroblesvirtuallawlibrary
Summation
of
the
ConCom
Deliberations
At this point, we sum up the matters established, based on a careful reading
of
the
ConCom
deliberations,
as
follows:
In their deliberations on what was to become paragraph 4, the framers used
the termservice contracts in referring to agreements x x x involving either
technical
or
financial
assistance.
They spoke of service contracts as the concept was understood in the 1973
Constitution.
It was obvious from their discussions that they were not about to ban or
eradicateservice
contracts.
Instead, they were plainly crafting provisions to put in place safeguards that
would eliminate or minimize the abuses prevalent during the marital law
regime. In brief, they were going to permit service contracts with foreign
corporations as contractors, but with safety measures to prevent abuses, as
an exception to the general norm established in the first paragraph of
Section 2 of Article XII. This provision reserves or limits to Filipino citizens
and corporations at least 60 percent of which is owned by such citizens
the exploration, development and utilization of natural resources.

This provision was prompted by the perceived insufficiency of Filipino capital

and the felt need for foreign investments in the EDU of minerals and
petroleum
resources.
The framers for the most part debated about the sort of safeguards that
would be considered adequate and reasonable. But some of them, having
more "radical" leanings, wanted to ban service contracts altogether; for
them, the provision would permit aliens to exploit and benefit from the
nation's natural resources, which they felt should be reserved only for
Filipinos.
In the explanation of their votes, the individual commissioners were heard by
the entire body. They sounded off their individual opinions, openly
enunciated their philosophies, and supported or attacked the provisions with
fervor.
Everyone's
viewpoint
was
heard.
In the final voting, the Article on the National Economy and Patrimony
including paragraph 4 allowing service contracts with foreign corporations as
an exception to the general norm in paragraph 1 of Section 2 of the same
article was resoundingly approved by a vote of 32 to 7, with 2
abstentions.
Agreements Involving Technical Or Financial Assistance Are Service
Contracts
with
Safeguards
From the foregoing, we are impelled to conclude that the
phrase agreements involving either technical or financial assistance, referred
to in paragraph 4, are in fact service contracts. But unlike those of the 1973
variety, the new ones are between foreign corporations acting as contractors
on the one hand; and on the other, the government as principal or "owner" of
the works. In the new service contracts, the foreign contractors provide
capital, technology and technical know-how, and managerial expertise in the
creation and operation of large-scale mining/extractive enterprises; and the
government, through its agencies (DENR, MGB), actively exercises control
and supervision over the entire operation.68cralawlawlibrary
In summarizing the matters discussed in the ConCom, we established that
paragraph 4, with the safeguards in place, is the exception to
paragraph 1, Section 2 of Article XII. The following are the safeguards this
Court enumerated in La Bugal:chanroblesvirtuallawlibrary
Such service contracts may be entered into only with respect to minerals,
petroleum and other mineral oils. The grant thereof is subject to several
safeguards,
among
which
are
these
requirements:

(1) The service contract shall be crafted in accordance with a general law
that will set standard or uniform terms, conditions and requirements,
presumably to attain a certain uniformity in provisions and avoid the possible
insertion
of
terms
disadvantageous
to
the
country.
(2) The President shall be the signatory for the government because,
supposedly before an agreement is presented to the President for signature,
it will have been vetted several times over at different levels to ensure that it
conforms
to
law
and
can
withstand
public
scrutiny.
(3) Within thirty days of the executed agreement, the President shall report it
to Congress to give that branch of government an opportunity to look over
the agreement and interpose timely objections, if any.69cralawlawlibrary
Adhering to the aforementioned guidelines, this Court finds that SC-46 is
indeed null and void for noncompliance with the requirements of the 1987
Constitution.
1.

The

General

Law

on

Oil

Exploration

The disposition, exploration, development, exploitation, and utilization of

indigenous petroleum in the Philippines are governed by Presidential Decree
No. 87 or the Oil Exploration and Development Act of 1972. This was
enacted by then President Ferdinand Marcos to promote the discovery and
production of indigenous petroleum through the utilization of government
and/or local or foreign private resources to yield the maximum benefit to the
Filipino people and the revenues to the Philippine Government.70
Contrary to the petitioners' argument, Presidential Decree No. 87, although
enacted in 1972, before the adoption of the 1987 Constitution, remains to be
a valid law unless otherwise repealed, to wit:chanroblesvirtuallawlibrary
ARTICLE XVIII - TRANSITORY PROVISIONS
Section 3. All existing laws, decrees, executive orders, proclamations,
letters of instructions, and other executive issuances not inconsistent with
this Constitution shall remain operative until amended, repealed, or revoked.
If there were any intention to repeal Presidential Decree No. 87, it would
have been done expressly by Congress. For instance, Republic Act No.
7160, more popularly known as the Local Government Code of 1991,
expressly repealed a number of laws, including a specific provision in
Presidential Decree No. 87, viz.:chanroblesvirtuallawlibrary
SECTION 534. Repealing Clause. (a) Batas Pambansa Blg. 337,
otherwise known as the "Local Government Code," Executive Order No. 112
(1987), and Executive Order No. 319 (1988) are hereby repealed.

(b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees,
orders, instructions, memoranda and issuances related to or concerning the
barangay
are
hereby
repealed.
(c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding
hospital fund; Section 3, a (3) and b (2) of Republic Act No. 5447 regarding
the Special Education Fund; Presidential Decree No. 144 as amended by
Presidential Decree Nos. 559 and 1741; Presidential Decree No. 231 as
amended; Presidential Decree No. 436 as amended by Presidential Decree
No. 558; and Presidential Decree Nos. 381, 436, 464, 477, 526, 632, 752,
and 1136 are hereby repealed and rendered of no force and effect.
(d) Presidential Decree No. 1594 is hereby repealed insofar as it governs
locally-funded
projects.
(e) The following provisions are hereby repealed or amended insofar as they
are inconsistent with the provisions of this Code: Sections 2, 16 and 29 of
Presidential Decree No. 704; Section 12 of Presidential Decree No. 87, as
amended; Sections 52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of
Presidential Decree No. 463, as amended; and Section 16 of Presidential
Decree
No.
972,
as
amended,
and
(f) All general and special laws, acts, city charters, decrees, executive
orders, proclamations and administrative regulations, or part or parts thereof
which are inconsistent with any of the provisions of this Code are hereby
repealed or modified accordingly. (Emphasis supplied.)
This Court could not simply assume that while Presidential Decree No. 87
had not yet been expressly repealed, it had been impliedly repealed. As we
held in Villarea v. The Commission on Audit,71 "[i]mplied repeals are not
lightly presumed." It is a settled rule that when laws are in conflict with one
another, every effort must be exerted to reconcile them. In Republic of the
Philippines
v.
Marcopper
Mining
Corporation,72 we
said:chanroblesvirtuallawlibrary
The two laws must be absolutely incompatible, and a clear finding thereof
must surface, before the inference of implied repeal may be drawn. The rule
is expressed in the maxim, interpretare et concordare leqibus est optimus
interpretendi, i.e., every statute must be so interpreted and brought into
accord with other laws as to form a uniform system of jurisprudence. The
fundament is that the legislature should be presumed to have known the
existing laws on the subject and not have enacted conflicting statutes.
Hence, all doubts must be resolved against any implied repeal, and all
efforts should be exerted in order to harmonize and give effect to all laws on
the subject. (Citation omitted.)

Moreover, in cases where the statute seems to be in conflict with the

Constitution, but a construction that it is in harmony with the Constitution is
also possible, that construction should be preferred.73This Court,
in Pangandaman v. Commission on Elections74 expounding on this point,
pronounced:chanroblesvirtuallawlibrary
It is a basic precept in statutory construction that a statute should be
interpreted in harmony with the Constitution and that the spirit, rather than
the letter of the law determines its construction; for that reason, a statute
must be read according to its spirit and intent, x x x. (Citation omitted.)
Consequently, we find no merit in petitioners' contention that SC-46 is
prohibited on the ground that there is no general law prescribing the
standard or uniform terms, conditions, and requirements for service
contracts
involving
oil
exploration
and
extraction.
But note must be made at this point that while Presidential Decree No. 87
may serve as the general law upon which a service contract for petroleum
exploration and extraction may be authorized, as will be discussed below,
the exploitation and utilization of this energy resource in the present case
may be allowed only through a law passed by Congress, since the Taon
Strait
is
a
NIPAS75 area.
2. President was not the signatory to SC-46 and the same was not
submitted
to
Congress
While the Court finds that Presidential Decree No. 87 is sufficient to satisfy
the requirement of a general law, the absence of the two other conditions,
that the President be a signatory to SC-46, and that Congress be notified of
such
contract,
renders
it
null
and
void.
As SC-46 was executed in 2004, its terms should have conformed not only
to the provisions of Presidential Decree No. 87, but also to those of the 1987
Constitution. The Civil Code provides:chanroblesvirtuallawlibrary
ARTICLE 1306. The contracting parties may establish such stipulations,
clauses, terms and conditions as they may deem convenient, provided they
are not contrary to law, morals, good customs, public order, or public policy.
(Italics ours.)
In Heirs of San Miguel v. Court of Appeals,76 this Court held
that:chanroblesvirtuallawlibrary
It is basic that the law is deemed written into every contract. Although a
contract is the law between the parties, the provisions of positive law which
regulate contracts are deemed written therein and shall limit and govern the
relations between the parties, x x x. (Citations omitted.)

Paragraph 4, Section 2, Article XII of the 1987 Constitution requires that the
President himself enter into any service contract for the exploration of
petroleum. SC-46 appeared to have been entered into and signed only by
the DOE through its then Secretary, Vicente S. Perez, Jr., contrary to the
said constitutional requirement. Moreover, public respondents have neither
shown nor alleged that Congress was subsequently notified of the execution
of
such
contract.
Public respondents' implied argument that based on the "alter ego principle,"
their acts are also that of then President Macapagal-Arroyo's, cannot apply
in this case. In Joson v. Torres,77 we explained the concept of the alter ego
principle or the doctrine of qualified political agency and its limit in this
wise:chanroblesvirtuallawlibrary
Under this doctrine, which recognizes the establishment of a single
executive, all executive and administrative organizations are adjuncts of the
Executive Department, the heads of the various executive departments are
assistants and agents of the Chief Executive, and, except in cases where
the Chief Executive is required by the Constitution or law to act in
person or the exigencies of the situation demand that he act
personally, the multifarious executive and administrative functions of the
Chief Executive are performed by and through the executive departments,
and the acts of the Secretaries of such departments, performed and
promulgated in the regular course of business, are, unless disapproved or
reprobated by the Chief Executive presumptively the acts of the Chief
Executive. (Emphasis ours, citation omitted.)
While the requirements in executing service contracts in paragraph 4,
Section 2 of Article XII of the 1987 Constitution seem like mere formalities,
they, in reality, take on a much bigger role. As we have explained in La
Bugal, they are the safeguards put in place by the framers of the
Constitution to "eliminate or minimize the abuses prevalent during the
martial law regime."78 Thus, they are not just mere formalities, which will only
render a contract unenforceable but not void, if not complied with. They are
requirements placed, not just in an ordinary statute, but in the fundamental
law, the non-observance of which will nullify the contract. Elucidating on the
concept of a "constitution," this Court, in Manila Prince Hotel v. Government
Service Insurance System,79 held:chanroblesvirtuallawlibrary
A constitution is a system of fundamental laws for the governance and
administration of a nation. It is supreme, imperious, absolute and unalterable
except by the authority from which it emanates. It has been defined as the
fundamental and paramount law of the nation. It prescribes the permanent
framework of a system of government, assigns to the different departments
their respective powers and duties, and establishes certain fixed principles
on which government is founded. The fundamental conception in other
words is that it is a supreme law to which all other laws must conform and in

accordance with which all private rights must be determined and all public
authority administered. Under the doctrine of constitutional supremacy,
if a law or contract violates any norm of the constitution that law or
contract whether promulgated by the legislative or by the executive
branch or entered into by private persons for private purposes is null
and void and without any force and effect. Thus, since the Constitution is
the fundamental, paramount and supreme law of the nation, it is deemed
written in every statute and contract. (Emphasis ours.)

Decree No. 87, it must be shown that the government agency or subordinate
official has been authorized by the President to enter into such service
contract for the government. Otherwise, it should be at least shown that the
President subsequently approved of such contract explicitly. None of these
circumstances is evident in the case at bar.chanRoblesvirtualLawlibrary

As this Court has held in La Bugal, our Constitution requires that the
President himself be the signatory of service agreements with foreign-owned
corporations involving the exploration, development, and utilization of our
minerals, petroleum, and other mineral oils. This power cannot be taken
lightly.

Petitioners in G.R. No. 180771 claim that SC-46 violates Section 27 of

Republic Act. No. 9147 or the Wildlife Resources Conservation and
Protection Act, which bans all marine exploration and exploitation of oil and
gas deposits. They also aver that Section 14 of Republic Act No. 7586 or the
National Integrated Protected Areas System Act of 1992 (NIPAS Act), which
allows the exploration of protected areas for the purpose of informationgathering, has been repealed by Section 27 of Republic Act No. 9147. The
said petitioners further claim that SC-46 is anathema to Republic Act No.
8550 or the Philippine Fisheries Code of 1998, which protects the rights of
the fisherfolk in the preferential use of municipal waters, with the exception
being
limited
only
to
research
and
survey
activities.80

In this case, the public respondents have failed to show that the President
had any participation in SC-46. Their argument that their acts are actually
the acts of then President Macapagal-Arroyo, absent proof of her
disapproval, must fail as the requirement that the President herself enter into
these kinds of contracts is embodied not just in any ordinary statute, but in
the Constitution itself. These service contracts involving the exploitation,
development, and utilization of our natural resources are of paramount
interest to the present and future generations. Hence, safeguards were put
in place to insure that the guidelines set by law are meticulously observed
and likewise to eradicate the corruption that may easily penetrate
departments and agencies by ensuring that the President has authorized or
approved
of
these
service
contracts
herself.
Even under the provisions of Presidential Decree No. 87, it is required that
the Petroleum Board, now the DOE, obtain the President's approval for the
execution of any contract under said statute, as shown in the following
provision:chanroblesvirtuallawlibrary
SECTION 5. Execution of contract authorized in this Act. - Every contract
herein authorized shall, subject to the approval of the President, be executed
by the Petroleum Board created in this Act, after due public notice prequalification and public bidding or concluded through negotiations. In case
bids are requested or if requested no bid is submitted or the bids submitted
are rejected by the Petroleum Board for being disadvantageous to the
Government, the contract may be concluded through negotiation.
In opening contract areas and in selecting the best offer for petroleum
operations, any of the following alternative procedures may be resorted to by
the Petroleum Board, subject to prior approval of the President [.]
Even if we were inclined to relax the requirement in La Bugal to harmonize
the 1987 Constitution with the aforementioned provision of Presidential

Service Contract No. 46 vis-a-vis Other Laws

The FIDEC, for its part, argues that to avail of the exceptions under Section
14 of the NIPAS Act, the gathering of information must be in accordance with
a DENR-approved program, and the exploitation and utilization of energy
resources must be pursuant to a general law passed by Congress expressly
for that purpose. Since there is neither a DENR-approved program nor a
general law passed by Congress, the seismic surveys and oil drilling
operations were all done illegally.81 The FIDEC likewise contends that SC-46
infringes on its right to the preferential use of the communal fishing waters
as it is denied free access within the prohibited zone, in violation not only of
the Fisheries Code but also of the 1987 Constitutional provisions on
subsistence fisherfolk and social justice.82 Furthermore, the FIDEC believes
that the provisions in Presidential Decree No. 87, which allow offshore
drilling even in municipal waters, should be deemed to have been rendered
inoperative by the provisions of Republic Act No. 8550 and Republic Act No.
7160, which reiterate the social justice provisions of the Constitution.83
The public respondents invoke the rules on statutory construction and argue
that Section 14 of the NIPAS Act is a more particular provision and cannot
be deemed to have been repealed by the more general prohibition in Section
27 of Republic Act No. 9147. They aver that Section 14, under which SC-46
falls, should instead be regarded as an exemption to Section 27.84
Addressing the claim of petitioners in G.R. No. 180771 that there was a
violation of Section 27 of Republic Act No. 9147, the public respondents
assert that what the section prohibits is the exploration of minerals, which as

defined in the Philippine Mining Act of 1995, exclude energy materials such
as coal, petroleum, natural gas, radioactive materials and geothermal
energy. Thus, since SC-46 involves oil and gas exploration, Section 27 does
not
apply.85
The public respondents defend the validity of SC-46 and insist that it does
not grant exclusive fishing rights to JAPEX; hence, it does not violate the
rule on preferential use of municipal waters. Moreover, they allege that
JAPEX has not banned fishing in the project area, contrary to the FIDEC's
claim. The public respondents also contest the attribution of the declining
fish catch to the seismic surveys and aver that the allegation is unfounded.
They claim that according to the Bureau of Fisheries and Aquatic Resources'
fish catch data, the reduced fish catch started in the 1970s due to
destructive fishing practices.86
Ruling
of
the
On the legality of Service Contract No. 46 vis-a-vis Other Laws

Court

Although we have already established above that SC-46 is null and void for
being violative of the 1987 Constitution, it is our duty to still rule on the
legality of SC-46 vis-a-vis other pertinent laws, to serve as a guide for the
Government when executing service contracts involving not only the Taon
Strait, but also other similar areas. While the petitioners allege that SC-46 is
in violation of several laws, including international ones, their arguments
focus primarily on the protected status of the Taon Strait, thus this Court will
concentrate on those laws that pertain particularly to the Taon Strait as a
protected
seascape.
The Taon Strait is a narrow passage of water bounded by the islands of
Cebu in the East and Negros in the West. It harbors a rich biodiversity of
marine life, including endangered species of dolphins and whales. For this
reason, former President Fidel V. Ramos declared the Taon Strait as a
protected seascape in 1998 by virtue of Proclamation No. 1234 - Declaring
the Taon Strait situated in the Provinces of Cebu, Negros Occidental and
Negros Oriental as a Protected Area pursuant to the NIP AS Act and shall be
known as Taon Strait Protected Seascape. During former President Joseph
E. Estrada's time, he also constituted the Taon Strait Commission via
Executive Order No. 76 to ensure the optimum and sustained use of the
resources in that area without threatening its marine life. He followed this
with Executive Order No. 177,87 wherein he included the mayor of Negros
Occidental Municipality/City as a member of the Taon Strait Commission, to
represent the LGUs concerned. This Commission, however, was
subsequently abolished in 2002 by then President Gloria Macapagal-Arroyo,
via
Executive
Order
No.
72. 88

True to the constitutional policy that the "State shall protect and advance the
right of the people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature,"89 Congress enacted the NIPAS Act to
secure the perpetual existence of all native plants and animals through the
establishment of a comprehensive system of integrated protected areas.
These areas possess common ecological values that were incorporated into
a holistic plan representative of our natural heritage. The system
encompasses outstandingly remarkable areas and biologically important
public lands that are habitats of rare and endangered species of plants and
animals, biogeographic zones and related ecosystems, whether terrestrial,
wetland, or marine.90 It classifies and administers all the designated
protected areas to maintain essential ecological processes and life-support
systems, to preserve genetic diversity, to ensure sustainable use of
resources found therein, and to maintain their natural conditions to the
greatest extent possible.91 The following categories of protected areas were
established under the NIPAS Act:chanroblesvirtuallawlibrary
a.

Strict nature reserve;

b.

Natural park;

c.

Natural monument;

d.

Wildlife sanctuary;

e.

Protected landscapes and seascapes;

f.

Resource reserve;

g.

Natural biotic areas; and

h.

Other categories established by law, conventions or

international agreements which the Philippine Government
is a signatory.92

Under Section 4 of the NIPAS Act, a protected area refers to portions of land
and water, set aside due to their unique physical and biological significance,
managed to enhance biological diversity and protected against human
exploitation.
The Taon Strait, pursuant to Proclamation No. 1234, was set aside and
declared a protected area under the category of Protected Seascape. The

NIPAS Act defines a Protected Seascape to be an area of national

significance characterized by the harmonious interaction of man and land
while providing opportunities for public enjoyment through recreation and
tourism within the normal lifestyle and economic activity of this areas;93 thus
a management plan for each area must be designed to protect and enhance
the permanent preservation of its natural conditions. 94 Consistent with this
endeavor is the requirement that an Environmental Impact Assessment (EIA)
be made prior to undertaking any activity outside the scope of the
management plan. Unless an ECC under the EIA system is obtained, no
activity inconsistent with the goals of the NIPAS Act shall be implemented. 95
The Environmental Impact Statement System (EISS) was established in
1978 under Presidential Decree No. 1586. It prohibits any person,
partnership or corporation from undertaking or operating any declared
environmentally critical project or areas without first securing an ECC issued
by the President or his duly authorized representative. 96 Pursuant to the
EISS, which called for the proper management of environmentally critical
areas,97 Proclamation No. 214698 was enacted, identifying the areas and
types of projects to be considered as environmentally critical and within the
scope of the EISS, while DENR Administrative Order No. 2003-30 provided
for
its
Implementing
Rules
and
Regulations
(IRR).
DENR Administrative Order No. 2003-30 defines an environmentally critical
area as "an area delineated as environmentally sensitive such that
significant environmental impacts are expected if certain types of proposed
projects or programs are located, developed, or implemented in it"; 99thus,
before a project, which is "any activity, regardless of scale or magnitude,
which may have significant impact on the environment," 100 is undertaken in it,
such project must undergo an EIA to evaluate and predict the likely impacts
of all its stages on the environment.101 An EIA is described in detail as
follows:chanroblesvirtuallawlibrary
h. Environmental Impact Assessment (EIA) - process that involves
evaluating and predicting the likely impacts of a project (including
cumulative impacts) on the environment during construction,
commissioning, operation and abandonment. It also includes designing
appropriate preventive, mitigating and enhancement measures
addressing these consequences to protect the environment and the
community's welfare. The process is undertaken by, among others, the
project proponent and/or EIA Consultant, EMB, a Review Committee,
affected communities and other stakeholders.102
Under Proclamation No. 2146, the Taon Strait is an environmentally
critical area, having been declared as a protected area in 1998;
therefore, any activity outside the scope of its management plan may
only be implemented pursuant to an ECC secured after undergoing an
EIA to determine the effects of such activity on its ecological system.

The public respondents argue that they had complied with the procedures in
obtaining an ECC103and that SC-46 falls under the exceptions in Section 14
of
the
NIPAS
Act,
due
to
the
following
reasons:
1) The Taon Strait is not a strict nature reserve or natural park;
2) Exploration is only for the purpose of gathering information on possible
energy
resources;
and
3) Measures are undertaken to ensure that the exploration is being done
with
the
least
damage
to
surrounding
areas.104
We do not agree with the arguments raised by the public respondents.
Sections 12 and 14 of the NIPAS Act read:chanroblesvirtuallawlibrary
SECTION 12. Environmental Impact Assessment. - Proposals for activities
which are outside the scope of the management plan for protected areas
shall be subject to an environmental impact assessment as required by law
before they are adopted, and the results thereof shall be taken into
consideration
in
the
decision-making
process.
No actual implementation of such activities shall be allowed without the
required Environmental Compliance Certificate (ECC) under the Philippine
Environmental Impact Assessment (EIA) system. In instances where such
activities are allowed to be undertaken, the proponent shall plan and carry
them out in such manner as will minimize any adverse effects and take
preventive and remedial action when appropriate. The proponent shall be
liable for any damage due to lack of caution or indiscretion.
SECTION 14. Survey for Energy Resources. - Consistent with the policies
declared in Section 2 hereof, protected areas, except strict nature reserves
and natural parks, may be subjected to exploration only for the purpose of
gathering information on energy resources and only if such activity is carried
out with the least damage to surrounding areas. Surveys shall be conducted
only in accordance with a program approved by the DENR, and the result of
such surveys shall be made available to the public and submitted to the
President for recommendation to Congress. Any exploitation and utilization
of energy resources found within NIPAS areas shall be allowed only through
a law passed by Congress.
It is true that the restrictions found under the NIPAS Act are not without
exceptions. However, while an exploration done for the purpose of
surveying for energy resources is allowed under Section 14 of the
NIPAS Act, this does not mean that it is exempt from the requirement to

undergo an EIA under Section 12. In Sotto v. Sotto,105 this Court explained
why a statute should be construed as a whole:chanroblesvirtuallawlibrary
A statute is passed as a whole and not in parts or sections and is animated
by one general purpose and intent. Consequently each part or section
should be construed in connection with every other part or section and so as
to produce a harmonious whole. It is not proper to confine the attention to
the one section to be construed. It is always an unsafe way of construing a
statute or contract to divide it by a process of etymological dissection, into
separate words, and then apply to each, thus separated from its context,
some particular definition given by lexicographers, and then reconstruct the
instrument upon the basis of these definitions. An instrument must always be
construed as a whole, and the particular meaning to be attached to any word
or phrase is usually to be ascertained from the context, the nature of the
subject treated of and the purpose or intention of the parties who executed
the contract, or of the body which enacted or framed the statute or
constitution, x x x.
Surveying for energy resources under Section 14 is not an exemption
from complying with the EIA requirement in Section 12; instead,
Section 14 provides for additionalrequisites before any exploration for
energy
resources
may
be
done
in
protected
areas.
The rationale for such additional requirements are incorporated in Section 2
of the NIPAS Act, to wit:chanroblesvirtuallawlibrary
SECTION 2. Declaration of Policy - Cognizant of the profound impact of
man's activities on all components of the natural environment particularly the
effect of increasing population, resource exploitation and industrial
advancement amd recognizing the critical importance of protecting and
maintaining the natural biological and physical diversities of the environment
notably on areas with biologically unique features to sustain human life and
development, as well as plant and animal life, it is hereby declared the policy
of the State to secure for the Filipino people of present and future
generations the perpetual existence of all native plants and animals through
the establishment of a comprehensive system of integrated protected areas
within the classification of national park as provided for in the Constitution.
It is hereby recognized that these areas, although distinct in features,
possess common ecological values that may be incorporated into a holistic
plan representative of our natural heritage; that effective administration of
this area is possible only through cooperation among national government,
local government and concerned private organizations; that the use and
enjoyment of these protected areas must be consistent with the principles of
biological
diversity
and
sustainable
development.
To this end, there is hereby established a National Integrated Protected

Areas System (NIPAS), which shall encompass outstandingly remarkable

areas and biologically important public lands that are habitats of rare and
endangered species of plants and animals, biogeographic zones and related
ecosystems, whether terrestrial, wetland or marine, all of which shall be
designated as "protected areas."
The public respondents themselves admitted that JAPEX only started to
secure an ECC prior to the second sub-phase of SC-46, which required the
drilling of an oil exploration well. This means that when the seismic surveys
were done in the Taon Strait, no such environmental impact evaluation was
done. Unless seismic surveys are part of the management plan of the Taon
Strait, such surveys were dona in violation of Section 12 of the NIPAS Act
and
Section
4
of
Presidential
Decree
No.
1586,
which
provides:chanroblesvirtuallawlibrary
Section 4. Presidential Proclamation of Environmentally Critical Areas and
Projects. - The President of the Philippines may, on his own initiative or upon
recommendation of the National Environmental Protection Council, by
proclamation declare certain projects, undertakings or areas in the country
as environmentally critical. No person, partnership or corporation shall
undertake or operate any such declared environmentally critical project or
area without first securing an Environmental Compliance Certificate issued
by the President or his duly authorized representative. For the proper
management of said critical project or area, the President may by his
proclamation reorganize such government offices, agencies, institutions,
corporations or instrumentalities including the re-alignment of government
personnel,
and
their
specific
functions
and
responsibilities.
For the same purpose as above, the Ministry of Human Settlements shall:
(a) prepare the proper land or water use pattern for said critical project(s) or
area(s); (b) establish ambient environmental quality standards; (c) develop a
program of environmental enhancement or protective measures against
calamitous factors such as earthquakes, floods, water erosion and others,
and (d) perform such other functions as may be directed by the President
from time to time.
The respondents' subsequent compliance with the EISS for the second subphase of SC-46 cannot and will not cure this violation. The following
penalties are provided for under Presidential Decree No. 1586 and the
NIPAS
Act.
Section 9 of Presidential Decree No. 1586 provides for the penalty involving
violations of the ECC requirement:chanroblesvirtuallawlibrary
Section 9. Penalty for Violation. - Any person, corporation or partnership
found violating Section 4 of this Decree, or the terms and conditions in the
issuance of the Environmental Compliance Certificate, or of the standards,
rules and regulations issued by the National Environmental Protection

Council pursuant to this Decree shall be punished by the suspension or

cancellation of his/its certificates and/or a fine in an amount not to
exceed Fifty Thousand Pesos (P50,000.00) for every violation thereof,
at the discretion of the National Environmental Protection Council.
(Emphasis supplied.)
Violations of the NIPAS Act entails the following fines and/or imprisonment
under Section 21:chanroblesvirtuallawlibrary
SECTION 21. Penalties. - Whoever violates this Act or any rules and
regulations issued by the Department pursuant to this Act or whoever is
found guilty by a competent court of justice of any of the offenses in the
preceding section shall be fined in the amount of not less than Five
thousand pesos (P5,000) nor more than Five hundred thousand pesos
(P500,000), exclusive of the value of the thing damaged or
imprisonment for not less than one (1) year but not more than six (6)
years, or both, as determined by the court: Provided, that, if the area
requires rehabilitation or restoration as determined by the court, the
offender shall be required to restore or compensate for the restoration
to the damages:Provided, further, that court shall order the eviction of the
offender from the land and the forfeiture in favor of the Government of
all minerals, timber or any species collected or removed including all
equipment, devices and firearms used in connection therewith, and
any construction or improvement made thereon by the offender. If the
offender is an association or corporation, the president or manager shall be
directly responsible for the act of his employees and laborers: Provided,
finally, that the DENR may impose administrative fines and penalties
consistent with this Act. (Emphases supplied.)
Moreover, SC-46 was not executed for the mere purpose of gathering
information on the possible energy resources in the Taon Strait as it also
provides for the parties' rights and obligations relating to extraction and
petroleum production should oil in commercial quantities be found to exist in
the area. While Presidential Decree No. 87 may serve as the general law
upon which a service contract for petroleum exploration and extraction
may be authorized, the exploitation and utilization of this energy
resource in the present case may be allowed only through a law
passed by Congress, since the Taon Strait is a NIPAS area. 106Since
there is no such law specifically allowing oil exploration and/or
extraction in the Taon Strait, no energy resource exploitation and
utilization
may
be
done
in
said
protected
seascape.
In view of the foregoing premises and conclusions, it is no longer necessary
to discuss the other issues raised in these consolidated petitions.cralawred
WHEREFORE, the Petitions in G.R. Nos. 180771 and 181527
are GRANTED, Service Contract No. 46 is hereby declared NULL AND

VOID for violating the 1987 Constitution, Republic Act No. 7586, and
Presidential
Decree
No.
1586.
SO

ORDERED.chanroblesvirtuallawlibrary

Sereno, C. J., Carpio, Velasco, Jr., Brion, Peralta, Bersamin, Del Castillo,
Villarama, Jr., Perez, Mendoza, Reyes, and Perlas-Bernabe, JJ., concur.
Leonen,
J.,
see
concurring
opinion.
Jardeleza, J., no part prior OSG action

Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC

G.R. No. 101083 July 30, 1993

JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed
OPOSA, minors, and represented by their parents ANTONIO and
RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented by
her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD
and PATRISHA, all surnamed FLORES, minors and represented by their
parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor,
represented by her parents SIGRID and DOLORES FORTUN, GEORGE
II and MA. CONCEPCION, all surnamed MISA, minors and represented
by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V.
PESIGAN, minor, represented by his parents ANTONIO and ALICE
PESIGAN, JOVIE MARIE ALFARO, minor, represented by her parents
JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO,
minor, represented by her parents FREDENIL and JANE CASTRO,
JOHANNA
DESAMPARADO,

minor, represented by her parents JOSE and ANGELA DESAMPRADO,

CARLO JOAQUIN T. NARVASA, minor, represented by his parents
GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA,
JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed
SAENZ, minors, represented by their parents ROBERTO and AURORA
SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID
IAN, all surnamed KING, minors, represented by their parents MARIO
and HAYDEE KING, DAVID, FRANCISCO and THERESE VICTORIA, all
surnamed ENDRIGA, minors, represented by their parents BALTAZAR
and TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed
ABAYA, minors, represented by their parents ANTONIO and MARICA
ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA,
minors, represented by their parents MARIO and LINA CARDAMA,
CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA,
minors and represented by their parents RICARDO and MARISSA
OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all
surnamed QUIPIT, minors, represented by their parents JOSE MAX and
VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and
FRANCISCO, all surnamed BIBAL, minors, represented by their parents
FRANCISCO, JR. and MILAGROS BIBAL, and THE PHILIPPINE
ECOLOGICAL
NETWORK,
INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as
the Secretary of the Department of Environment and Natural
Resources, and THE HONORABLE ERIBERTO U. ROSARIO, Presiding
Judge of the RTC, Makati, Branch 66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.

DAVIDE, JR., J.:

In a broader sense, this petition bears upon the right of Filipinos to a
balanced and healthful ecology which the petitioners dramatically associate
with the twin concepts of "inter-generational responsibility" and "intergenerational justice." Specifically, it touches on the issue of whether the said
petitioners have a cause of action to "prevent the misappropriation or
impairment" of Philippine rainforests and "arrest the unabated hemorrhage
of the country's vital life support systems and continued rape of Mother
Earth."

The controversy has its genesis in Civil Case No. 90-77 which was filed
before Branch 66 (Makati, Metro Manila) of the Regional Trial Court (RTC),
National Capital Judicial Region. The principal plaintiffs therein, now the
principal petitioners, are all minors duly represented and joined by their
respective parents. Impleaded as an additional plaintiff is the Philippine
Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit
corporation organized for the purpose of, inter alia, engaging in concerted
action geared for the protection of our environment and natural resources.
The original defendant was the Honorable Fulgencio S. Factoran, Jr., then
Secretary of the Department of Environment and Natural Resources
(DENR). His substitution in this petition by the new Secretary, the Honorable
Angel C. Alcala, was subsequently ordered upon proper motion by the
petitioners. 1 The complaint 2 was instituted as a taxpayers' class suit 3 and
alleges that the plaintiffs "are all citizens of the Republic of the Philippines,
taxpayers, and entitled to the full benefit, use and enjoyment of the natural
resource treasure that is the country's virgin tropical forests." The same was
filed for themselves and others who are equally concerned about the
preservation of said resource but are "so numerous that it is impracticable to
bring them all before the Court." The minors further asseverate that they
"represent
their
generation
as
well
as
generations
yet
unborn." 4 Consequently, it is prayed for that judgment be rendered:
. . . ordering defendant, his agents, representatives and
other persons acting in his behalf to
(1) Cancel all existing timber license agreements in the
country;
(2) Cease and desist from receiving, accepting,
processing, renewing or approving new timber license
agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under the
premises." 5
The complaint starts off with the general averments that the Philippine
archipelago of 7,100 islands has a land area of thirty million (30,000,000)
hectares and is endowed with rich, lush and verdant rainforests in which
varied, rare and unique species of flora and fauna may be found; these
rainforests contain a genetic, biological and chemical pool which is
irreplaceable; they are also the habitat of indigenous Philippine cultures
which have existed, endured and flourished since time immemorial; scientific
evidence reveals that in order to maintain a balanced and healthful ecology,

the country's land area should be utilized on the basis of a ratio of fifty-four
per cent (54%) for forest cover and forty-six per cent (46%) for agricultural,
residential, industrial, commercial and other uses; the distortion and
disturbance of this balance as a consequence of deforestation have resulted
in a host of environmental tragedies, such as (a) water shortages resulting
from drying up of the water table, otherwise known as the "aquifer," as well
as of rivers, brooks and streams, (b) salinization of the water table as a
result of the intrusion therein of salt water, incontrovertible examples of
which may be found in the island of Cebu and the Municipality of Bacoor,
Cavite, (c) massive erosion and the consequential loss of soil fertility and
agricultural productivity, with the volume of soil eroded estimated at one
billion (1,000,000,000) cubic meters per annum approximately the size of
the entire island of Catanduanes, (d) the endangering and extinction of the
country's unique, rare and varied flora and fauna, (e) the disturbance and
dislocation of cultural communities, including the disappearance of the
Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and
consequential destruction of corals and other aquatic life leading to a critical
reduction in marine resource productivity, (g) recurrent spells of drought as is
presently experienced by the entire country, (h) increasing velocity of
typhoon winds which result from the absence of windbreakers, (i) the
floodings of lowlands and agricultural plains arising from the absence of the
absorbent mechanism of forests, (j) the siltation and shortening of the
lifespan of multi-billion peso dams constructed and operated for the purpose
of supplying water for domestic uses, irrigation and the generation of electric
power, and (k) the reduction of the earth's capacity to process carbon
dioxide gases which has led to perplexing and catastrophic climatic changes
such as the phenomenon of global warming, otherwise known as the
"greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences of
continued and deforestation are so capable of unquestionable demonstration
that the same may be submitted as a matter of judicial notice. This
notwithstanding, they expressed their intention to present expert witnesses
as well as documentary, photographic and film evidence in the course of the
trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.

8. Twenty-five (25) years ago, the Philippines had some

sixteen (16) million hectares of rainforests constituting
roughly 53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there
remained no more than 1.2 million hectares of said
rainforests or four per cent (4.0%) of the country's land
area.
10. More recent surveys reveal that a mere 850,000
hectares of virgin old-growth rainforests are left, barely
2.8% of the entire land mass of the Philippine archipelago
and about 3.0 million hectares of immature and
uneconomical secondary growth forests.
11. Public records reveal that the defendant's,
predecessors have granted timber license agreements
('TLA's') to various corporations to cut the aggregate area
of 3.89 million hectares for commercial logging purposes.
A copy of the TLA holders and the corresponding areas
covered is hereto attached as Annex "A".
12. At the present rate of deforestation, i.e. about 200,000
hectares per annum or 25 hectares per hour nighttime,
Saturdays, Sundays and holidays included the
Philippines will be bereft of forest resources after the end
of this ensuing decade, if not earlier.
13. The adverse effects, disastrous consequences,
serious injury and irreparable damage of this continued
trend of deforestation to the plaintiff minor's generation
and to generations yet unborn are evident and
incontrovertible. As a matter of fact, the environmental
damages enumerated in paragraph 6 hereof are already
being felt, experienced and suffered by the generation of
plaintiff adults.

14. The continued allowance by defendant of TLA holders

to cut and deforest the remaining forest stands will work
great damage and irreparable injury to plaintiffs
especially plaintiff minors and their successors who
may never see, use, benefit from and enjoy this rare and
unique natural resource treasure.
This act of defendant constitutes a misappropriation
and/or impairment of the natural resource property he
holds in trust for the benefit of plaintiff minors and
succeeding generations.
15. Plaintiffs have a clear and constitutional right to a
balanced and healthful ecology and are entitled to
protection by the State in its capacity as the parens
patriae.
16. Plaintiff have exhausted all administrative remedies
with the defendant's office. On March 2, 1990, plaintiffs
served upon defendant a final demand to cancel all
logging permits in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto
attached as Annex "B".
17. Defendant, however, fails and refuses to cancel the
existing TLA's to the continuing serious damage and
extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to
cancel the TLA's is an act violative of the rights of
plaintiffs, especially plaintiff minors who may be left with a
country that is desertified (sic), bare, barren and devoid of
the wonderful flora, fauna and indigenous cultures which
the Philippines had been abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned
TLA's is manifestly contrary to the public policy enunciated
in the Philippine Environmental Policy which, in pertinent
part, states that it is the policy of the State

(a) to create, develop, maintain and improve conditions

under which man and nature can thrive in productive and
enjoyable harmony with each other;
(b) to fulfill the social, economic and other requirements of
present and future generations of Filipinos and;
(c) to ensure the attainment of an environmental quality
that is conductive to a life of dignity and well-being. (P.D.
1151, 6 June 1977)
20. Furthermore, defendant's continued refusal to cancel
the aforementioned TLA's is contradictory to the
Constitutional policy of the State to
a. effect "a more equitable distribution of opportunities,
income and wealth" and "make full and efficient use of
natural resources (sic)." (Section 1, Article XII of the
Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage
and resources (sic)" (Section 14, Article XIV,id.);
d. "protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm
and harmony of nature." (Section 16, Article II, id.)
21. Finally, defendant's act is contrary to the highest law of
humankind the natural law and violative of plaintiffs'
right to self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy
in law other than the instant action to arrest the unabated
hemorrhage of the country's vital life support systems and
continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a
Motion to Dismiss the complaint based on two (2) grounds, namely: (1) the
plaintiffs have no cause of action against him and (2) the issue raised by the

plaintiffs is a political question which properly pertains to the legislative or

executive branches of Government. In their 12 July 1990 Opposition to the
Motion, the petitioners maintain that (1) the complaint shows a clear and
unmistakable cause of action, (2) the motion is dilatory and (3) the action
presents a justiciable question as it involves the defendant's abuse of
discretion.
On 18 July 1991, respondent Judge issued an order granting the
aforementioned motion to dismiss. 7 In the said order, not only was the
defendant's claim that the complaint states no cause of action against him
and that it raises a political question sustained, the respondent Judge
further ruled that the granting of the relief prayed for would result in the
impairment of contracts which is prohibited by the fundamental law of the
land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule 65
of the Revised Rules of Court and ask this Court to rescind and set aside the
dismissal order on the ground that the respondent Judge gravely abused his
discretion in dismissing the action. Again, the parents of the plaintiffs-minors
not only represent their children, but have also joined the latter in this case. 8
On 14 May 1992, We resolved to give due course to the petition and
required the parties to submit their respective Memoranda after the Office of
the Solicitor General (OSG) filed a Comment in behalf of the respondents
and the petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a
cause of action as it contains sufficient allegations concerning their right to a
sound environment based on Articles 19, 20 and 21 of the Civil Code
(Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating the
DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine
Environmental Policy), Section 16, Article II of the 1987 Constitution
recognizing the right of the people to a balanced and healthful ecology, the
concept of generational genocide in Criminal Law and the concept of man's
inalienable right to self-preservation and self-perpetuation embodied in
natural law. Petitioners likewise rely on the respondent's correlative
obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a
healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged
grave abuse of discretion in granting Timber License Agreements (TLAs) to
cover more areas for logging than what is available involves a judicial
question.

Anent the invocation by the respondent Judge of the Constitution's nonimpairment clause, petitioners maintain that the same does not apply in this
case because TLAs are not contracts. They likewise submit that even if
TLAs may be considered protected by the said clause, it is well settled that
they may still be revoked by the State when the public interest so requires.
On the other hand, the respondents aver that the petitioners failed to allege
in their complaint a specific legal right violated by the respondent Secretary
for which any relief is provided by law. They see nothing in the complaint but
vague and nebulous allegations concerning an "environmental right" which
supposedly entitles the petitioners to the "protection by the state in its
capacity as parens patriae." Such allegations, according to them, do not
reveal a valid cause of action. They then reiterate the theory that the
question of whether logging should be permitted in the country is a political
question which should be properly addressed to the executive or legislative
branches of Government. They therefore assert that the petitioners'
resources is not to file an action to court, but to lobby before Congress for
the passage of a bill that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the
same cannot be done by the State without due process of law. Once issued,
a TLA remains effective for a certain period of time usually for twenty-five
(25) years. During its effectivity, the same can neither be revised nor
cancelled unless the holder has been found, after due notice and hearing, to
have violated the terms of the agreement or other forestry laws and
regulations. Petitioners' proposition to have all the TLAs indiscriminately
cancelled without the requisite hearing would be violative of the
requirements of due process.
Before going any further, We must first focus on some procedural matters.
Petitioners instituted Civil Case No. 90-777 as a class suit. The original
defendant and the present respondents did not take issue with this matter.
Nevertheless, We hereby rule that the said civil case is indeed a class suit.
The subject matter of the complaint is of common and general interest not
just to several, but to all citizens of the Philippines. Consequently, since the
parties are so numerous, it, becomes impracticable, if not totally impossible,
to bring all of them before the court. We likewise declare that the plaintiffs
therein are numerous and representative enough to ensure the full
protection of all concerned interests. Hence, all the requisites for the filing of
a valid class suit under Section 12, Rule 3 of the Revised Rules of Court are
present both in the said civil case and in the instant petition, the latter being
but an incident to the former.

This case, however, has a special and novel element. Petitioners minors
assert that they represent their generation as well as generations yet
unborn. We find no difficulty in ruling that they can, for themselves, for others
of their generation and for the succeeding generations, file a class suit. Their
personality to sue in behalf of the succeeding generations can only be based
on the concept of intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Such a right, as hereinafter
expounded,
considers
the "rhythm and harmony of nature." Nature means the created world in its
entirety. 9 Such rhythm and harmony indispensably include, inter alia, the
judicious disposition, utilization, management, renewal and conservation of
the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas
and other natural resources to the end that their exploration, development
and utilization be equitably accessible to the present as well as future
generations. 10 Needless to say, every generation has a responsibility to the
next to preserve that rhythm and harmony for the full enjoyment of a
balanced and healthful ecology. Put a little differently, the minors' assertion
of their right to a sound environment constitutes, at the same time, the
performance of their obligation to ensure the protection of that right for the
generations to come.
The locus standi of the petitioners having thus been addressed, We shall
now proceed to the merits of the petition.
After a careful perusal of the complaint in question and a meticulous
consideration and evaluation of the issues raised and arguments adduced
by the parties, We do not hesitate to find for the petitioners and rule against
the respondent Judge's challenged order for having been issued with grave
abuse of discretion amounting to lack of jurisdiction. The pertinent portions
of the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the
Complaint, the Court cannot help but agree with the
defendant. For although we believe that plaintiffs have but
the noblest of all intentions, it (sic) fell short of alleging,
with sufficient definiteness, a specific legal right they are
seeking to enforce and protect, or a specific legal wrong
they are seeking to prevent and redress (Sec. 1, Rule 2,
RRC). Furthermore, the Court notes that the Complaint is
replete with vague assumptions and vague conclusions
based on unverified data. In fine, plaintiffs fail to state a

cause of action in its Complaint against the herein

defendant.
Furthermore, the Court firmly believes that the matter
before it, being impressed with political color and involving
a matter of public policy, may not be taken cognizance of
by this Court without doing violence to the sacred principle
of "Separation of Powers" of the three (3) co-equal
branches of the Government.
The Court is likewise of the impression that it cannot, no
matter how we stretch our jurisdiction, grant the reliefs
prayed for by the plaintiffs, i.e., to cancel all existing timber
license agreements in the country and to cease and desist
from receiving, accepting, processing, renewing or
approving new timber license agreements. For to do
otherwise would amount to "impairment of contracts"
abhored (sic) by the fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to
allege with sufficient definiteness a specific legal right involved or a specific
legal wrong committed, and that the complaint is replete with vague
assumptions and conclusions based on unverified data. A reading of the
complaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal right the right to
a balanced and healthful ecology which, for the first time in our nation's
constitutional history, is solemnly incorporated in the fundamental law.
Section 16, Article II of the 1987 Constitution explicitly provides:
Sec. 16. The State shall protect and advance the right of
the people to a balanced and healthful ecology in accord
with the rhythm and harmony of nature.
This right unites with the right to health which is provided
for in the preceding section of the same article:
Sec. 15. The State shall protect and promote the right to
health of the people and instill health consciousness
among them.

While the right to a balanced and healthful ecology is to be found under the
Declaration of Principles and State Policies and not under the Bill of Rights,
it does not follow that it is less important than any of the civil and political
rights enumerated in the latter. Such a right belongs to a different category of
rights altogether for it concerns nothing less than self-preservation and selfperpetuation aptly and fittingly stressed by the petitioners the
advancement of which may even be said to predate all governments and
constitutions. As a matter of fact, these basic rights need not even be written
in the Constitution for they are assumed to exist from the inception of
humankind. If they are now explicitly mentioned in the fundamental charter, it
is because of the well-founded fear of its framers that unless the rights to a
balanced and healthful ecology and to health are mandated as state policies
by the Constitution itself, thereby highlighting their continuing importance
and imposing upon the state a solemn obligation to preserve the first and
protect and advance the second, the day would not be too far when all else
would be lost not only for the present generation, but also for those to come
generations which stand to inherit nothing but parched earth incapable of
sustaining life.
The right to a balanced and healthful ecology carries with it the correlative
duty to refrain from impairing the environment. During the debates on this
right in one of the plenary sessions of the 1986 Constitutional Commission,
the following exchange transpired between Commissioner Wilfrido Villacorta
and Commissioner Adolfo Azcuna who sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to
provide sanctions against all forms of
pollution air, water and noise
pollution?
MR. AZCUNA:
Yes, Madam President. The right to
healthful (sic) environment necessarily
carries with it the correlative duty of not
impairing the same and, therefore,
sanctions may be provided for
impairment of environmental balance. 12
The said right implies, among many other things, the judicious management
and conservation of the country's forests.

Without such forests, the ecological or environmental balance

would be irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful ecology
and the right to health, as well as the other related provisions of the
Constitution concerning the conservation, development and utilization of the
country's natural resources, 13 then President Corazon C. Aquino
promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of which expressly
mandates that the Department of Environment and Natural Resources "shall
be the primary government agency responsible for the conservation,
management, development and proper use of the country's environment and
natural resources, specifically forest and grazing lands, mineral, resources,
including those in reservation and watershed areas, and lands of the public
domain, as well as the licensing and regulation of all natural resources as
may be provided for by law in order to ensure equitable sharing of the
benefits derived therefrom for the welfare of the present and future
generations of Filipinos." Section 3 thereof makes the following statement of
policy:
Sec. 3. Declaration of Policy. It is hereby declared the
policy of the State to ensure the sustainable use,
development, management, renewal, and conservation of
the country's forest, mineral, land, off-shore areas and
other natural resources, including the protection and
enhancement of the quality of the environment, and
equitable access of the different segments of the
population to the development and the use of the country's
natural resources, not only for the present generation but
for future generations as well. It is also the policy of the
state to recognize and apply a true value system including
social and environmental cost implications relative to their
utilization, development and conservation of our natural
resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the
Administrative Code of 1987, 15specifically in Section 1 thereof which reads:
Sec. 1. Declaration of Policy. (1) The State shall
ensure, for the benefit of the Filipino people, the full
exploration and development as well as the judicious
disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land, waters,
fisheries, wildlife, off-shore areas and other natural

resources, consistent with the necessity of maintaining a

sound ecological balance and protecting and enhancing
the quality of the environment and the objective of making
the exploration, development and utilization of such
natural resources equitably accessible to the different
segments of the present as well as future generations.
(2) The State shall likewise recognize and apply a true
value system that takes into account social and
environmental cost implications relative to the utilization,
development and conservation of our natural resources.
The above provision stresses "the necessity of maintaining a sound
ecological balance and protecting and enhancing the quality of the
environment." Section 2 of the same Title, on the other hand, specifically
speaks of the mandate of the DENR; however, it makes particular reference
to the fact of the agency's being subject to law and higher authority. Said
section provides:
Sec. 2. Mandate. (1) The Department of Environment
and Natural Resources shall be primarily responsible for
the implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in
charge of carrying out the State's constitutional mandate
to control and supervise the exploration, development,
utilization, and conservation of the country's natural
resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the
objectives which will serve as the bases for policy formulation, and have
defined the powers and functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987
Constitution, specific statutes already paid special attention to the
"environmental right" of the present and future generations. On 6 June 1977,
P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152
(Philippine Environment Code) were issued. The former "declared a
continuing policy of the State (a) to create, develop, maintain and improve
conditions under which man and nature can thrive in productive and
enjoyable harmony with each other, (b) to fulfill the social, economic and
other requirements of present and future generations of Filipinos, and (c) to
insure the attainment of an environmental quality that is conducive to a life of

dignity and well-being." 16 As its goal, it speaks of the "responsibilities of

each generation as trustee and guardian of the environment for succeeding
generations." 17 The latter statute, on the other hand, gave flesh to the said
policy.
Thus, the right of the petitioners (and all those they represent) to a balanced
and healthful ecology is as clear as the DENR's duty under its mandate
and by virtue of its powers and functions under E.O. No. 192 and the
Administrative Code of 1987 to protect and advance the said right.
A denial or violation of that right by the other who has the corelative duty or
obligation to respect or protect the same gives rise to a cause of action.
Petitioners maintain that the granting of the TLAs, which they claim was
done with grave abuse of discretion, violated their right to a balanced and
healthful ecology; hence, the full protection thereof requires that no further
TLAs should be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal
right or rights of the other; and its essential elements are
legal right of the plaintiff, correlative obligation of the
defendant, and act or omission of the defendant in
violation of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the ground
that the complaint fails to state a cause of action, 19 the question submitted
to the court for resolution involves the sufficiency of the facts alleged in the
complaint itself. No other matter should be considered; furthermore, the truth
of falsity of the said allegations is beside the point for the truth thereof is
deemed hypothetically admitted. The only issue to be resolved in such a
case is: admitting such alleged facts to be true, may the court render a valid
judgment in accordance with the prayer in the complaint? 20 InMilitante vs.
Edrosolano, 21 this Court laid down the rule that the judiciary should
"exercise the utmost care and circumspection in passing upon a motion to
dismiss on the ground of the absence thereof [cause of action] lest, by its
failure to manifest a correct appreciation of the facts alleged and deemed
hypothetically admitted, what the law grants or recognizes is effectively
nullified. If that happens, there is a blot on the legal order. The law itself
stands in disrepute."
After careful examination of the petitioners' complaint, We find the
statements under the introductory affirmative allegations, as well as the

specific averments under the sub-heading CAUSE OF ACTION, to be

adequate enough to show, prima facie, the claimed violation of their rights.
On the basis thereof, they may thus be granted, wholly or partly, the reliefs
prayed for. It bears stressing, however, that insofar as the cancellation of the
TLAs is concerned, there is the need to implead, as party defendants, the
grantees thereof for they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political
question. Policy formulation or determination by the executive or legislative
branches of Government is not squarely put in issue. What is principally
involved is the enforcement of a right vis-a-vis policies already formulated
and expressed in legislation. It must, nonetheless, be emphasized that the
political question doctrine is no longer, the insurmountable obstacle to the
exercise of judicial power or the impenetrable shield that protects executive
and legislative actions from judicial inquiry or review. The second paragraph
of section 1, Article VIII of the Constitution states that:
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.
Commenting on this provision in his book, Philippine Political Law, 22 Mr.
Justice Isagani A. Cruz, a distinguished member of this Court, says:
The first part of the authority represents the traditional
concept of judicial power, involving the settlement of
conflicting rights as conferred as law. The second part of
the authority represents a broadening of judicial power to
enable the courts of justice to review what was before
forbidden territory, to wit, the discretion of the political
departments of the government.

As worded, the new provision vests in the judiciary, and

particularly the Supreme Court, the power to rule upon
even the wisdom of the decisions of the executive and the
legislature and to declare their acts invalid for lack or
excess of jurisdiction because tainted with grave abuse of
discretion. The catch, of course, is the meaning of "grave
abuse of discretion," which is a very elastic phrase that
can expand or contract according to the disposition of the
judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
In the case now before us, the jurisdictional objection
becomes even less tenable and decisive. The reason is
that, even if we were to assume that the issue presented
before us was political in nature, we would still not be
precluded from revolving it under the expanded jurisdiction
conferred upon us that now covers, in proper cases, even
the political question. Article VII, Section 1, of the
Constitution clearly provides: . . .
The last ground invoked by the trial court in dismissing the complaint is the
non-impairment of contracts clause found in the Constitution. The court a
quo declared that:

correctly pointed out by the petitioners, into every timber license must be
read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides:
. . . Provided, That when the national interest so requires,
the President may amend, modify, replace or rescind any
contract, concession, permit, licenses or any other form of
privilege granted herein . . .
Needless to say, all licenses may thus be revoked or rescinded by
executive action. It is not a contract, property or a property right
protested by the due process clause of the Constitution. In Tan vs.
Director of Forestry, 25 this Court held:
. . . A timber license is an instrument by which the State
regulates the utilization and disposition of forest resources
to the end that public welfare is promoted. A timber license
is not a contract within the purview of the due process
clause; it is only a license or privilege, which can be validly
withdrawn whenever dictated by public interest or public
welfare as in this case.
A license is merely a permit or privilege to do what
otherwise would be unlawful, and is not a contract
between the authority, federal, state, or municipal, granting
it and the person to whom it is granted; neither is it
property or a property right, nor does it create a vested
right; nor is it taxation (37 C.J. 168). Thus, this Court held
that the granting of license does not create irrevocable
rights, neither is it property or property rights (People vs.
Ong Tin, 54 O.G. 7576).

The Court is likewise of the impression that it cannot, no

matter how we stretch our jurisdiction, grant the reliefs
prayed for by the plaintiffs, i.e., to cancel all existing timber
license agreements in the country and to cease and desist
from receiving, accepting, processing, renewing or
approving new timber license agreements. For to do
otherwise would amount to "impairment of contracts"
abhored (sic) by the fundamental law. 24

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs.
Deputy Executive Secretary: 26

We are not persuaded at all; on the contrary, We are amazed, if not

shocked, by such a sweeping pronouncement. In the first place, the
respondent Secretary did not, for obvious reasons, even invoke in his motion
to dismiss the non-impairment clause. If he had done so, he would have
acted with utmost infidelity to the Government by providing undue and
unwarranted benefits and advantages to the timber license holders because
he would have forever bound the Government to strictly respect the said
licenses according to their terms and conditions regardless of changes in
policy and the demands of public interest and welfare. He was aware that as

. . . Timber licenses, permits and license agreements are

the principal instruments by which the State regulates the
utilization and disposition of forest resources to the end
that public welfare is promoted. And it can hardly be
gainsaid that they merely evidence a privilege granted by
the State to qualified entities, and do not vest in the latter
a permanent or irrevocable right to the particular
concession area and the forest products therein. They
may be validly amended, modified, replaced or rescinded

by the Chief Executive when national interests so require.

Thus, they are not deemed contracts within the purview of
the due process of law clause [See Sections 3(ee) and 20
of Pres. Decree No. 705, as amended. Also, Tan v.
Director of Forestry, G.R. No. L-24548, October 27, 1983,
125 SCRA 302].

The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted
in Philippine American Life Insurance Co. vs. Auditor General, 30 to wit:
Under our form of government the use of property and the
making of contracts are normally matters of private and
not of public concern. The general rule is that both shall be
free of governmental interference. But neither property
rights nor contract rights are absolute; for government
cannot exist if the citizen may at will use his property to
the detriment of his fellows, or exercise his freedom of
contract to work them harm. Equally fundamental with the
private right is that of the public to regulate it in the
common interest.

Since timber licenses are not contracts, the non-impairment clause, which
reads:
Sec. 10. No law impairing, the obligation of contracts shall
be passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the same are contracts,
the instant case does not involve a law or even an executive issuance
declaring the cancellation or modification of existing timber licenses. Hence,
the non-impairment clause cannot as yet be invoked. Nevertheless, granting
further that a law has actually been passed mandating cancellations or
modifications, the same cannot still be stigmatized as a violation of the nonimpairment clause. This is because by its very nature and purpose, such as
law could have only been passed in the exercise of the police power of the
state for the purpose of advancing the right of the people to a balanced and
healthful ecology, promoting their health and enhancing the general welfare.
In Abe
vs.
Foster
Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government,
is not meant to be absolute. The same is understood to be
subject to reasonable legislative regulation aimed at the
promotion of public health, moral, safety and welfare. In
other words, the constitutional guaranty of non-impairment
of obligations of contract is limited by the exercise of the
police power of the State, in the interest of public health,
safety, moral and general welfare.

In short, the non-impairment clause must yield to the police power of the
state. 31
Finally, it is difficult to imagine, as the trial court did, how the non-impairment
clause could apply with respect to the prayer to enjoin the respondent
Secretary from receiving, accepting, processing, renewing or approving new
timber licenses for, save in cases of renewal, no contract would have as of
yet existed in the other instances. Moreover, with respect to renewal, the
holder is not entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition is hereby
GRANTED, and the challenged Order of respondent Judge of 18 July 1991
dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may
therefore amend their complaint to implead as defendants the holders or
grantees of the questioned timber license agreements.
No pronouncement as to costs.
SO ORDERED.